The Commission can take member states to court for their violations of EU law. If the CJEU rules in favour of the Commission, they can impose sanctions on the member state.
Originally, infringement proceedings were seen as the main enforcement mechanism of EU law. Since direct effect and supremacy have been developed, their usage has become less relevant. The less likely it is that litigation would succeed under national courts (through direct effect and supremacy), the more likely it is that the Commission will bring infringement proceedings.
Art 258 TFEU:
‘If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.’
‘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’.
Stages:
Administrative Stage (takes 24 months on average)
1.1 - Starts with an informal exchange and clarification.
Resolves 68% of cases.
1.2 - If the issue is not resolved or the Commission is not satisfied by the reasoning of the member state, formal notice can be given at the full discretion of the Commission. The notice determines the actual content, form and nature of the violation.
Resolves 84% of cases.
1.3 – If the Commission is still not satisfied, it will give a reasoned opinion that prescribes the steps to be taken and a time frame.
Resolves 94% of cases.
Judicial Stage
2.1 - The reasoned opinion given above forms the basis for action for an infringement before the ECJ.
On average, only 6% of cases go to the Court.
In 2019, the Commission won 94/103 cases.
2.2 - The CJEU delivers its judgement, possibly imposing penalties or sanctions if it finds in favour of the Commission.
Ultimately then, the enforcement of the enforcement of EU law is through money.
Art 259 TFEU:
Possibility for a member state to litigate against another member state.
Art 260 TFEU:
‘If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court … [including] a lump sum or penalty payment.’
Lump Sum or Penalty Payment:
Both a lump sum and penalty payment can be imposed if they see to different elements of the breach, despite the fact that the treaties say 'or'.
In C v FRANCE, French law had nationality requirements for boats that had fishing rights in its territorial waters and nationality requirements for dock workers. This was in breach of anti-discrimination law. The CJEU rules in favour of the Commission, but France does nothing to remedy the problem.
The Commission takes France back to court and the CJEU impose a lump sum for the violations in the time between the first judgement and the current judgement (€20m), and a penalty payment for every 6 months of delay in responding (€57m).
In C v POLAND, Poland established a disciplinary chamber of the Polish Supreme Court to review the content of judicial decisions. This raises questions on the independence of this chamber from the Polish government, the independence that judges will show with the threat of being disciplined and the procedural rights (PRP) available to judges.
The CJEU found a violation of Art 19 TEU and Art 267 TFEU. Poland did not comply. The Commission took Poland back to court for not complying. The ECJ imposed €1m/day fine due to the potential ‘irreparable harm’. Poland continue to refuse to pay.
Calculations are based on the seriousness of the breach, the duration of the breach and the member state’s ability to pay.
Effects of Infringement:
Member states must take necessary steps to comply with the CJEU’s judgement.
Infringement also creates the basis for claims for damages for individual claims in national courts. (EG: FACTORTAME) Claimants can cite the CJEU’s ruling to claim against their member state.
CJEU may also impose sanctions under Art 260.
Centralised Infringement Procedure and Direct Enforcement:
Infringement proceedings can be used for the violation of any Treaty provision, from minute breaches in regulation to the rule of law backsliding in Poland.
It is primarily used to oversee the implementation of Directives by creating negotiation between member states and the Commission, with the threat of enforcement.
Priorities of the Commission:
Use of discretion – the Commission does not seek to litigate against every breach, but the most important / severe breaches must be (especially for issues of fundamental rights and the internal market).
‘It is important that the Commission use its discretionary power in a strategic way to focus and prioritise its enforcement efforts on the most important breaches of EU law affecting the interests of its citizens and business. In this context, the Commission will act firmly on infringements which obstruct the implementation of important EU policy objectives, or which risk undermining the four fundamental freedoms.’
‘As a matter of priority, the Commission will investigate cases where Member States have failed to communicate transposition measures or where those measures have incorrectly transposed directives; where Member States have failed to comply with a judgment of the Court of Justice as referred to in Article 260(2) TFEU; or where they have caused serious damage to EU financial interests or violated EU exclusive powers as referred to in Article 2(1) TFEU read in conjunction with Article 3 TFEU.’
The Commission must continually safeguard against the rule of law backsliding and risks to judicial independence by protecting the Preliminary Reference Procedure.
‘The obligation to take the necessary measures to comply with a judgment of the Court of Justice has the widest effect where the action required concerns systemic weaknesses in a Member State’s legal system. The Commission will therefore give high priority to infringements that reveal systemic weaknesses which undermine the functioning of the EU’s institutional framework. This applies in particular to infringements which affect the capacity of national judicial systems to contribute to the effective enforcement of EU law. The Commission will therefore pursue rigorously all cases of national rules or general practices which impede the procedure for preliminary rulings by the Court of Justice, or where national law prevents the national courts from acknowledging the primacy of EU law. It will also pursue cases in which national law provides no effective redress procedures for a breach of EU law or otherwise prevents national judicial systems from ensuring that EU law is applied effectively in accordance with the requirements of the rule of law and Article 47 of the Charter on Fundamental Rights of the EU.’
Changing Models – Citizen Involvement:
Although the Commission have full discretion on what to litigate, often they are acting on the complaints of individuals. This creates tension because the Commission does not have to justify when it decides to not take matters further - it has full discretion on what to litigate.
Citizen Involvement:
The original model revolved on dialogue between the Commission and member states, with the ECJ being there to enforce where necessary.
In the 1980s, the model began to involve complaints by citizens, allowing the Commission to use them to enforce EU law.
Then, over the late-90s and early-2000s, a shift in the EU occurred requiring it to become more open, transparent and accountable (democratic deficit wave). The European Parliament and Ombudsman became involved to make sure the Commission were doing a good job of overseeing the enforcement of EU law.
The new model (the EU Pilot) is a decentralised model of dispute resolution. The citizen’s complains no longer go to the Commission, but contact points set up in each member state to deal with these complaints. If, after 10 weeks, the issue is not resolved, the Commission will become involved under the normal procedure.
Most member states meet the 10 week requirement of the new model. This means that, for the majority of the time, the EU is not actually involved.
Resources:
References:
Cases Mentioned:
Case C-304/02 Commission v France
Case C-791/19 Commission v Poland; Case C-204/21 Commission v Poland
Case C-49/93 Factortame
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