Consequences of breach of EU law by a member state

Question 1

In what aspects may the consequences of breach of EU law be discussed?

Answer 1

From the perspective of the EU and from the perspective of an individual.

Question 2

What kind of procedure is provided in article 7 of the Treaty on the European Union?

Answer 2

A three-stage procedure.

Question 3

On what value is the Union founded?

Answer 3

On the values of respect of human dignity, freedom, democracy, equality, the rule of law and respect for human rights including the right of persons belonging to minorities.

Question 4

Against which member state is the three-stage procedure pending at the present moment?

Answer 4

Poland.

Question 5

Why is the Commission called the guardian of treaties?

Answer 5

Because according to Article 17 of Treaty on the EU, the Commission shall promote the general interests of the Union and take appropriate initiatives to that end. It shall ensure the application of the treaties.

Question 6

What is one of the most obvious violations of EU law?

Answer 6

Lack of the transposition of a directive; adoption of a legal act which is incompatible with EU law.

Question 7

Why was France held liable in the judgement Commission vs. France?

Answer 7

France was held liable for failing to take all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions of private individuals.

Question 8

What is allowed under Article 36 of the Treaty on the Functioning of the EU?

Answer 8

It is allowed for a member state to apply prohibitions or restrictions on imports-exports of goods in transit, justified on the grounds of public morality, public policy or public security as well as the protection of health and life of humans, animals or plants and the protection of national treasures possessing artistic, historic or archaeological value or the protection of industrial and commercial property.

Question 9

In the light of the practice and the jurisprudence of the Court, in how many stages the proceeding against a member state may be divided into?

Answer 9

It may be divided into two stages; administrative; pre-litigation and judicial procedure.

Question 10

Who can initiate the administrative procedure?

Answer 10

The European Commission.

Question 11

How many phases has the administrative proceeding?

Answer 11

Two phases: informal and formal.

Question 12

Is there an express provision in the Treaty on the liability of a member state for damage caused to an individual as a result of a breach of EU law?

Answer 12

No.

Question 13

What was held in the case Francovich vs. Bonifaci regarding the damage caused to an individual as a result of a breach of EU law?

Answer 13

The Court reminded that the subjects of the legal system, which is integrated into the legal systems of the member states, are not only the member states but also their nationals.

Question 14

Is the principle of liability inherent in the system of the treaties?

Answer 14

Yes.

Question 15

In what judgement did the Court held the decisive test for finding that the breach of EU law is sufficiently serious?

Answer 15

In the Brasserie and Factortame judgement.

Question 16

What is the principle of procedural autonomy?

Answer 16

In the absence of EU legislation, it is for the internal legal order of each Member State to indicate the competent courts and lay down the detailed procedural rules for legal proceedings intended to fully safeguard the rights which individuals derived from EU law.

Question 17

What is the principle of equality?

Answer 17

In the light of the jurisprudence of the Court of Justice of the EU, the conditions for reparation of loss and damage let down by the national law of the member states must not be less favorable than those relating to similar domestic claims.

Question 18

What is the principle of effectiveness of procedural measures?

Answer 18

The principle of equality must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.

Question 19

What do the principle of equality and principle of effectiveness of procedural measures limit?

Answer 19

The procedural autonomy of a member state.

Question 20

Is the infringement procedure a prerequisite for the claim of damages?

Answer 20

No. It would be contrary to the principle of the effectiveness of EU law.

Question 21

What is article 7. of the Treaty on the EU?

Answer 21

…

Question 22

What is article 258. of the Treaty on the Functioning of the EU?

Answer 22

…

Question 23

Explain the three-stage procedure under article 7 of the Treaty on the EU.

Answer 23

…

Question 24

What is article 17. of the Treaty on the EU?

Answer 24

…

Question 25

How does a member state act through?

Answer 25

Through its authorities.

Question 26

What did the Court held in the Foster case regarding the responsibility of a member state?

Answer 26

A member state may be responsible also for a body whatever its legal form has been made responsible according to a measure adopted by the state for providing public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.

Question 27

What did the Court held in the judgement Commission vs. France?

Answer 27

It held that a member state may be responsible also for failing to take all necessary and proportionate measures in order to prevent the violation of EU law by private parties.

Question 28

What is article 36. of the Treaty on the Functioning of the European Union?

Answer 28

…

Question 29

What shall the Commission deliver if it considers that a member state has failed to fulfill an obligation under the treaties?

Answer 29

It shall deliver a reasoned opinion on the matter after giving the state concerned an opportunity to submit its observations.

Question 30

Explain the two phases of administrative proceedings in the case of lack of transposition of a directive.

Answer 30

…

Question 31

What does the Commission do in the informal phase of administrative proceedings?

Answer 31

It tries to get more information about the alleged violation and asks the state in question for an explanation. Afterward, it issues a letter of formal notice.

Question 32

What is a letter of formal notice of the Commission?

Answer 32

It is an act in which the Commission for the first time formulates allegations against a member state.

Question 33

Is the member state obliged to answer the letter of formal notice?

Answer 33

No.

Question 34

What does the reasoned opinion of the Commission set limits to?

Answer 34

It sets limits on the court’s jurisdiction of the case.

Question 35

What is the second stage of the proceedings?

Answer 35

The litigation proceedings.

Question 36

What does it mean that a judgement is of declaratory character?

Answer 36

It is binding for the member state and the court decides whether the member state has violated EU law.

Question 37

May the procedure for violation of EU law be initiated by another member state as well?

Answer 37

Yes.

Question 38

What is article 259. of the Treaty on the Functioning of the European Union?

Answer 38

…

Question 39

In what time the Commission has to deliver a reasoned opinion?

Answer 39

Within three months of the date on which the matter was brought before it.

Question 40

What did the Court held in the case Commission vs. France regarding the penalties?

Answer 40

It held that the recourse to both types of penalties is not precluded. While the imposition of a penalty payment seems particularly suited to inducing a member state to put an end as soon as possible to a breach of obligations which in the absence of such a measure would tend to persist. The imposition of a lump sum is based more on assessment of the effects on public and private interests of the failure of the member state concerned to comply with its obligations.

Question 41

What did the Court order France to do regarding penalties in the case Commission vs. France?

Answer 41

It ordered the French Republic to pay both penalty and the lump sum.

Question 42

How is the penalty payment calculated as?

Answer 42

It is calculated as a multiplication of the flat rate amount at present 700 euro, the aggrievedness of the breach in a scale from 1 to 20 and the time factor from 1 to 3, as well as the economic factor calculated for each state separately.

Question 43

How is the lump sum calculated as?

Answer 43

It is calculated as a multiplication of the flat rate amount at present two hundred and thirty euro. The aggrievedness of the breach, the time factor as a number of days of breach of EU law and the economic factor are calculated for each member state separately.

Question 44

Which principle does the principle of effectiveness underlie?

Answer 44

It underlies the principle of liability of a member state for damage.

Question 45

What is the principle of sincere cooperation in the light of article 4. of the Treaty on the EU?

Answer 45

The member states are required to take all appropriate measure whether general or particular to ensure fulfillment of their obligations under EU law and they are obligated as well to nullify the unlawful consequences of a breach of EU law.

Question 46

What did the Court found, regarding the principle of liability, in the judgement Brasserie and FactorTime?

Answer 46

It found that the principle of liability is reflected by the provision of the treaty according to which in the case of non-contractual liability of the EU, the EU shall in accordance with the general principles common to the laws of the member states make good any damage caused by its institutions or by its servants in the performance of duties.

Question 47

What are the conditions under which the state may be held liable for damage caused to individuals according to the jurisprudence of the Court of Justice?

Answer 47

The rule of law infringed must be intended to confer rights on individuals. The breach must be sufficiently serious and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

Question 48

What are the factors the court takes into consideration for finding that a breach of law is sufficiently serious (decisive test)?

Answer 48

• the clarity and the precision of the rule breached
• the measure of discretion left by that rule to the national or EU authorities
• whether the infringement and the damage caused was intentional or involuntary
• whether any error of law was excusable or inexcusable

Question 49

When is a breach of EU law clearly sufficient serious according to the Court of Justice?

Answer 49

It is sufficient serious if it has persisted despite a judgement finding the infringement in question to be established or a preliminary ruling.

Question 50

What kind of legal effect have the right of individuals arising from the provisions of EU law in domestic legal systems?

Answer 50

Direct effect.