Enforcement Proceedings

• Article 258 TFEU

  • ‘If the Commission considers that a Member State has failed to fulfill an obligation under the Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned an 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.’

• Commission therefore the ‘guardian of the treaties.’

• The procedure is an objective test of whether a MS has violated an obligation.

  • Commission v UK [1988] – “it is not for the Court to consider what objectives are pursued in an action”

    • It is not for the courts to decide why: their only job is to establish whether a violation has occurred.

    • Motives, timing etc. are irrelevant

• The Scope of Art. 258

  • Personal scope: ‘…a Member State…’

    • Unlimited, referring to all authorities of the state (legislature, executive, judiciary etc.)

    • Commission v Belgium (re: timber tax) [1970] – B had not introduced timber tax contrary to EU reg. Defense was that the executive had introduced the legislation, Parliament had failed to vote on it.

      • Held constitutional independence was irrelevant. Still liable.

  • Omission v Commission

    • Commission v France (re: blockades) [1997] - French authorities had failed to intervene and prevent blockades being erected on the Franco-Spanish boarder. Actions of the National Courts held to be laible.

  • Commission v Italy [2003] – A piece of legislation that was unclear: some courts held it was consistent with EU law, others held it was inconsistent.

    • CJEU held it was the fault of the legislature for introducing unclear legislation. (CJEU is to avoid bringing in the domestic courts as had political repercussions)

  • R. v Bouchereau [1977], the Opinion of AG Warner.

    • In order for the commission to bring an action against the Member State for the action of a domestic court it has to be for a sufficiently serious violation.

• Administrative stage (everything before court appearance)

  • Commission is informed about violations through the citizens and their own monitoring.

  • 1) Informal Inquiries via State’s Permanent Rep in the EU.

    • Commission v Ireland [2005] – MS’s are required to comply with enquiries (Art.4(3) TEU – reasonable steps for enforcement)

    • No time limitations on this period, until the time becomes excessive

      • Commission v Netherlands [1991] – excessive length is capable of making it more difficult for the Member State concerned to refute the Commission's arguments and of thus infringing the rights of the defence.

  • 2) A Reasoned Opinion: identifies violation; view of EU commission; opportunity for MS to rectify violation before going to CJEU.

    • Commission v Netherlands [2004] – the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion

    • No formal requirements, except a ‘coherent statement’ explaining violation (Commission v Italy (re: ban on pork imports) [1961])

    • This is entirely non-binding, so cannot be challenged (Lütticke v Commission [1966])

• The Judicial Stage:

  • The Commission enjoys discretion as to why they should bring an action:

    • Commission v France (re: Euratom) [1971] - this procedure involves a power on the part of the Commission to consider the most appropriate means and time-limits.

      • One way of doing this is an action before the CJEU, but this is not the only way of doing so.

  • Commission enjoys discretion as to when to bring an action: Commission v Italy [1968]

  • Enjoys complete (but reasonable) discretion as to the time limit to remedy the violation

    • Commission v Ireland [1984]: unreasonable to allow MS 5 days to remedy legislation that has been in place for 40 years.

• Defenses by MSs (these rarely succeed)

  • Practical Arguments

    • E.g. Commission v France (re: French merchant seamen) [1974]

    • Legislation requiring that a big number of people employed on French Merchant Ships are French Nationals. Commission argued this was discrimination. France argued in practice they don’t practically apply this legislation. Held this didn’t matter.

  • Internal Difficulties

    • E.g. Commission v France (re: blockades) [1997] France tried to argue that there would have been internal difficulties, and chaos if it had tried to break down these barricades. Court held that this practical difficulty was irrelevant.

  • Unintentional Violation

    • Held as irrelevant due to objective nature of the procedure.

    • Commission v Italy [2004]

  • Allege the Illegality of the EU Law that is Violated..

    • This argument is dismissed: if the state has a problem there is a separate procedure under which they may challenge the legality.

    • The alleged illegality is not an excuse for violation.

    • Commission v Greece [1988]

• The Role of Individuals

  • Individuals may complain to the Commission, making them interested in the outcome.

  • But they cannot challenge the procedure as they do not have a direct legal interest (Star Fruit v Commission [1989])

  • EU ought tell individuals how their complaint is dealt with (Legal Ombudsman advice, non binding)

• State v State Actions Under Art 259

  • Largely similar to Art. 258:

    • MS must bring matter to commission.

    • Commission delivers a reasoned opinion.

    • Failing an opinion in three months, state brings matter to the court.

  • In practice very small number of State v State action.

    • States need to work together – there are wide ranging political and diplomatic consequences for bringing such an action.

    • Spain v UK [2006]

• Practical Implications of a Court’s Ruling

  • Article 260(1): the State shall be required to take the necessary measures to comply with the judgment of the Court.’

  • The only purpose of A. 258 judgement is to ascertain whether there has been a violation – no duty to suggest how the violation be remedied.

    • Procureur de la Republique v Waterkeyn [1982]: the courts of that State are bound by virtue of [Art. 258] to draw the necessary inferences from the judgment...

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