INFRINGEMENT PROCEDURES

Question 1

COURT PROCEDURES

Answer 1

• infringement procedures art 258-260 TFEU (commission Sues MS for breach of EU law
• preliminary ruining procedure art 267 TFEU (references from national courts asking for interpretation of EU law)

Question 2

AIMS

Answer 2

• to make sure MS comply with EU obligations
• these procedures are seen as revolutionary from view point of international public law when created
• jurisdiction belongs to court of justice

Question 3

TYPES OF INFRINGEMENT PROCEDURES

Answer 3

• art 258 TFEU commission v MS for breach of EU law if the MS state does not comply with with judgement from court within a reasonable time then commission can trigger art 260 TFEU for non-compliance with art 258 TFEU judgement can impose financial penalties on MS
• art 259 TFEU MS v MS for breach of EU law this procedure is hardly ever used

Question 4

ART 258 BREACH

Answer 4

• action can be submitted by commission against MS
• breach can be attributable to state authorities such as:
• national parliament (legislature eg commission v Uk c-246/89)
• executive eg police authorities for failure to act (c-265/95 commission v France)
• national courts (c-154/08 commission v Spain)
• devolved authorities (c-63/02 commission v uk)

Question 5

ART 258 BREACH II

Answer 5

• treaty states the commission may trigger 258 if MS failed to fulfil obligation under treaty
• this term tested broadly
• example of failures:
• adoption of legislation that is contrary to the TEU or TFEU (178/84 commission v Germany)
• failure to transpose a directive/partial/late transposition (c-144/99 commission v the Netherlands)
• conclusion of an international treaty where EU has competence to conclude (c-466/98 commission v UK)
• non-application of EU law in a given case (c-441/17 commission v Poland)

Question 6

DEFENCES

Answer 6

• limited defences
• reciprocity/other member states are also in breach (c-146/89 commission v uk 52/75 commission v Italy) court doesn’t like this defence
• force majeure something beyond control of state (c-101/84 commission v Italy) may work
• domestic difficulties such as parliament in recess (c-39/72 commission v Italy) not accepted by court of justice
• compliance with EU law in practice despite lack of legislation such as giving effect to a directive (c-102/79 commission v Belgium) won’t work
• no breach of EU law (c-475/01 commission v Hellenic Republic) this one may work
• breach of procedure by the E-commission such as defence rights being affected (c-287/03 commission v Belgium) can potentially work

Question 7

ADMINISTRATIVE PHASE

Answer 7

• 2 phases for both 258 and 260
• administrative and judicial
• administrative procedure is performed by an exchange of notes between commission and MS (trying to persuade MS to comply)
• no deadlines laid down in the articles so commission decides whether to proceed
• procedural documents are letters of formal notice and reasoned opinion (only for 258)
• if commission not satisfied with replies of MS it can proceed with an action to the court of justice
• can also request interim measures eg commission can ask court to issue an order MS to cease application or entry into force of the legislation

Question 8

JUDICIAL PHASE

Answer 8

• art 258 TFEU: judgements of the court are declaratory but MS are obligated to comply
• 258: exception court may impose financial penalty when a MS fails to notify provisions transposing a legislative directive (c-543/17 commission v belgium)
• art 260: court may impose financial penalty for any breach of EU law
• 258/260 court can also dismiss a case when action submitted by commission is unfounded
• art 258/260 Commission may withdraw anytime

Question 9

PENALTIES

Answer 9

• art 260
• commission can suggest financial penalty but request not binding for court who can increase/reduce or not impose it
• c-304/02 commission v France court decided that a lump sum and periodical payment can be imposed in same case (two penalties in one even 260 says or)
• penalties calculated by commission and then by court on basis of guidelines which are regularly updated
• penalty must be proportionate and appropriate to breach and ability to pay
• special formulae developed see slides for it and examples