Article 258/259

Question 1

Role of commission in 258 proceedings
State relevant articles

Answer 1

To act as prosecutor against country that is in breach of EU Law

Article 17(1)
Article 258

Question 2

Article 17(1)

Answer 2

The commission is the guardian of the treaties

Question 3

Article 258

Answer 3

The commission can send a delivered opinion to member state which it alleges to have breached EU Law
If member state refuses to comply, can bring to the CJEU to enforce compliance

Question 4

2 main features of the mechanism

Answer 4

Taken by the comission
On its own volition/ following a complaint

Taken in reference to
Acts or omissions by member states
Breaches of
Treaty obligations
Secondary legislation
CJEU decisions

CJEU can make indirect findings of a leg being contrary to the EU and the commission can take 258 proceedings to enforce compliance

Question 5

Process of article 258 action

Answer 5

1. Pre contentious stage- asks questions to member state regarding compliance
2. Formal notification stage
   Sends a notice on alleged breach and asks state to respond

3 reasoned opinion
Outlines the breach and measures needed to be taken to be compliant

4 reference to CJEU
If refuse to comply still

Question 6

Article 258 is relevant for persistent and ongoing breaches
State case

Answer 6

C494 01 commission v Ireland

Question 7

C494/01 comission v Ireland

Answer 7

Concerned Irelands failure to abide by EU environmental standards
Lead to ongoing and persistent breach

The comission can alter the complaint / grounds of the complaint on the basis of new facts and evidence to evolve to the new circumstances
Held: Citizens can play a significant role in 258 proceedings.
The commission is an investigative service and as a result, could make significant findings.
Citizens can play a role by notifying the commission of a breach of EU law and by submitting evidence if an investigation is ongoing.
Participatory democracy: Article 258 is a mechanism for judicial review that allows citizens to directly engage with the European Union.
Advantage for citizens: No specified procedure involved/no financial resources involved.
The commission in receipt of these complaints decides whether/not to act on its own volition.

Significance:
Article 258 is one of the most accessible means for individual citizens to enforce EU law.
Caveat: Does not provide individual remedies for rights infringements.
The remedy focuses on the general public good.
NB: Article 258 is not an individualised mechanism, it is a general objective.

Question 8

Does the comission have discretion
who comments on htis ?

Answer 8

The Commission has the capacity to make decisions to commence proceedings of its own volition.
Even if an individual citizen makes a complaint, the Commission is not obliged to act on foot of that.
The Commission has discretion not to proceed.

TC hartley

Question 9

TC hartley

Answer 9

It would be unreasonable to hold that there’s absolute enforcement on the commission in every case where an alleged violation has occurred.
However, it is equally wrong to assume that there is no obligation at all.
The commission has discretion but is subject to a duty to take the most appropriate action to make sure EU law is respected.
Infringement proceedings may not be the best mechanism and informal engagement may lead to a better result.
Guardian of the treaty: The duty to take appropriate action to make sure that EU law is observed and enforced.

Question 10

Pre contentious stage

Answer 10

An informal stage.
The commission goes to the member state and states concerns on a provision of national law.
Requests the member states to explain their position either through explanation/justification.
Aim: To allow the member state to engage in discussion to reach a negotiation through the opportunity to explain.
Preferred result: The agreement contains steps the member state has to follow in order to not be in breach.
Consequential result: The formal settlement breaks down as the member state believes that they are not in breach.

Question 11

Formal notice stage

Answer 11

The commission provides a reason for the investigation.
Provides the member state time to reply.
If this doesn’t work and the observation is that the member state is still acting contrary to the EU, the commission may issue a reasoned opinion.

Question 12

Reasoned opinion

Answer 12

Issues a finding of non-compliance: Whether the member state has breached EU law or not.
The member state is given time to comply.
At this stage, they are required to comply.
They may respond to the reasoned opinion with a defence but once the opinion is issued, they must bring themselves in compliance with EU law.
If they continue to refuse to follow the reasoned opinion, a reference is made to the CJEU.

Question 13

Reference to CJEU

Answer 13

Reference to the CJEU:
The CJEU is asked to enforce compliance.
Declaratory power: Declares that the member state is not in compliance with the EU.
Fining jurisdiction: Imposes fines on individual member states.
2 mechanisms:
Lump sum fines.
Daily fines.

Question 14

Penalties jurisdiciton

Answer 14

`commission communication financial sanction
In determining the lump sum must consider:
The capacity of the member state to pay.
The ’n-factor’:
Capacity for the member state to pay.
The seriousness of the infringement: Is the breach minor or significant?
The duration of the infringement.

NB: The fine must be proportionate but still act as an effective deterrent.

Note: The 2023 communication set an updated “minimum lump sum” and “special n factor” for Member States, in the calculation of fines:
Ireland’s minimum lump sum is set at €1,540,000.
Paid for each extra day EU law is breached

Daily fine:
No maximum sum in terms of the ultimate fine.
Can decide on a daily rate and continue to impose that for every day the member state is in breach.
No upper limit.

Question 15

CCase study

Answer 15

Ireland
Always breaching

Question 16

Cases

Answer 16

Case C-279/11 Commission v Ireland
C288-08 Comission v Ireland

Question 17

Case C-279/11 Commission v Ireland

Answer 17

Facts: Concerned Ireland’s failure to comply with environmental impact assessment on salmon farms.
It was alleged that the farms had taken place under legislation that did not correctly transpose the relevant environmental impact directive.

Held: The CJEU gave their judgement in 2009 but Ireland only complied in 2011.
Ireland fined with a lump sum of 1.5 million.
Considering Ireland’s status at the time, the recession had made it so that Ireland would not be able to pay a higher lump sum along with a daily fine.

Note: The CJEU did not have to comply with the Commission recommendation, it can be harsher or more lenient.

Question 18

C 288 08

Answer 18

Case C-188/08 Commission v Ireland

Facts: Concerned an environmental directive that was not transposed in regards to the discharge of wastewater in septic tanks.
All counties except for Cavan were in breach.

Held: A full 258 procedure was implemented.
Ireland was found to be in breach.
A lump sum penalty of 2 million euros and a daily fine of 12,500 euros.

Question 19

Peristent and ongoing cases of same kind state situation
State case

Answer 19

Situation:
The commission may begin a process of investigation and issue the initial notice.
More facts may come to light and will be included in a recent opinion and then would have to be reflected in the CJEU decision.

Case C-494/01 Commission v Ireland

Question 20

Case C-494/01 Commission v Ireland

Answer 20

Facts: Concerned dumping.
There was an assertion that Ireland persistently didn’t comply, and other instances should have been considered.

Held: If there is a persistent and ongoing violation, all circumstances can be taken into account as long as they do not alter the subject matter of the dispute.
Additional allegations can be added as it was just a further indication of what was occurring.

Question 21

Potential defences under 258

Answer 21

1. other member sttate did it
2. Force majeure- unforseen event
3. Lack of deliberate wrongdoing
4. Timeline of events made to be in compliance w EU law

Question 22

1. other member sttate did it

Answer 22

Not a defence

Question 23

2. Force majeure- unforseen event
   State cases

Answer 23

Comission v Belgium
Comission v Italy

Question 24

Comission v Belgium

Answer 24

Facts: Concerned Belgium’s transposition of EU law.
Parliament was dissolved and as a result, legislation could not be enacted.
This meant that amendments needed for certain legislation to comply with EU law couldn’t progress.

Held: CJEU were unsympathetic.
The fact that the parliament dissolved was not their concern.

Question 25

Comission v Italy

Answer 25

Facts: Concerned the national institution engaged in transposing EU law into national law. They were bombed so they lost all their data and equipment. By the time it reached the court of justice, there was a significant delay in getting info transposed. Held: Intervening acts can be a defence, but only a defence for a certain period of time, CJEU will consider the time that it is reasonably necessary to reestablish the data in another location. After that time runs out, the member state will begin to be fined.

Question 26

Lack of deliberate wronmgdoing state case

Answer 26

The issue is whether or not there is a breach of EU law, not whether the member state did it on purpose: C-729/17 Commission v Greece

Question 27

Comisison v Greece

Answer 27

Facts: Concerned a national law that was incompatible with the EU treaties at the time. Held: If the member state thought there was a lack of compliance between national law and the EC because of the fault of a directive being interposed and not because of the member state itself, it cannot bring up that defence in 258 proceedings. The directive must be challenged through 263 proceedings.

Question 28

4. Timeline of events made to be in compliance w EU law

Answer 28

Not a defence cbut could be considered when imoosing the fine

Question 29

Article 259

Answer 29

Provides for enforcement actions by one Member State against another Member State. It is a way for one member state to allege when another member state hasn't complied with EU law and try to force it to comply. Article 259 TFEU provides:  A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.  Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission.  The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such an opinion shall not prevent the matter from being brought before the Court.  The commission doesn't investigate: It is up to the member state alleging breach to discharge the burden of proof. Note: This mechanism is very rarely used. The commission acts as a referee and delivers an opinion on whether or not EU law has been breached. The CJEU can step in and intervene when the member state has not complied within the prescribed time period.

Question 30

State relevant cases

Answer 30

French v UK Belgium v Spain

Question 31

French republic v UK

Answer 31

Facts: Concerned UK legislation about the size of the mesh to use in fishing nets in the UK for shrimp. There was an allegation that French ships were using nets where the mesh was too small. As a result, the owners were prosecuted. The French government took the view that the measure the UK took was contrary to EU law and introduced a more rigid standard than the EU mandated, and this hindered the fundamental freedoms of the workers. Held: CJEU found in France’s favour.

Question 32

Belgium v Spain

Answer 32

Facts: Several other member states joined Belgium in its claim to sue Spain which had a royal decree enforced on a wine. The member states argued that they should be allowed to name the wine whatever they wanted. Spain argued that the wine had a certain prestige and, therefore was labelled as such to protect their cultural heritage. Held: CJEU emphasised proportionality and reputation. If other member states were to weigh in, the court must weigh the proportionality of intervening. There may be cases where it is inappropriate for the court to intervene.