⇒ If the Commission considers a Member State failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter (saying what the Member State should do; this is not legally binding) after giving the Member State concerned opportunity to submit its observations

⇒ If the Member State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the CJEU

⇒ The commission initiates proceedings though complaints are brought by:

• The press (e.g. they may say a Member State hasn’t fulfilled duties)
• Other Member States (often because of the political consequences of Article 259)
• European parliament questions (e.g. MEPs can bring it to attention)
• Correspondence from citizens (e.g. we can tell the commission!)

⇒ So the above people can bring the matter to the Commission’s attention, but it is up to the commission if they do anything about it

⇒ Though complaints are brought by others (i.e. not the commission) the proceedings are bilateral (i.e. between the Commission and the Member State only)

⇒ The primary objective is to ensure the compliance of Member States with EU law

⇒ The ECJ will not examine the motivations for the Commission pursuing the particular case → Commission v United Kingdom [1988]

⇒ Reasonable Time Limits

• 5 years could be too late, but on the circumstances of this case it was not too late (Commission v Netherlands [1991])
• Member Sttaes have to prove the unusual length of time before Commission brought proceedings has effected its defence e.g. deleted files
• Is 5 days too short? (Commission v Ireland [1984])
• Very short periods are permitted in emergencies.
• Or where the Member State was fully aware of Commission’s position beforehand

⇒ As soon as an implementation time limit has passed the Commission will start to bring infringement proceedings

⇒ Member States are under an obligation not only to implement directives, but also an obligation to notify the Commission how they have done that

⇒ Commission has codified own rules and published them

⇒ There is an administrative stage and a judicial stage

⇒ First stage is the informal stage e.g. “we notice you failed to implement EU law do you want to change?!” – if nothing happens then it goes to 2nd stage

⇒ Second stage is the commission letter – so a letter is sent to the Member State

⇒ Third stage is a reasoned opinion – this is a bit more than a letter, which says these are the areas you have failed to implement EU law and you need to update in this manner – if they do nothing then it goes to the final stage

⇒ Final stage is a referral to the ECJ

⇒ This gives the Member State the opportunity to explain its current position and try to reach agreement with the Commission

⇒ In 2009 68% of complaints were dealt with at the informal stage.

⇒ If the issue cannot be dealt with informally the State will be given formal notification of the specific infringement alleged by the Commission.

• Normally given 2 months to reply.
• When they have replied, commission normally decides within a year whether to take the case to the next stage.
• 84% of cases dealt with at this stage.

⇒ The official means through which the Commission inform the state of the:

• Grounds for the allegation
• Time limit for the Member State's response

⇒ It is not biding on the Member State

⇒ The Commission is not obliged to address every argument made by the Member State at the pre-litigation stage i.e. they don’t have to respond to everything the Member Statea has said

⇒ The Commission must respond to a States response to a letter of formal notice (Commission v Ireland [2002])

⇒ The Reasoned Opinion must be essentially the same as the formal notice (Commission v Italy [2006])

⇒ The Commission cannot alter the substantive content of the Reasoned Opinion once it has been made (Commission v Italy [1970]) UNLESS:

• This narrows what is contained in the reasoned opinion (Commission v Germany [1998]), OR;
• An extension in order to incorporate events subsequent to the reasoned opinion can be obtained (Commission v France [1983])

⇒ Confidentiality – are these proceedings confidential?

• Until relatively recently the Commission didn’t report on its findings or report on the issues that were raised because it was seen as important to be fair that Member States were not ‘named and shamed’
• More recently this view had changed – it has been extended somewhat and they publish their reports online
• WWF case: it was said that even where Article 258 cases have been decided and the investigation itself has been closed, the Commission is under no obligation to publish those documents
• Petrie case: ECJ said we, the citizens, are not entitled to see the letters of formal notice and reasoned opinions send out by the Commission before the cases
• Bavarian Lager II case: ECJ said citizens had a right to see documents published 6 years after they were made, as it wouldn’t prejudice any forward coming investigation
• Sweden/API cases: Court held confidentiality of documents is not automatic but should be decided on a case by case basis

⇒ The remaining 4% of cases are taken to the ECJ

⇒ In 2008 the Commission claimed that it took an average of 50 months from the time of the reasoned opinion until its referral to the ECJ

⇒ In 2009 the Commission claimed this had fallen to 24 months

⇒ Why would you bring proceedings once the case has been remedied?

• It prevents continued illegality
• Can rule on breaches that only lasted for a short time
• Establish the basis of liability

⇒ 1. Breach of the obligation of sincere cooperation under Article 4(3) TEU

⇒ 2. Inadequate implementation of EU Law

⇒ 3. Breaches which interfere with EU external relations

⇒ 4. Systemic and persistent breaches or general practices

⇒ 5. Actions by the Courts of a Member State

⇒ Commission v Netherlands [1982]: there was a breach of the obligation of sincere cooperation → Member States were under an obligation to show they are implementing directives

• So Member States must facilitate the Commission’s tasks – particularly monitoring compliance with the treaty

⇒ Commission v France [74]: Obligation of Member State to properly implement EU law (here it was a directive) → if not properly implemented Commission can bring proceedings

⇒ Open Skies [2002]: Commission can bring proceedings against Member States that interfere with EU’s external relations/competence

⇒ Even where legislation is properly implemented a state can be held in breach if an administrative practice of the Member State infringes EU law

• It has to be consistent and general
• Commission v Ireland [2005]: waste disposal → the Commission brought proceedings against Ireland for consistent and persistent breaches of EU law

⇒ The ECJ have stated that the state is liable for action and inaction of any constitutionally independent organ of the state.

⇒ The Commission has avoided so far the politically sensitive area of an article 258 proceeding against a judiciary

• Nearly happened to Sweden 2004 – a reasoned opinion for failure of the Supreme Court to make a reference to the ECJ was given to Sweden by the Commission

⇒ States may introduce defences at any time in the proceedings!

⇒ What is not usually a defence:

• No adverse affects from non-implementation of the EU law is not a defence to Article 258 proceedings (Commission v Portugal [1999])
• Lack of intention not a defence (Commission v Belgium [1970])
• Reciprocity argument (they have done it, so why can’t we?) is not usually a defence (Commission v France (Sheep meat case) [1979])

⇒ Defences include:

• Force Majeure (McNicoll v Ministry of Agriculture [1988]) – there must be abnormal and unforeseeable circumstances; consequence must not have been avoided through exercise of all due care; Member States must show a normal degree of diligence
• The EU measure is illegal (Commission v Greece [1988]: ECJ argued the Member State should have raised the issue under Article 263)

⇒ Article 258 is quite ‘toothless’ → it doesn’t have much of an impact in the sense it cannot make Member States really do anything and it cannot make Member States pay damages i.e. has no method of enforcement

• Article 258 can only find violations
• Article 258 cannot award penalties

⇒ In order for compensation to be awarded Article 260 was created under the Maastricht Treaty: it allowed for damages to be awarded against Member States

⇒ Article 259 allows Member Sttaes to bring action against another Member State for alleged Treaty violation

⇒ The complainant State can take the matter to the ECJ even where the Commission believe there is no breach.

⇒ Very rarely used due to hostility it would cause between Member States

⇒ Member States can also bring cases under Article 258 (Spain v UK [2006]) - see notes above

⇒ Article 260 is intended to provide an incentive for Member States to comply with ECJ rulings

• Article 260(3) says the Commission has a right to award damages following Art 258 proceedings, and these damages tend to be quite substantial
• It is also interesting that Art 260(3) is specifically concerned with that inability to implement a directive or that failure to notify – so this perhaps goes further then some of the case law in Article 258

⇒ Lump sum and/or penalty payment (i.e. could be a one off payment, or weekly/daily/yearly etc.)

⇒ Criteria for calculation of penalty:

• The degree of seriousness of the infringement
• The duration of the infringement
• The ability of the Member State to pay the penalty

⇒ The ECJ don’t have to follow guidance of the Commission: Commission v France [2005]

• The Commission recommended a penalty payment against France
• The ECJ ignored it and fined France € 20,000,000 in July 2005, and the periodic payment was € 57,000,000 at six monthly intervals.

⇒ No upper limit to the fines; No formal collection methods; 85 cases in 2008 (half of these were environmental)

⇒ The Commission is no longer required to issue a reasoned opinion before seeking a remedy under Article 260 (they can just do it)

⇒ If a Member State has failed to notify the Commission of measures transposing an EU directive they can be charged directly under Art 260

• In these circumstances (where they go directly to article 260) the Court cannot exceed amount recommended by the Commission.

⇒ Where things might need to be changed with immediate effect an interim measure is used

⇒ Article 278: ‘The Court may… if it considers that circumstances so require, order that the application of the contested act be suspended’.

• So in certain circumstances they can essentially dis-apply either EU law or national law saying there is a conflict here and needs to be changed

⇒ Article 279: ‘The Court… may in any cases brought before it prescribe any necessary interim measures’

⇒ It must be urgent

⇒ There must be factual and legal grounds which prima facie justify the interim measures.

⇒ The Commission must be diligent, and ensure things are fair and good