#17339 - Enforcement Proceedings - GDL EU Law

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 of the Court.

• Until Maastricht an a.258 judgement had no substantive bite.

• Art. 260(2) TFEU

  • If Commission considers MS not to have implemented sufficient measures, may bring before court.

  • It shall specify the amount of the lump sum or penalty payment to be paid by the Member State

  • NB Court does not have the power to make states pay every time the break EU law.

• Determining Lump Sums

  • Commission Communication SEC (2005) – a non-binding policy document. The calculation should be based on three fundamental criteria:

    • the seriousness of the infringement,

    • its duration,

    • the need to ensure that the penalty itself is a deterrent to further infringements.

  • Commission v Portugal [2014] – Court of justice has exclusive jurisdiction

  • Commission v Portugal [2008] – CJ changed the commissions calculations.

  • Commission v Greece (re: toxic waste) [2000] -

    • Environmental legislation to do with toxic waste which Greece had failed to implement.

    • Directive from 70s, Required to implement by 1981, in 1991 CJ delivered a Art. 281 judgement. In 2000 CJ handed down an Art. 260 judgement.

    • This works on a very large timescale.Greece was fined over 4million.

  • Commission v France (re: fisheries) [2005] Here CJ decided to impose both a lump sum and a penalty payment of <40million for each 6months non-compliance and lump sum of 15million.

  • NB No instance so far where a member state has refused to pay.

    • This was a worry when the legislation was first introduced.

Expanded at Lisbon with addition of Art 260 (3):

• Allows commission to it specify the amount of the lump sum or penalty payment, and confers court explicit power to impose such a fine not exceeding the amount specified by the Commission.

Para 1: Scope

• “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

  • (a) the interpretation of the Treaties;

  • (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union”

• Simmenthal [1976]

  • The ECJ exists to rule on disputes – to point out what is the law, on behalf of domestic courts. It is not the job of the ECJ to apply the law to the facts of the case.

  • This is not always the case, e.g. ex p BT where court applies facts to determine if there has been a breach.

• Relevant Questions:

  • Drodzi v Belgium [1990] – does not preclude a PR if it is an MS law that is in question.

  • Leur-Bloom [1997]: a reference may only be where national legislation is aimed at the same purpose of EU law

• Limits of Scope

  • Art 275 TFEU no jurisdiction over Common Foreign and Security Policy.

  • Art 276 TFEU no jurisdiction over acts of police/security force

Para 2: Standing

• Any court or tribunal of a Member State may request Court give a ruling.

  • Any question raised in a court against whom there is no judicial remedy shall bring the matter before the court.

  • If a person is in custody, EU shall act with minimum of delay.

• Garofalo [1997] – to be recognised as a ‘court or tribunal’ the body concerned should be established by law; permanent; its jurisdiction should be compulsory; its procedure should be inter-party; it should apply the rule of law; and it should be independent.

• Broekmeulen [1981] About a body that authorised doctors in the Netherlands to practice as GPs. EU felt that it did act like a court – it made binding decisions, etc.

• Pretore di Salo [1987] Investigative judge in Italy (combined roles of investigator and judge). Court accepted the reference.

• Nordsee [1982] Reference by an arbitrator, whose application was based...