Infringement proceedings (failure to fulfill obligations)

Question 1

Procedure

Answer 1

1st:

• Commission or MS starts the proceedings
• Commission sends letter of formal notice to MS
• Commission sends reasoned opinion to MS
• ECJ produces declaratory judgement (if MS v. MS, the MS will first send its complaint to the Commission and wait for a reasoned opinion, if no reasoned opinion within 3 months it can go on with the action)

2nd:

• Commission starts the proceedings
• Sends letter of formal notice to MS
• Commission will determine the amount of damages to be paid
• ECJ declares financial sanctions and is not bound to follow the Commission’s recommendations

Question 2

Who?

Answer 2

1. MS
2. Commission:
   - Can receive complaints from individuals
   - Starts proceedings at its own discretion

Question 3

Against whom?

Answer 3

A MS

Question 4

For what? What is a ‘failure’?

Answer 4

1st - Directives = failure to transpose, apply or incorrectly or incompletely
2nd - Legislation = Act/omission contrary to EU law
3rd - For individuals’ behaviour too (failure to act)
4th - For national courts decisions or failure to refer a preliminary question
5th - For conclusion of international agreements

Question 5

Defences?

Answer 5

MS cannot invoke internal difficulties (Commission v Portugal)