Arr 258-260

Question 0

What kind of breach?

Answer 0

Commission v France (re blockades): MS can be liable for omissions

Question 1

Who is the state?

Answer 1

Commission v Belgium (Re timber wax): can include a “constitutionally independent institution” such as a local government

National courts? No authority on this

Question 2

Wide discretion of the commission

Answer 2

Whether to investigate, Commission v France (re Euratom)

At the administrative stage

• Lutticke v Commission: commission not liable for failure to act at this stage
• Commission v Netherlands : commissions’ excessive delay can however make them liable
• Commision v France
• Commission v Ireland

Question 3

Art 258 - Administrative stage

Answer 3

1) Informal notification from Commmission
2) Formal notice from commission

3) Reasoned opinion
- details of breach AND reasons, Commission v Italy (Re ban on pork imports)
- must specific the claim precisely, Com v Netherlands
- give a response to the reply of the MS
- details on how to remedy the breach and time limits

4) MS accepts and complies, or continues to fail to comply
- Commission v Ireland : MS have a duty to cooperate in good faith

Question 4

Art 258 - Judicial stage

Answer 4

1) case put before CJEU
- court will consider the case de novon and decide for itself whether the MS has committed a breach
- commission is not allowed to add more grounds, Commission v Netherlands
- court doesn’t take into account events after the reasoned opinion, Commission v France

2) MS defence
3) CJEU decision

Question 5

MS Defences

Answer 5

Practical arguments ?
- Commission v France Re French merchant seamen

Unforeeeable circumstances (force majeure) y

• two points : (1) the events need to be reasonably predictable, (2) the events need to be of a certain gravity
• commission v France (Re blockades)

Unintentional violation x
- Commmision v Italy (Re ban on pork imports) : an unintentional breach is not a defence

Alleged illegality of EU law x
- Commission v Greece : the fact that the EU law turned out to be illegal was not a defence

Question 6

Art 259

Answer 6

1. Commission Stage
   - complaint by complainant MS
   - right if reply by infringer MS
   - reasoned opinion from Commission?
   Spain v UK - in this case, Comm refused to give an opinion
   Comm v France - comm may wish to initiate its own action under 258 in response
2. Judicial Stage

Question 7

Art 260

Answer 7

Member states must take all necessary measures to comply with a judgement of the CJEU
Procureur de la Republique v Waterkeyn : a CJEU judgment is binding directly on all national courts