Enforcement against Member States

Enforcement against Member States

Outline Types of Enforcement Public Enforcement Article 258 TFEU Stages of the enforcement procedure Types of Infringement State Defences Sanctions Lund University 2

Types of Enforcement Centralized (Public Enforcement): Commission, sometimes brought by MSs, Articles 258-260 TFEU Decentralized (Private): National Courts, Private Litigants, Article 267 TFEU Lund University

Different faces of Public Enforcement Elite channel of amicable dispute resolution A channel for individuals to complain to the Commission Objective law enforcement in the hands of the Commission and the ECJ Forum for accountability of the different institutional actors Lund University 4

Public Enforcement - Article 258TFEU Article 17 (1) TEU Commission ensures, oversees and monitors MSs compliance with EU law + Responds to non compliance Article 258 TFEU Lund University 5

Article 258 If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, 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. Lund University

Article 259 A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union. Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission. Lund University

Continuation of Article 259 TFEU The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court. Lund University

Public Enforcement - Article 258TFEU The basis to start the proceeding: a) The Commission s own initiative b) Complaints from natural and legal persons c) Complaints from MSs (Article 259 TFEU) Lund University 9

Stages of the Procedure 1. Administrative Stage: Informal Stage Pre-contentious stage: opportunity to reach an accommodation with the Commission Formal Stage Letter of Formal Notice: the MS is formally notified of the specific infringement alleged Formal Stage Reasoned Opinion: Sets the time within which the MS must comply with EU Law 2. Judicial Stage Referral of the case to the ECJ Lund University 10

EU Pilot & Public Enforcement Commission opens the file in electronic database The email is sent to the National Contact Points of EU Pilot Programme Member States have 10 weeks to rectify the breach The Commission has 10 weeks to react Lund University 11

Administrative Stage I the Letter of Formal Notice I. The letter of formal notice determines the rest of the procedure About 84% of cases based on individual complaints are closed at this stage Lund University 12

Administrative Stage II the Reasoned Opinion II. The reasoned opinion About 94% of cases based on individual complaints close at this stage before they get to the Court In average, it takes 24 months from opening the file to submitting the action to the ECJ Lund University 13

Form and Content of a Reasoned Opinion Purpose - To define the subject-matter of the dispute - To prescribe a time limit within which a MS must put an end to the infringement Content: - Coherent and detailed statement of the reasons which lead the Commission to believe that the MS in question has failed to fulfill its obligations under the Treaty N.B The content of the reasoned opinion must be essentially the same as (although not necessary identical to) the submissions contained in the Commission s application to the Court. Lund University 14

Judicial Stage Action for infringement before the Court formally lodged by the Legal Service of the Commission If a case is dismissed, it is often procedural grounds so on Even after a case is submitted to the Court, the Commission can still withdraw it (negotiations continue) Lund University 15

Types of Infringement The state has failed to fulfill the obligation under the treaty: including actions or omissions. Types of Infringement Breach of Sincere Cooperation Inadequate implementation of EULaw Breach related to Ext. Rel-s Actions by the Courts Lund University 16

Breach of the Obligation of Sincere Cooperation? Case 96/81 Commission v Netherlands Facts: the Netherlands failed to supply the information on the implementation of a directive, the Commission on the basis of non-notification presumed that the MS failed to implement the directive Issue: not the duty to comply with the obligation to provide information, but rather to fulfill the obligation to implement the directive. The ECJ: a MS has an obligation under 4 (3) to facilitate the achievement of the Commission's tasks, including that of monitoring compliance of the treaty. However in this case the Commission cannot simply rely on the presumption, where a MS fails to provide information on compliance. N.B The Court will not go on to establish a separate breach of the obligation of sincere cooperation where it has already established a violation of more specific provisions. Lund University 17

Inadequate Implementation of EU Law Case 167/73 Commission v France Facts: French legislature has failed to repeal a provisions of the national law, which required a certain proportion of the crew of a ship to be of French nationality. Issues: The French government argued that oral directions had been given to naval authorities to treat EU nationals as French nationals and this was sufficient to ensure the compliance with EU Law The ECJ: the uncertainty created by the maintenance of the wording of Article 3 of the Maritime Code, the French Republic has failed to fulfil its EU law obligation. N.B. Even though that states enjoy the discretion regarding the means and forms of implementation of directive, this does not mean that MS is released from the obligation to give effect to the provisions of the directive by means of national provisions of a binding nature, mere administrative practices are not enough. Lund University 18

Breach Related to External Relations Case C-249/06 Commission v Sweden (Similar Case C-205/06 Commission v Austria) Facts: Bilateral investment treaties concluded with non-eu member States prior to the accession to the EU. Each of those agreements contains a clause under which each party guarantees to the investors of the other party, without undue delay, the free transfer, in freely convertible currency, of payments connected with an investment. Those bilateral agreements were capable of impeding the application of restrictions on movements of capital and on payments which the Council of the European Union could adopt. Issues: breach of Article 351 TFEU, namely Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established (para 2) The ECJ : The MS has failed to fulfill its obligations under the second paragraph of Article 307 EC. (now Article 351TFEU) Lund University 19

Actions of the Courts of MSs Can the action by a national court be subject of an infringement procedure? Case C-224/01 Köbler In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance (para 33). Lund University 20

Commission's Discretion The Commission has discretion: To issue or not a Reasoned Opinion To bring or not the case before the Court The court has repeatedly made clear that proceedings are entirely objective so that it will examine only whether the infringement alleged by the Commission exists. (See: Case 416/85 CommissionvUK) Lund University 21

Commission s Discretion & State Defence Case C-523/04 Commission v Netherlands Facts: the Commission brought proceedings for failure to fulfil obligations against eight other Member States and then the Netherlands which had concluded air transport agreements with the United States. Issue: The Netherlands argued that a period of a more than five years for bringing infringement proceedings, from the time the first letter was sent, was excessive The ECJ : It is true that, in some circumstances, excessive duration of the pre- litigation procedure provided for by Article 226 EC is capable of making it more difficult for the Member State in question to refute the Commission s arguments and thus of infringing the rights of the defence. In this case, however, the Netherlands Government has not proved that the unusual duration of the procedure has had any effect on the manner in which it has organised its defence.( para 27) Lund University 22

Commission s Discretion & State Defence Restrictions have also been imposed on the Commission s discretion regarding when to refer a matter to the Court after the reasoned Opinion is issued. However, shorter time limits to reply to the formal letter of notice or reasoned opinion will not be a good defence for a MS in case of urgency. Lund University 23

Is Enforcement Action Admissible after the Breach is Remedied Yes, butwhy? To prevent re-commencing some conducts after procedure is closed To rule on the legality of breaches of short duration In order to establish the liability on the part of a defaulting MS it is important but not necessary though in actions of seeking the damages from a State Lund University 24

State Defence in Enforcement Proceedings Types of State Defence Force Majeure Lack of Intentional Wrongdoing The EU Measure is Illegal Other Member States are also in Breach Lund University 25

Consequences of finding a Breach of EU Law Is Article 258 weak? Is Article 260 TFEU of any help? Lund University 26

Article 260 1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. 2. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. Lund University

Continuation of Art 260 TFEU If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. This procedure shall be without prejudice to Article 259. 3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. Lund University

Continuation of Art 260 TFEU If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment. Lund University

Penalty Payment + Lump Sum Case C-304/02 Commission v France N.B Court ruled that imposition of the periodic penalties is suited in cases to induce a MS to put an end as soon as possible to a breach of obligation. Imposition of lump sump is based on the assessment of the effects on public and private interests of the failure of the MS to comply with its obligation, in particular where the breach has persisted for a long period since the judgment. Lund University 30

The Enforcement Procedure and Individuals The enforcement procedure is not intended to provide individuals with a means of redress, but rather is an objective mechanism for ensuring state compliance with EU Law Then what could be the interest of individuals in enforcement procedure? Lund University 31

Individuals Access to File Generally individuals are not allowed to access the file, however the pressure from the Ombudsman found the way: Case Sweden and API v Commission: The general presumption that the disclosure would undermine the protection of the proceeding while remained pending could be overturned by the presentation of evidence that a particular document is not covered by the presumption. The documents are not covered by the exception for the protection after the Court has delivered its judgment. Lund University 32

Questions? Lund University 33