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Enforcement Proceedings Notes

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This is an extract of our Enforcement Proceedings document, which we sell as part of our GDL EU Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.

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Article 258 TFEU
o '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.'
o '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.
o 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.
o 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.
o 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)
o 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)
o Commission is informed about violations through the citizens and their own monitoring.
o 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.
o 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:
o 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.
o Commission enjoys discretion as to when to bring an action:
Commission v Italy [1968]
o 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)
o 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.
o Internal Difficulties
 E.g. Commission v France (re: blockades) [1997]
France tried to argue that there would have been

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