Enforcement proceedings

Question 1

What constitutes a breach for the purposes of enforcement proceedings

Answer 1

acts and failures to act with regard to treaty provisions or secondary legislation

Question 2

Where there is an excessive delay on the part of the Commission during the administrative stage of the enforcement proceedings, which may be damaging to the MSs defence, the Commission may be held to account (a limit of the wide discretion of the Comm’n)

Answer 2

Commission v Netherlands

Question 3

How are fines calculated in Art 260 action?

Answer 3

In accordance with 1997 (as amended in 2005) guidelines (not in the treaty) 1. Duration of breach, 2. Seriousness of breach, 3. MSs ability to pay (established in Comm’n v Greece)

Question 4

In Article 260 (judicial stage) proceedings, the burden is on the Commission (though they win circa 90% of time)

Answer 4

Commission v Portugal

Question 5

There is a good faith requirement on MSs to cooperate during the investigatory stage of enforcement proceedings

Answer 5

Commission v Ireland (illegal waste management)

Question 6

What is the definition of the state for the purposes of enforcement proceedings

Answer 6

All state agencies INCLUDING constitutionally independent institutions: Commission v Belgium

Question 7

A case that shows that private companies set up by the state are subject to enforcement proceedings under Arts 250-260 of the TFEU

Answer 7

Commission v Germany

Question 8

Where are the sanctions for non-compliance with the enforcement process found

Answer 8

Art 260

Question 9

What case shows that, for the purposes of enforcement proceedings, the state includes the courts and why did this bbecome an issue?

Answer 9

Commission v Italy - Italy’s court consistently interpreted law so as to conflict with the treaty. The decision of the ECJ was framed in terms of bad draftsmanship so as not to been seen to be criticising / infringing on the autonomy of the court

Question 10

Case that shows that the Commission can take (or not take) whatever factors they like into consideration when deciding whether to commence enforcement proceedings

Answer 10

Commission v UK

Question 11

Case that shows that the Commission need not take enforcement proceedings even where there is an obvious or serious breach

Answer 11

Luetticke

Question 12

ECJ “does not consider itself bound by the Commission’s reccomendation” as to appropriate fines for breach of EU law

Answer 12

Commission v Greece

Question 13

What section of the treaty concerns the “principle of sincere cooperation” and says that the MSs will take appropriate measures to ensure fulfilment of their obligations

Answer 13

S4(3) TEU

Question 14

Where is the enforcement process found

Answer 14

Arts 258 (Comm’n) and 259 (other MSs)

Question 15

Case that established that a fine AND a daily penalty can be imposed

Answer 15

Commission V France

Question 16

Formal notice re enforcement proceedings must state ALL legal complaints, or they can’t be relied on during Art 260 proceedings

Answer 16

Commission v Denmark

Question 17

What happens to a MS if it doesn’t pay fines imposed pursuant to Article 260?

Answer 17

Nothing!

Question 18

What case shows that the Commission has discretion over WHETHER / WHEN to commence enforcement proceedings

Answer 18

Commission v France

Question 19

Defences available to MS for non-compliance in an Article 260 action?

Answer 19

Not many! Possibly force majeure (Comm’n v Germany - data centre was destroyed, but defence forfeited because of excessive delay in rectification), possibly public order concerns (Spanish Strawberries)

Question 20

What is the definition / aim of enforcement proceedings and what articles are they governed by

Answer 20

A mechanism whereby the Commission or another member state can hold MSs to account for failure to comply with their treaty obligations. Arts 258 and 259, sanctions: 260

Question 21

Which case shows that failure to act / intervene can constitute a breach

Answer 21

Spanish Strawberries case - France did not intervene when farmers blocked import of strawberries because they claimed the authorities would be unable to cope. On the facts, they did not make out their case, but the ECJ was sympathetic to the defence in theory

Question 22

The Commission may set v short time limits for compliance / response to reasoned opinion by MS where the need to remedy is urgent or breach is deliberate

Answer 22

Commission v France (BSE)

Question 23

Which articles say that interim measures / injunctions are available if enforcement proceedings are likely to drag on?

Answer 23

278 and 279

Question 24

An example of one MS taking enforcement proceedings against another MS (rare)

Answer 24

France v UK (fishing net sizes) - the Commission had already delivered a reasoned opinion to the UK, but France wasn’t satisfied with the opinion.