3 - Infringement Procedures: The ECJ and the MS

Question 1

What is this lecture about?

Answer 1

Centralised enforcement of EU law against the EU MS

Question 2

Which EU legal bases are relevant for centralised enforcement? (5)

Answer 2

1/ leading role of Art. 258 TFEU (Commission infringement actions)

2/ other procedure is Art. 259 TFEU (enforcement action by MS)

3/ last resort is Art. 260 TFEU (financial penalty procedure)

4/ however, limitation of ECJ jurisdiction (Arts. 275, 276 TFEU)

5/ other procedures are Arts. 108 and 269 TFEU

Question 3

What is the nature of the actions we explore in this lecture on centralised enforcement of EU law?

Answer 3

Direct actions

Question 4

What legal instruments are important regarding the rule of law and effective judicial protection? (3)

Answer 4

1/ Arts. 2, 7 and 19(1) TEU

2/ gnl pcple of effective judicial protection

3/ Art. 47 CFR

Question 5

What is the rationale underlying rule of law and effective judicial protection?

Answer 5

Where there is a right, there must be a remedy, otherwise rights are not effective

Question 6

How does the EU operate? (3)

Answer 6

1/ hybrid system

2/ intergovernmentalism

3/ supranationalism

Question 7

Who executes most of EU law?

Answer 7

MS, approx. 90%

Question 8

What is necessary to protect EU rights and freedoms? (3)

Answer 8

1/ compliance mechanisms

2/ therefore, EU rule of law provides judicial review of alleged infringements of EU rights and freedoms

3/ therefore, EU rule of law guarantees effective remedies for established infringements through gnl pcples of primacy and effective judicial protection

Question 9

Who are the ‘watchdogs’ of EU law infringements? (4)

Answer 9

1/ Commission (Art. 17 TEU, Art. 258 TFEU)

2/ MS (Art. 259 TFEU)

3/ EU citizens as incidental and indirect enforcers (VGL, PR procedure)

4/ national courts (EU courts with an independence obligation so as to give effect to EU rights and obligations)

Question 10

What are the judicial protection doctrines (i.e. interpretative techniques) for obtaining remedies in national courts concerning conflicts btwn EU law and national laws? (4)

Answer 10

1/ direct effect (VGL)

2/ consistent interpretation, indirect effect (Marleasing, Faccini Dori)

3/ MS liability (Francovich, Brasserie, Köbler)

4/ systemised in Dominguez (2012)

Question 11

Nature of Art. 258 TFEU action for infringement? (5)

Answer 11

1/ 2-stage procedure: administrative and, if necessary, judicial

2/ action for failure to fulfil an obligation

3/ MS must take measures necessary to comply with EU law

4/ direct enforcement as Commission initiates

5/ room for dialogue and diplomacy at the administrative stage

Question 12

How many % of Art. 258 cases settle before reaching judicial stage?

Answer 12

More than 95%

Question 13

What is the nature of judgments under Art. 258? (6)

Answer 13

1/ declaratory nature

2/ focused on objectivity (no guilt or fault factor)

3/ possible penalties can follow based on MS behavior (periodic penalty and/or lump sum)

4/ ECJ cannot repeal national laws infringing EU law

5/ individual rights cannot arise from Art. 258 judgments bc they concern obligations of MS

6/ however, ind. harmed by MS infringement can pursue a State liability claim for damages in MS court

Question 14

Main contribution of Thelen Tecnopark case (2022)? (2)

Answer 14

1/ individuals harmed by the MS’s infringement may pursue a State liability claim for damages in MS court

2/ see paras. 40-45

Question 15

Which acts can trigger Art. 258? (7)

Answer 15

1/ any infringement by the legislature, executive or judiciary of the MS

2/ incorrect or incomplete implementation/enforcement of EU legal measures (e.g. Personal Data)

3/ int. acts of MS (e.g. Mox Plant)

4/ actions of a supreme court (e.g. Accor II)

5/ non-legal acts (factual infringements)

6/ private actions under State control (e.g. Buy Irish)

7/ private actions not under State control (e.g. Spanish Strawberries)

Question 16

What are possible MS defences under Art. 258? (7)

Answer 16

1/ substantial potential damages to comply? (e.g. Open Skies)

2/ pcple of sincere cooperation? (e.g. Open Skies)

3/ exclusive competence for maintenance public order and safeguarding internal security? (e.g. Spanish Strawberries)

4/ binding int. agreements? (e.g. Mox Plant, Open Skies)

5/ financial and physical inability to comply? (e.g. Greek Waste Landfill Sites)

6/ equal treatment? (e.g. Open Skies, Milk Products, rejection of reciprocity doctrine)

7/ national law does not permit it? (e.g. Commission v Poland)

Question 17

What was rejected in the Milk Products case? (2)

Answer 17

1/ reciprocity doctrine

2/ failure to fulfil obligations by other party does not excuse non-compliance

Question 18

What was Poland’s primary defence in Commission v Poland and how did ECJ respond? (4)

Answer 18

1/ Poland: national laws currently make it impossible to comply with interim ruling

2/ ECJ: MS cannot plead provisions, practice or situations prevailing in its domestic legal order to justify infringement of EU law

3/ ECJ: obligation of MS to comply with EU law is binding on all their authorities, incl. courts

4/ regardless of national rules, real question is whether Poland has actually complied with order of interim ruling

Question 19

What is the purpose of the administrative stage of Art. 258? (3)

Answer 19

1/ aim is to seek an agreement

2/ thus, not much transparency

3/ discretion Commission is almost unlimited (i.e. whether it takes action, when, what it considers a priority)

Question 20

What is the procedure of the administrative stage of Art. 258 action? (3)

Answer 20

1/ key document is letter of formal notice

2/ MS must have reasonable responding time

3/ if no action of MS or observations are not responsive, then reasoned opinion of the Commission

Question 21

Characteristics of reasoned opinion? (2)

Answer 21

1/ elaborates letter of formal notice

2/ but may NOT broaden scope of letter of formal notice

Question 22

Characteristics of Art. 258 judicial stage? (4)

Answer 22

1/ starts when Commission files application to ECJ

2/ happens whenever Commission wants but after expiry of deadline in reasoned opinion without compliance by MS

3/ much less flexible than administrative stage

4/ ground rule: dispute can become smaller but not broader in timeline btwn letter, opinion and application to ECJ

Question 23

What if MS complies with reasoned opinion after application is filed with ECJ? (2)

Answer 23

1/ application still admissible

2/ date set in reasonable opinion is infringement date

Question 24

Initial considerations on Art. 259 procedure? (3)

Answer 24

1/ ECJ is only court competent in MS disputes over EU law (e.g. Mox Plant)

2/ Art. 259 actions are very rare

3/ most often, MS complain to Commission which then pushes for constructive bilateral dialogue

Question 25

Examples of Art. 259 actions? (2)

Answer 25

1/ Hungary v Slovakia (2012), denied entry of Hungarian President

2/ Czech Republic v Poland (2021), cross-border effects of Polish mining activities

Question 26

General considerations on Art. 260? (6)

Answer 26

1/ purpose is financial pressure for compliance with judgements under Arts. 258/259

2/ 2nd procedure that follows the initial infringement procedure

3/ almost a copy of Art. 258 but no reasoned opinion required

4/ Commission can ‘sue’ MS for lump sum payment and/or periodic penalty payment

5/ ECJ has full discretion to decide which penalty to impose, the amount, when to impose

6/ periodic payments can be used in combination with interim measures of Art. 279 (e.g. Commission v Poland; Czech Republic v Poland)

Question 27

How are lump sums and penalty payments calculated? (4)

Answer 27

1/ see 2005 Commission Communication (amended in 2010)

2/ goal: proportionate yet dissuasive sanctions

3/ underlying rationale of Communication: pcple of equal treatment, consistency, transparency

4/ factors considered: duration, seriousness, ability to pay

Question 28

What amendments did Lisbon introduce to Art. 260? (3)

Answer 28

1/ no more need for reasoned opinion

2/ Art. 260(3): penalties can be combined with infringement application

3/ objective of Art. 260(3) is to give stronger incentive to MS to transpose Directives within deadlines => ensure their effective application

Question 29

What does Art. 260(3) apply to? And to what does it not apply? (2)

Answer 29

1/ applies to partial notifications of transposition (incomplete) (e.g. Belgium High-Speed Networks)

2/ does not apply to incorrect implementation

Question 30

What are limitations of ECJ jurisdiction for direct actions? (3)

Answer 30

1/ AFSJ: law enforcement + national security operations excluded (Arts. 72, 276 TFEU)

2/ CFSP: no jurisdiction, except for some issues of legality of EU law itself (Arts. 40 and 275(2) TFEU)

3/ excessive deficit procedure in Art. 126(1) TFEU: no jurisdiction over application of most of the procedure

Question 31

Considerations on the special case of State aid per Art. 108 TFEU? (4)

Answer 31

1/ swift (‘fast-track’) procedure

2/ EC hears all parties concerned

3/ EC can take binding decision to end State aid and recover sums already paid

4/ if no or insufficient action from MS, direct application to ECJ (no pre-litigation phase)

Question 32

Considerations on the special case of Art. 269 TFEU? (4)

Answer 32

1/ Art. 7 TEU is exceptional provision as substantive legal review is done by European Council (political rather than judicial forum)

2/ ultimately, suspension of EU membership is possible

3/ ECJ jurisdiction limited to procedural challenges pertaining to Article 7 TEU

4/ recent example: Hungary v EP (2021)