Enforcement Flashcards
what would happen if substantive rights and obligations were left to the cooperation of MS alone?
- Substantive rights and obligations granted under the Treaties would be ineffective if left merely to the cooperation of MS. (if MS could self-regulate, EU law would probs not be followed, you would still have the EU directives, but unless you had an enforcement mechanism, the rights of people may not be given)
- Individual rights may be abused by the EU institutions and by MS.
What was created in the Treaty to help?
- So, a variety of enforcement proceedings and methods for reviewing the actions of both the institutions and MS were created in the Treaty, placed under the scrutiny of the ECJ, with individuals able to gain remedies.
- These procedures are known as “direct actions” and supplement ‘indirect actions’ of the Art 267 reference procedure.
- The measures are broad in that they allow a wide range of applicants to initiate proceedings.
Art 258 Infringement proceedings against MS:
Introduction
- EU depends on a partnership with MS. e.g., in the implementation of directives.
- But it is not uncommon for MS to be careless or even reluctant in fulfilling their obligations.
- So, the Treaty provides the means of calling MS to account.
- It is normally invoked by the Commission under Art 258.
- But it can be initiated by other MS under Art 259 (MS rarely take an action in the CJEU against other MS)
Actions by the Commission under Art 258:
The Commission is the “watchdog of the treaties”.
So, it is empowered by Art 258 to monitor behaviour of MS and enforce compliance with Treaty obligations if necessary.
By Art 258:
- “If commission considers a MS has failed to fulfil an obligation… it shall deliver a reasoned opinion on the matter after giving the state concerned opportunity to submit its observations. If the state concerned does not comply… within a period laid down by the Commission, it may bring the matter before the CJEU.”
What are the purposes of Article 258?
- To ensure Member States comply with Treaty obligations
- To provide a procedure for dispute resolution
- To provide means of clarifying law for Member States
is there another stage in the process?
- There are three formal stages in the procedure - but these are usually proceeded by an informal stage.
This is Mediation (informal):
- the Commission engages in discussions with the Member State, which will usually remedy the error at this point.
- The action is then discontinued
- Commission will write to M.S - MS will agree and fix it
What is a formal notice of default:
- Where the commission remains dissatisfied it issues a notice inviting the Member State to submit its own observations
- This stage defines the terms of reference which are then fixed (Commission v Italy (Re Payments of Export rebates), 31/ 69)
- (Commission can only make allegations against items in the terms of reference
What is a reasoned opinion?
- Issued if the Member State still fails to comply
- Sets out why the Member State is in default and a time limit
- But it not its self-binding (Alfonse Luttick GmbH v Hauptzollamt Saarlouis 57/65)
When will there be court proceedings in the ECJ?
- The Commission brings an action if the Member State still fails to comply.
- But the issue can still be settled without a court decision, e.g., interim relief under Article 279
- (If the MS doesn’t comply within the time frame the commission will begin court proceedings)
Many defences have been tried, but most fail
- Internal difficulties (Commission v Belgium 77/69)
- Reciprocity (Commission v France (Re restrictions on lamb imports)232/78)
- Force majeure (Commission v Italy 101/74).
- Objections by trade unions (Commission y UK 128/78)
(Most of these defences are accepted by international law - but not the ECJ
What was the case before TEU?
How was this changed by Art 260?
- Before TEU the ECJ’s decisions were incapable of actual enforcement so more Article 258 proceedings were used.
- Now, by Article 260, a financial penalty is possible, e.g., Commission v Greece C- 387/97 and this would particularly apply where there is a serious breach of EU law (Commission v France C-121/07)
Actions brought by member states under Article 259
- This was always intended to be an exceptional procedure.
- However, it is a useful safeguard against errors of judgement by the Commission.
- It is a similar procedure, though Member States should work closely with the Commission in preliminary stages.
- Only one case has been brought so far France V UK 141/78
- Commission under 258
- Member States under 259
- Doesn’t usually happen - only one case brought so far
