Public Enforcement: Arts 258-260

Question 1

What is the difference between Private and Public Enforcement?

Answer 1

• Pte is Person vs State; Public is State vs State/EU Institution
• Pte can get compensation for damages; Public cannot
• Pte takes the amount of time it takes to complete ordinary proceedings; Public is often very lengthy

Question 2

What are the ways in which a (natural/legal) person can begin Public Enforcement proceedings?

Answer 2

Claimant may:

• Bring the case up to the Commission for PE proceedings against the State, or consult an ombudsman

Question 3

What are the types of Public Enforcement proceedings available?

Answer 3

• Arts 258-260 TFEU: Declaration of Member State’s Breach
• Art 263 TFEU: Action for Annulment
• Art 267 TFEU: Preliminary Reference

Question 4

For Declaration of MS’ Breach under ARTICLE 258 TFEU, what is the procedure?

Answer 4

1. Administrative Stage
   - – Informal notification by Commission
   - – Formal notification by Commission, MS has 2 months to respond
   - – Commission’s reasoned opinion
2. Judicial Stage
   - – Commission may choose to bring a case against MS in CJEU

Question 5

For Declaration of MS’ Breach under ARTICLE 259 TFEU, what is the procedure?

Answer 5

1. MS brings a matter to the Commission, and Commission must listen to both sides
   2a. Commission may choose to deliver a reasoned opinion

2b. MS may bring matter to the CJEU without the Commission’s reasoned opinion
- – Commission v Ireland: In Ireland v UK over a nuclear power plant dispute, Ireland was told to go consult the EU court rather than the Tribunal

Question 6

After the proceedings in BOTH ARTS 258 and 259 TFEU, what sanctions will be applied according to Art 260 TFEU?

Answer 6

260(1)
• MS ‘shall take all necessary measures to comply’
— Waterkyn:
— Commission v Germany:

260(2)

1. Commission invites MS’ observations on any improvements in the situation
   - – Treaty of Lisbon: No 2nd reasoned opinion required here
2. Commission may choose to bring a case before the CJEU if MS not considered to have taken necessary steps to comply
3. Commission may specify a ‘lump sum or penalty payment’; CJEU may impose one, not bound by Commission’s specifications

Question 7

For the proceedings under ART 258 TFEU, what can the Commission do according to Art 260(3) TFEU?

Answer 7

260(3)
• Commission can seek pecuniary penalties during Art 258 TFEU proceedings

• Commission specifies a ‘lump sum or penalty payment’; CJEU may impose a fine, bound by maximum amount specified by the Commission

Question 8

Under ARTS 258 and 259 TFEU, what does a reasoned opinion entail?

Answer 8

• Sets out grounds for accusation that MS is in breach

* Important for when the case reaches CJEU

Question 9

Under Art 258, what bodies can be addressed?

Answer 9

Any organ of state who has failed to fulfil an EU law obligation
• Commission v Belgium (re timber tax)

National courts tend not to be found liable for applying wrong domestic law
• C-129/00 Commission v Italy
• Kobler v Austria

Question 10

MS required to provide Commission with all information requested under Art 258 TFEU

Answer 10

C-494/01 Commission v Ireland

Question 11

CJEU can only examine grounds of complaints previously raised in the Commission’s reasoned opinion

Answer 11

C-350/02 Commission v Netherlands

Question 12

What 2 courts comprise the CJEU?

Answer 12

1. ECJ: Applications from national courts for preliminary rulings, annulment and appeals
2. General Court: Applications for annulment from individuals, companies and national governments

Question 13

Commission can bring a case against a MS anytime

Answer 13

Euratom

Question 14

Measures taken by the Commission during administrative stage are not binding

Answer 14

Lutticke

Question 15

Up to the Commission to decide when to bring an issue before CJEU

Answer 15

7/68 Commission v Italy

Question 16

Commission cannot be forced to start proceedings against another entity

Answer 16

Star Fruit