infrigement proceedings

Question 1

loyalty clause (Treaty article)

Answer 1

• Art 4(3) TEU - sincere cooperation
• establishes positive and negative obligation to adhere to and apply Union law

Question 2

Infringement procedure by Commission

Answer 2

• Art 258 TFEU
• administrative stage
• reasoned opinion
• judicial stage

Question 3

the administrative stage

Answer 3

• informal letter to MS
• prolonged communication and possible invenstigation by MS
• formal letter

Question 4

the reasoned opinion

Answer 4

• Commission is obligated to send a reasoned opinion if they find a breach
• more fully reasoned than a legislative proposal
• includes the Union provision, the details of the breach, responses to the MS’s arguments and a deadline for rectifying the breach

Question 5

the judicial stage

Answer 5

• can only include matters that were discussed in the reasoned opinion

Question 6

defences argued by MS

Answer 6

• rejected: difficulties in implementation due to internal situation, conflicting national legislation or difficult requirements, small infringement, implemented in practice
• accepted: implemented through existing national rules

Question 7

actions brought by MS

Answer 7

• Art 259 TFEU
• rare because damaging to international relations
• fisrt step: informing the Commission –> often takes over

Question 8

treaty article pecuniary penalties

Answer 8

Art 260 TFEU

Question 9

When are pecuniary penalties decided?

Answer 9

• new judicial proceedings after failure to comply with judgment of CJEU
• exception: proceedings regarding unimplemented/incorrectly implemented directives –> Commission can suggest pecuniary penalties immediately in the initial Art 258 procedure

Question 10

two types of pecuniary penalties and their nature/purpose

Answer 10

• penalty payment: persuasion to comply - cannot be imposed after breach has been rectified
• lump sum: deterrance - can be imposed even after breach is rectified

Question 11

three criteria for calculating a penalty payment

Answer 11

• duration of the infringement
• seriousness of the breach
• ability of MS to pay

Question 12

Interim measures: Which laws can be suspended during which proceedings by which court?

Answer 12

• Union acts challenged through Art 263 TFEU can be suspended by CoJ or GC
• National acts challenged by an infringeent procedure can be suspended by the CoJ
• National acts based on a Union acts which is being challenged through a preliminary ruling can be suspended (or otherwise remedied) by the referring national court.

Question 13

procedure for interim measure decided by CoJ or GC

Answer 13

• Commission request
• proof of urgency: avoid serious and irreperable harm
• Commission must also treat the measure as urgent
• after consideration of the harm that may be caused by the interim measures

Question 14

procedure for interim measure decided by national courts

Answer 14

• proof of urgency
• must set aside any national rules that prevent the interim measure

Question 15

two components/mechanisms of Art 7 TEU

Answer 15

• preventative mechanism: declare risk of breach of values
• sanctioning mechanism: serious and consistent breach of the values punished by suspension of rights, including voting irghts in council

Question 16

limits on the effectiveness of Art 7 TEU

Answer 16

• no judicial oversight –> very political, no guarantee of equal treatment or rigour
• preventative mechanism: only declaration of breach
• high voting threshold in the Council, unanimity in European Council
• sanctioning mechanism: “nuclear option” - more a rhetorical threat than a viable option