1. Action for infringement Flashcards
legal basis?
Art. 258-260 + 270 TFEU
the objective of the procedure?
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)
who is involved?
- 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 - Article 271d TFEU: National Central banks can be attacked if a national central bank violates EU law
which breaches of EU law?
failure to comply with an obligation under EU law.
what does “obligation under EU law” mean?
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
Can you bring an action for infringement against a MS that violates a general principle
in international law?
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.)
Can you bring an action for infringement for not complying with the excessive deficit procedure?
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.
Can you bring an action for infringement regarding the CFSP provisions?
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-).
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?
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.
Three exceptions where the failure cannot give rise to an action for ifnirngement
- Art. 126 (10)
- Art. 275 (1)
- Art 276
what is the “infringement”?
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.
can you bring an action for infringement that is only partial, did not cause any damages and was not intentional?
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
What does sensu latissimo mean?
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)
Justifications for action for infringement?
FORCE MAJEURE or ABSOLUTE IMPOSSIBILITY TO ACT
how can the MS win the case in infringement action?
- 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.