1. Action for infringement

Question 1

legal basis?

Answer 1

Art. 258-260 + 270 TFEU

Question 2

the objective of the procedure?

Answer 2

CJEU declaring that a MS has violated EU law.

Declaration did not mean sanctions or punishment - it is a declaratory judgement.

However, nowadays the member states can be condemned.

Also in the old system, the violation of EU la can grant liability and can be used as a basis for pleadings.

EU law as a citizens right can be invoked against MS for violating EU law (direct effect, supremacy)

Question 3

who is involved?

Answer 3

1. Article 258 TFEU: If the Commission consider that a MS has failed to fulfil an obligation under the Treaties, the MS can be attacked
   + Article 271a TFEU: European Investment Bank: the Board of Directors are consisted of 27 MS. This is a type of MS liability as well
2. Article 271d TFEU: National Central banks can be attacked if a national central bank violates EU law

Question 4

which breaches of EU law?

Answer 4

failure to comply with an obligation under EU law.

Question 5

what does “obligation under EU law” mean?

Answer 5

All the parts in EU law:
Primary law (treaties, Charter)

Secondary law (binding acts as regulations, directives, decisions)

Conventional EU law (international agreements concluded by the EU)

Also the general principles recognised by CoJ

Question 6

Can you bring an action for infringement against a MS that violates a general principle
in international law?

Answer 6

You cannot attack a MS for infringement unless the conduct of the MS falls within the scope of EU law. So only the breach of principles recognised by CoJ (proportionality, legitimate expectations etc.)

Question 7

Can you bring an action for infringement for not complying with the excessive deficit procedure?

Answer 7

NO - Art. 126 (10) TFEU says that the right to bring actions may not be exercised in the excessive deficit procedure described in paras 1-9.
EXCEPT if a MS persists to put into practice the recommendation of the Council, the Council may decide to give notice to the MS to take necessary measures. These measures can be political/financial sanctions but not decided by the Court - the other MS may decide on it.

Question 8

Can you bring an action for infringement regarding the CFSP provisions?

Answer 8

NO - Art. 275(1) TFEU says no jurisdiction for the Court. However, two exceptions para 2:

• The first one is art 40 TEU, the CoJ keeps jurisdiction to decide where the border is between common foreign security policy and the rest of EU law.
• Second exception: The CoJ has jurisdiction to rule on proceedings brought in accordance with the fourth paragraph of art 263 (-action for annulment-).

Question 9

Can you bring an action for infringement regarding judicial cooperation in criminal matters and police cooperation if they violate the Charter of the Fundamental Rights?

Answer 9

NO - Art. 276 TFEU: failure cannot give rise to an infringement action.

The exception applies even if the police operation in a MS was infringing the Charter of the Fundamental rights.

Question 10

Three exceptions where the failure cannot give rise to an action for ifnirngement

Answer 10

• Art. 126 (10)
• Art. 275 (1)
• Art 276

Question 11

what is the “infringement”?

Answer 11

infringement can mean:

• an action: e.g. a legislative act or a general and constant administrative practice)
• an omission: e.g. a signature of an international agreement inconsistent with EU law or transposing incorrectly/not transposing at all a directive.

Question 12

can you bring an action for infringement that is only partial, did not cause any damages and was not intentional?

Answer 12

YES - the infringement can be
full or partial
objectively analysed - case Commission v. France (fishing quotas)
intentional or not - only material element counts
HOWEVER, sensu latissimo - the infringement must be attributable to the MS

Question 13

What does sensu latissimo mean?

Answer 13

Sensu latissimo is a requirement of the action for infringement: the infringement must be attributable tot he MS.
This also means the state is one - for ex. Belgium cannot say that it is not violating EU law because Antwerp is not complying with it.
- Commission v Ireland (Buy Irish)
- Commission v France (blocking the movement)

The state is one, both vertically and horizontally. At all times of powers are to be considered as expression fo authority of the MS.

• Commission v Germany (municipality did not respect EU law in terms of public market)
• Belgium 27/03 (purification of waters) Court said that the internal organisation is not an excuse for infringement of the public authorities
• Commission v France (non-application of tax case law by the administrative court)

Question 14

Justifications for action for infringement?

Answer 14

FORCE MAJEURE or ABSOLUTE IMPOSSIBILITY TO ACT

Question 15

how can the MS win the case in infringement action?

Answer 15

• procedural reasons: Commission did not respect the procedure
• the Commission did not prove the existence fo the infringement or interpreted EU law in the wrong way.

Question 16

who has the power to introduce and action for infringement?

Answer 16

• the Commission MAY (Art.258)
• MS can bring an action against another MS (Art. 259)
• EIB against the MS as member of the board of directors (Art. 271a)
• ECB against national central bank (Art. 271d)
• NO INDIVIDUALS

Question 17

Can an individual bring an action against a MS?

Answer 17

NO - action for infringement is not available for individuals. You can write a letter to the Commission
(but declaration of infringement may grant liability of MS towards individuals)

Question 18

Can a MS bring an action against the Commission for not bringing an infringement action against a MS?

Answer 18

NO - Art- 258 uses the wording “MAY”
This means absolute margin of appreciation
The commission is never obliged to do it.
You may not act for annulment for the Commission for refusing to challenge a MS

Question 19

What are the informal contacts?

Answer 19

The member states have a duty of sincere cooperation. The member states have to adduce counterarguments, but they have to cooperate in good faith and have to provide the Commission with all the needed information.
The procedure does not have the objective of condemning a member state. The objective is to eliminate the infringement. Hence, even before the procedure, there are always informal contacts between the member state and Commission. These informal contacts have the objective of eliminating the possible infringement or convince the commission that there is no infringement. It will avoid many infringement procedure from going to court.

Question 20

Procedure

Answer 20

1. Administrative or pre-litigation stage
   i. Letter of formal notice
   ii. Reasoned opinion
2. Judicial stage
   i. the Commission may refer the matter to the Court of Justice
   ii. the existence of the infringement can be assessed only at the expiry of the reasonable period of time set in the reasoned opinion

Question 21

Can the Commission bring an infringement procedure against more than one MS?

Answer 21

yes

Question 22

Can you bring an action for infringement without administrative/pre-litigation stage?

Answer 22

yes, in certain cases:

• Art. 108 (2) - state aid
• Art. 114 (2) - harmonising nat’l legislation
• Art. 348 (2)

Question 23

Can the Commission reduce the subject matter of the dispute determined in the reasoned opinion?

Answer 23

yes - The Commission may still decide to reduce the subject matter of the dispute, if the member state has partially complied with its obligations after the reasoned opinion.
However, after the reasoned opinion, the subject matter cannot be extended. If the commission is convinced that not (only) the legislation is inconsistent with eu law, but also the application or if the commission is convinced that more articles apply than set out in the reasoned opinion, its only option is to restart the procedure from the beginning.

Question 24

When the existence of the infringement can be assessed?

Answer 24

The existence of the infringement can be assessed only at the expiry of the reasonable period of time set in the reasoned opinion the application is inconsistent. Remember the case Commission v Poland.

Question 25

What is the effect of the judgment?

Answer 25

The effects are described in Art. 260(1) TFEU.
That is a declaratory judgement: the court finds that a MS failed to fulfil an obligation.

In principle there is no sanction.

The CJ will not give an injunction. There is an implicit injunction – the injunction to execute the judgement and correcting the infringement. Even if the court does not give an injunction in the judgement, this article Provides for that the MS shall be required to take the necessary measures to comply with the judgement.

Question 26

What is the significance of Maastricht treaty?

Answer 26

Before Maastricht Treaty, there were no sanctions - only a declaration of infringement of EU law.
Maastricht Treaty was a new important step further because 260(2) says that if a MS does not comply with the judgement of the court, the COM may start again a second procedure as before with all the necessary stages. This is the same procedure as the first one BUT the COM may propose to the court to impose financial penalties! According to 260(2), these can be a lump sum or a penalty payment to be paid by the MS concerned.

Question 27

What is the significance of Lisbon Treaty?

Answer 27

Art 260(3) has given to the COM the possibility to request a financial sanction EVEN in the FIRST infringement action. 
However, this applies only If a MS has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure.

Question 28

Can you apply for a financial sanctions for a MS not notifying for a transposition of a directive?

Answer 28

Art. 260(3) allows for financial sanction for the infringement action if a MS has failed to notify measures transposing a directive..

However, definition of this failure is dependent on case law.

Com v. Belgium 543/17: the Court applied Art. 260(3) because there is no transposition of the directive. And if there is no transposition, there is of course no notification of the measures.

The court has applied these arguments in other cases against Rumania, irleand or Slovenia, if the information/the notification of the measures is insufficiently clear and precise.

Also, if the measures that you have notified are not intended to transpose the directive (bad faith/will). If, for example, the provisions do not concern the whole territory of the whole MS concerned - it is an incomplete notification.

Question 29

Can the Court exceed the amount proposed by the Commission on action based on Article 260(3)?

Answer 29

Here, the court may not exceed the amount proposed by the COM
Art. 260 (3) al 2

Question 30

Which is the competent court?

Answer 30

That is the exclusive competence of the CJ! The GC has no jurisdiction for the infringement actions.
Art. 256(1) TFEU and the statue of the court of justice could give this competence to the GC. However, there is no chance that this will happen within a limited period of time.

Question 31

What can a MS do if they are not content with the execution of the judgment?
E.g. the MS thinks that the COM exaggerated the duration of the penalty payment and the COM decides e.g. to confirm this amount to be paid to the budget of the EU and the MS does not agree.

Answer 31

The MS may bring a procedure to get the annulment of the decision of the COM before the GC!
But be aware the Art. 51b of the statute of the court says that this type of action for annulment will be brought before the CJ by the MS. DONT GET CONFUSED WITH 256(1)