European Court Of Justice- Article 258 Tfeu

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Article 258 TFEU Infringement procedure

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If a state fails to fuilfil obligation under the treaties, Commission shall deliver a reasoned opinion... If they do not comply, the Commission may bring it before the EUCJ.

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Sources of info

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No investigation service.

Press/EP questions/direct correspondence

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Citizen complaints

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Significant source

Contributes to more participatory community.

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Private redress?

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No. 'Objective' mechanism for ensuring state compliance. Citizens can bring the action, but up to the Commission whether to actually initiate proceedings.

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Transparency

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EU pilot scheme in 2007 for improved info exchange regarding ease of complainants. (criticisms that too much power in national hands)

Petrie, General Court established that infringement documents are not for individuals to see.

Bavarian Lager II, General Court ruled that disclosure of documents couldn't jeopardise investigations. Overturned, but again later in Sweden and API v Commission affirmed the movement towards greater disclosure.

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Public/Private

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Molkerei-Zentrale.

Proceedings by an individual=to vindicate rights

Commission enforcement proceedings= To ensure observance of EU law

'Parallel may not be drawn between them'.

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Discretion

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Criticised; can be arbitrarily selective or lenient, insufficient procedural restraints. May be political reasons due to its other roles. Wording makes reasoned opinion mandatory, but not in practice. Motives are not examined as it's 'objective'. Commission v United Kingdom

Commission v Netherlands, there can be an excessive time taken to bring proceedings.

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Discretion II

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Commission v Ireland. Reprimanded for short amount of time after reasonable opinion. But had gotten a reply so was OK. Short time periods are ok if it's an urgent matter/the nation knew about the commission's opinions for a long time.

Star Fruit. Can't admit action for 'failure to act'.

mechanisms strengthened, accountability increased and discretion lowered from pressure from the Ombudsman and European Parliament.

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Reasoned Opinion

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States period of time in which it's to be rectified, establishes exactly what the problem is.

Lacks binding effect, not grounds for annulment re content. But not having one is grounds for annulment.

Commission v Italy. 'Coherent statement of reasons' make it legally sufficient.

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Reasoned Opinion II

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Can't amend it before the court, even if both parties want to. Commission v Italy. But can go into more detail. Commission v Poland.

Can re-submit the application, don't have to start the whole process. Commission v Italy.

Change is accepted only when it limits what is asked of the MS rather than expanding. Commission v Germany. May expand to things which happened after the RO, once they are of the same type. Commission v France.

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Confidentiality of reasoned opinions

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Initially, confidentiality valued highly. WWF, Petrie.

Furthered by Article 4(2), protection for purpose of investigations...

Then dampened somewhat recently, Bavarian Lager II, Sweden/API. Occasionally publishes them.

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Breach of Obligation of Sincere Cooperation under Article 4(3) TEU

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If penalising for lack of information, can't presume this means non compliance. Commission v Netherlands, bathing case.

But member states have obligation under article 4(3) to facilitate achievement of commission tasks. So can bring enforcement proceedings for lack of co-operation.

Other positive obligations can be enforced with this too.

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Inadequate implementation of EU law

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Commission v France 1974.

State's freedom to decided matter of implementation doesn't release from obligation to do so adequately.

If current constitutional/administrative law means a directive can be implemented without legislation, it does not need to be legislated for. Commission v Germany 1985.

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Breaches which interfere with EU external relations

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Open Skies cases, bilateral agreements with US by states which infringed EU external competence.

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Systematic and Persistent Breaches

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Case v Ireland in 2005. Systematically breaking waste disposal laws, 12 different cases. But a 13th case for the persistent and general nature of the failures.

Burden of proof discharged onto the MS once sufficient evidence shows a persistent breach.

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Action by Courts

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Has never brought proceedings for this as they're often politically separate from the democratic bodies, so it's politically dangerous to do.

2004 the Commission brought a reasonable opinion to Sweden about their Supreme Court, but never proceeded to judgement.

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Defences

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Nothing to prohibit bringing defences which weren't raised pre-litigation.Commission v Spain 1999

Absence of harm is not a defence. Commission v Portugal 1999

Force Majeure has been succesful. Commission v Italy 1970

Fraudulent individual, or independent institution. May not justify conditions in its legal system to justify a breach Commission v Italy 1984

Doesn't matter if minor, not deliberate, not at fault. If infringement was illegal, they take proceedings regardless of lack of moral wrongdoing.

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Defences II

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Reciprocity not a factor, doesn't depend on compliance by other states. Commission v Luxembourg 2005.

Cannot plead illegality of the directive, as they had other means to challenge it which they did not use.Commission v Greece 1988ssnless it is so illegal as to be void ab initio, or it was not just directed to them and illegality was not immediately apparent.

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Consequences-Article 259

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Any MS may bring action v any other MS.

Can be brought to the CJEU even if commission considers there to be no breach.

Used rarely, but has been used.

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Consequences-Article 260

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Percuniary penalty. Introduced by Maastricht, stricter, penalties of payment.