P5; CH5: Actions against MS Flashcards
What’ the Infringement Proceeding?
Action against a MS when it breaches the Acquis (fails to comply with Union law by fulfilling an obligation under the Treaties)
Who has exclusive jurisdiction on Actions against MS?
Court of Justice, but often from the impulse of the Commission
What consequence does the Action against MS produce?
Initially, the MS was just liable. Now, arguing that a breach in the acquis is a loss of revenues: MS IS BOUND TO COMPENSATE THE DAMAGE.
Specifically, an Infringement proceeding implies:
1) Prohibition of applying a the conflicting national provision (EXCLUSIONARY EFFECT)
2) Obligation for the MS to adopt the appropriate national provisions to facilitate the full effectiveness of this body of law
*MAY also imply OBLIGATION TO PAY DAMAGES
What’s the EU Pilot Mechanism and how is it different?
IT Tool created by the Commission in 2008 to request national infos on compliance with EU Law, based on LOYAL COOPERATION Principle.
It is meant to solve potential breaches at an early stage.
What institution can initiate an Infringement proceeding?
By ART.17 TEU, the Commission is tasked to initiate infringement proceedings. It has a margin of discretion and doesn’t have to state the reasons.
Commission’s duty is political, it can tolerate unlawful conducts.
If Commission is inactive, a MS can enact an infringement proceeding.
How is an Infringement proceeding enacted?
1) Commission starts an investigation ex officio or suggested by a mS
2) When the compliance is recorded, the compliant is notified within 15 working days (otherwise, they can access documents or recourse to the European Ombudsman)
The Pre-litigation stage
1) The Commission sends a formal notice letter to give the MS the opportunity to submit its observations
2) If not satisfactory, the Commission sends a non-binding reasoned opinion stating the deadline for compliance
3) After the deadline, Commission MAY bring the matter before the Court
This stage gives the MS the necessary time to enable EU law compliance
The Contentious stage
- Subject-matter has to be exactly the one identified in the pre-litigation stage
- Compliance during the proceedings helps the MS to avoid unfavourable judicial ruling
When can a Second Infringement Proceeding be activated?
A Second Infringement Proceeding can be activated if the MS does not observe the first decision and fails to comply with the firsy judgement.
When can a Second Infringement Proceeding produce?
PECUNIARY PENALTIES (periodic) or LUMP SUM(base), proposed by the Commission but imposed by the Court, depending on the urgency, seriousness, duration and impact of the violation (as well as financial capabilities of the ms)
Can a MS buy “the right to breach” a EU LAW norm?
No, since the degree of non-observance heavily weights on the amount.
