Infringement Procedure

Question 1

Which Article contains the Infringement Procedure?

Answer 1

Article 258 of the TFEU (Treaty of the Functioning of the European Union) provides for the Infringement Procedure.

Question 2

What is the purpose of the Infringement Procedure?

Answer 2

The procedure allows for the European Commission to take action against member states who fail to fulfil obligations under the various Treaties.

Question 3

What is the broad process the Commission will follow under the Infringement Procedure (Article 258)?

Answer 3

The Commission, upon considering a state to have failed to fulfil an obligation, will first allows said state the opportunity to submit its observations and will then deliver a reasoned opinion on the matter.

Question 4

What happens if a state refuses to comply with the reasoned opinion of the Commission?

Answer 4

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

Question 5

What power/role does Article 258 confer upon the European Commission?

Answer 5

Being able to bring Member States before the CJEU, the Commission has been given a central role in the enforcement of EU law. The Commission acts as the “public prosecutor” against Member States that do not comply with their obligations.

Question 6

How is the policing role of the Commission somewhat limited?

Answer 6

The Commission apparatus is relatively small, in practice it monitors mainly just compliance on the part of member states and relies heavily on complaints made to it by individuals.

Question 7

Can individuals submit complaints to the Commission regarding potential infringements of EU Law by member states?

Answer 7

Yes, every citizen can complain to the Commission about a breach of EU law allegedly committed by a Member State. The Commission will then investigate the matter.

Question 8

What do the Commission have to specifically consider when considering individual complaints regarding infringement?

Answer 8

The function of the Commission is not to protect the interests of individuals – rather, to decide whether bringing an infringement procedure would be in the public interest.

Question 9

What are the three key stages of the Article 258 TFEU procedure?

Answer 9

1. The Informal Stage
2. The Administrative Stage
3. The Judicial Stage

Question 10

What is the informal stage?

Answer 10

This is where the Commission will contact the Member State and explain why it believes that the Member State is acting in breach of EU law. The Member State is then given the chance to respond to the allegations and to propose a solution.

Question 11

What happens if the Commission are not pleased with the outcome of the informal stage?

Answer 11

If the Commission is not pleased with the outcome of the informal stage, the second stage becomes more serious. This is often called the administrative stage.

Question 12

What is the administrative stage?

Answer 12

It will start with the Commission sending a formal letter of notification to the Member State. This letter will contain detailed information about the alleged breach of EU law. The Member State is then given a certain period of time to respond. If the Commission is unhappy with the response, it will deliver a reasoned opinion in which the alleged breaches of EU law are clearly set out.

Question 13

What happens if the state do not react to the reasoned opinion of the Commission given in the administrative stage?

Answer 13

The Commission can refer the case to the Court of Justice.

Question 14

What is the judicial stage?

Answer 14

This is the final stage of the procedure. The Court will then have to rule on whether the Member State has acted or is acting in breach of EU law.

Question 15

What discretionary power does the Commission have when enforcing Article 258 TFEU?

Answer 15

The Commission has discretion to decide whether or not to bring an infringement procedure. It can decide autonomously whether it wants to start the procedure. This applies to all stages of the procedure.

Question 16

How does the discretion of the Commission affect the position of the individual?

Answer 16

The discretion means it is not possible for an individual to claim that the Commission should bring an infringement procedure against a Member State – see Star Fruit (Case C-247/87). In such cases, the individual will have to start their own case before the national court.

Question 17

Are the Commission able to bring an infringement procedure for breaches already remedied?

Answer 17

Generally, yes, an action can be brought even if the Member State has already remedied the breach – this is based on the deterrent function of the infringement procedure.

Question 18

In what instance may the Commission be unable to initiate an infringement action for an already resolved breach?

Answer 18

If the Member State has remedied the breach before the deadline set in the reasoned opinion had expired, the Commission is no longer allowed to bring the case before the Court of Justice.

Question 19

What are the most common types of breaches committed by Member States?

Answer 19

The non-implementation or erroneous implementation of EU directives, and a breach of one of the Treaty provisions (for example, the free movement provisions).

Question 20

What happens when the CJEU finds that a member state has acted in breach of EU law, or has failed to fulfil its obligations?

Answer 20

There is not some sort of standard list of sanctions that the Court can impose. The standard end of an infringement procedure is simply a finding of the Court that the Member State has acted – or has not acted – in breach of EU law.

Question 21

What was the slight issue arising from the lack of any standard sanctions available to the CJEU following the infringement procedure?

Answer 21

The sole finding of an infringement by the Court did not always contribute to the effective enforcement of EU law, since Member States could simply decide to ignore it. The “shame” of a judgment given against them was not always sufficient to actually make them act differently.

Question 22

What measure was taken to address the issue of member states ignoring breaches of EU law as identified by the commission?

Answer 22

Article 260 TFEU was introduced by the Treaty of Maastricht. There are two different types of sanctions provided for in Article 260 TFEU.

Question 23

What are the two different types of sanctions provided for under Article 260 TFEU?

Answer 23

1. Sanctions for incompliance with previous judgements

2. Sanctions for non-implementation of a Directive

Question 24

How does Article 260 TFEU provide sanctions for incompliance with previous judgements?

Answer 24

A lump sum or penalty payment for non-compliance with a judgment of the Court of Justice. If the Member State does not remedy the breach after the judgment, the Commission can bring the Member State before the Court of Justice for a second time and claim a lump sum or a penalty payment. The Court is then free to impose any lump sum or penalty payment it finds appropriate.

Question 25

How does Article 260 TFEU provide sanctions for non-implementation of a Directive?

Answer 25

Where the commission finds a member, state has failed to implement a directive it can immediately ask for a lump sum or a penalty payment in the FIRST infringement procedure (this differs from the sanctions for incompliance).

Question 26

How is the discretion of the court different in cases of non-implementation?

Answer 26

The discretion of the Court of Justice is then more limited: it cannot impose a higher lump sum or penalty payment than what the Commission has asked for (this is different from the procedure for non-compliance with a previous judgment).