commission enforcement Flashcards
(18 cards)
the commission
the commission has a role in proposing legislation and enforcing it
the centrazlised enforcement of EU law
article 258 TFEU
The Enforcement of European Law Against Member States by the Commission
the commission looking into breaches of EU law and trying to remedy them
if commission considers that a MS has failed to fulfil an obligation under the treaty, it shall deliver a reasoned opinion after giving the state the opportunity to submit its observation
if state does not comply with opinion within period laid does- may bring before CJEU
CJEU uphold commission action against state even if the damage is minimal- commission v germany 2003
Chalmers et al on the importance of centralized enforcement mechanisms by the commissionac
there are aspects of enforcing EU law that cannot be achieved by individuals taking action in national courts (direct effect) so the commission is required to step in aswell
chalmers three functions performed by centralized enforcement by the commission
- to secure compliance with EU law
- to serve as an instrument which contributes to the effective functioning of EU policies
- to act as a public law arena in which the different interests of the EU institutions, MSm complaints and EU citizens can be mediates (an opportunity to air disagreements)
chalmers criticisms
- the compliance function cannot be central to the article for enforcement procedure as the commission has a large amount of discretion and therefore can choose when to bring a case, and why they may choose to pursue a state may vary
- the second function is narrow instrumental view of the purpose of the articlen and does not adress the complex technical and governance challanges nations attes may experience (not just about make the states do what there supposed to)
- need the third fucntion to explain what is happening in this procedure (both a political forum aswell as a technical one)
a wider view of article 258 would see it as a forum within which the politics
of European standard setting can be continued in a different form.
positive of the wide function- a political aspect that compensates for the narrow range of actors involved in the formal legislative process
that the wider range of actors involved in non-compliance
and subsequent negotiation and litigation over compliance can be seen asa partial
compensation for the narrow range of actors involved in the formal legislative
process. (
chalmers further arguments
there should be a legitimate politicization of acrticle 258 and should be put on a formal footing- supported by rawling
rules should be esatblished to ensure greater participation and accountaibility for the commission
(should not be left to the discretion of the commission)
for ensuring greater participation in decisions regarding implementation and greater accountability of the
Commission in the exercise of its enforcement role
another function served by the political and public framework would be to allow states an additional say on the expansion of EU law than in the formal legislative process
however the first 2 functions are relevant but dont entirely define the function of article 258
Crucially, although the authors thus acknowledge space for a legitimate
‘politicization’ of article 258,they argue that this should take place within, what they
term, a public legal framework.
alternative point of view
Devuysts
the legislative process as it is currently constitutted is legitimate and functioned effectively
-therefore could be argued to be a mistake to emphazise the political role of article 258
,it wouldarguably bea mistake to
emphasize the political role of Article 258 TFEUand the extent to which it serves as
a useful vehicle for increasing participation in EU law-making and therefore the
extent to which a ‘constitutional’ framework is required.
Participationis focused onconstructive involvement in dialogue over the formation of
policyfollowed by uniform implementation.
introduces 9 reasons for the effectiveness and legitimacy of the community legislative process
“ the Community produces binding secondary legislation that has precedence overnational law”- binding means is legally enforceable in all membert states and are legall oblogated to comply with . ensures EU policies and objective are implemented uniformly across the EU and ensures the effective application
positives of the centralised enforcement
-key feature- removes nation states from the process of ensuring compliance and vests this in an independent supranantional institution (removes impartiaility so more consistent
scope of article
- processings against the state agencies
- state agencies- given a wide meaning and not limited to the government but includes constitutionally independant bodies- Commission v belgium [1970]
-agency can be at any level- commission v italy [1987] - bodies that are not formally part of the state but subject to public controls- C v ireland [1982]
- can include private bodies C v Germany [2002]
-bodies performing public services even if not subject to public control vassilo 2006 - act covered- legislation and adminstrative practices
If the Commission considers that a Member State has failed to fulfil an obligation
under this Treaty, it shall deliver a reasoned opinion on the matter after giving the
State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid
down by the Commission, the latter may bring the matter before the Court of Justice
of the European Union.
Centralized enforcement may be contrasted with enforcement by member states
under article 259 TFEU
proceedings: adminstrative and judicial stages
- commissiom initiates article process with a letter to the MS government in which the commission sets out the reasons it suspects an infringement (formal proceedings rare- usually EU pilot, early settlement, both must then come to agreement)- informal
-commission issues a reasoned opinion and sufficient time to respons- Commission v france - At CJEU, CJEU will uphold commission action against a state even if damage is minimal (commission v germany 2003)
discretion of the commission
- discretion whether to bring proceedings
-chalmers- the function of the article cannot be starightforward as a policing and compliance procedure
the commission is able to take into account a variety of factors and have to be convinced that the wider public interest is served by the action
European commissions policy paper 2017- ranks infringement as serious that fall into 3 categories
1. rule of law infringements- undermine primacy or uniformity
2. that undermine the smooth functioning of the union legal system- actions in violation of an exclusive union power in thr field of commercial policy, repitition, cross boarder…
3. failure to transpose a directive or incorrect transposition
could lead to advantages to
certain social interests at the expense of others.
evidential issues
- brings a case- a prima facie case based on sufficient evidence
- burden of proof switches to MS- give evidence to challenge prima facie case (commission v ireland 2005)
- CJEU justifies its approach based on the fact that the commission does not have the mens to pursue its own investigation
- MS have a duty to co-operate in ensuring that the commission can fulfill its taks art 4(2) TEU
position of the claimant
many cases come from complaints from individuals to the commission
- CJEU- individual complaints cannot bring an action for failure to act against the commission ( star v commission 1989)
criticism of the no duty to act
lecture notes
ombudsman
as the court has rules these types of complaints inadmissible
the ombudsman has handled cases alleging that the failure of the commission to prosecute constituted to maladminstration
article 260- sanctions for findings of breach
lump sum or penalty payment
-commission v france 2005- penalty payments are intended to discourage breach whereas lump sums are intended to compensate damage caused
- supported by jack 2013- penalty paymemts and lump sums have been effective in securing complaine with EU law
or do what was not done
discussion
Borzel, Hofman and Panke 2012-domestic assessments of the legitimacy of Eu law are not linked to rates of compliance
(when states dont comply with EU law its not because they dont think its illlegitimate)
- conclusion- states havent got the capacity to comply with EU law, most effective stragey is to increase the capacity of states to impose its will on domestic society (done through transfer of financial resources of managerial know how)
- reinforced chalmers view that this is a political process that is design to solved problems relating to the application of EU law rather than a staright forward process of ensuring compliance
uniformity and effectiveness
for -
-centralized enforcement of EU law by the commission, established article 258 TFEU
-reflected in commission v Belgium 1970
- chalmers et al 3 functions “to secure compliance with EU law” “contributes to the effective functioning of EU policies” “to act as a public law arena in which different interest kf the EU… can be mediated”
-article 260- remedies
-lump sums and penalty payements
-commission v france 2005- explains that penalty payments are intended to discourage breach, lump sum paymenets intended to compensate
-jack 2013 “a coercive measure, which placed Member States under economic pressure to comply quickly with court judgements”- only penalty payments
-reflected in commission v greece 2000- greece ordered to pay 20,000 euros a day until complied with judgement establishing its infringement
against-
- discretion- article 258 para 2 “the latter may bring the matter before the court of justice of the european union”
- supported by chalmer et al- the function of article 258 cannot be classified as straightforward as “policing compliance with EU law”
-the European commission’s policy paper 2017 suggestst that the commission decides on questions of priority
-craig and burca “there is a risk that the commission may use its discretion in a way that excessively lenient, or arbitrarily selective with defaulting Member States”
-“there may be political and other reasons leading to exercise its discretion” craig and burca
- in commission v United Kingdom 1988- the UK argued that there was political motive behind the commission, however the court declared it was not for them to consider the objective of action
