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Constitutional and institutional law of the European Union.

Section C: Remedies and procedures in European Union law.

Chapter 2: Enforcement proceedings by the Commission.

Notes by Kaihsu Tai, 2011-07-05.

Introduction
The four ways in which the European Court of Justice (ECJ) hears a case are state v state (Article 259 TFEU, ex 227 TEC); Commission action (258 TFEU, ex 226 TEC); reference from national court (267 TFEU, ex 234 TEC); and appeal from the General Court (ex Court of First Instance; 256 TFEU, ex 225 TEC) and specialized courts (257 TFEU, ex 225a TEC). The first is rarely used and the leading case is Case 141/78 France v UK. In this chapter, the second (Commission action) is discussed.

Article 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 of the European Union."

Grounds
The failure ‘to fulfil an obligation under the Treaties’ (Article 258 TFEU) covers also EU secondary law and general principles as well as Treaty provisions. Common Foreign and Security Policy is largely excluded from the Court’s jurisdiction: Article 24(1) TEU. But included are international agreements concluded by the Union: Case C-61/94 Commission v Germany (International Dairy Arrangement). The seriousness of the violation is not a relevant consideration: Case C-209/89 Commission v Italy.

A violation may be constituted either in fact or in law. Even if the law formally observes EU law obligations, an informal administrative practice, if it is sufficiently consistent and general, will be enough to constitute a violation: Case 249/81 Commission v Ireland (Buy Irish). To avoid uncertainty in law, member states have a positive obligation to repeal conflicting national legislation even if it is not being enforced: Case 167/73 Commission v France (French Merchant Seamen).

The subject of the failure is the member state, which includes the legislature and the judiciary thereof, as well as the executive: Case 77/69 Commission v Belgium, Case C-129/00 Commission v Italy. (For the separate issue of damages and remedies in such breaches, see Case C-6/90 Francovich v Italy, Case C-46/93 Brasserie du Pêcheur v Germany, Case C-224/01 Köbler v Austria; distinguish from lump-sum fine and penalty payment below, and from possible restitution in state-aid cases.) This can also include other agencies of the member state such as local authorities and other organs or agencies.

Actions of individuals can exceptionally be ground for Commission action; for example, France was held to have failed in its Treaty obligations by failing to control private protests against foreign products: Case C-265/95 Commission v France (Spanish Strawberries). A member state can be found to violate EU law in a ‘general and persistent’ manner in a Commission enforcement action: Case C-494/01 Commission v Ireland (Irish Waste). Once a failure has been found to exist, force majeure, civil disturbances, or organized crime are irrelevant: Case C‑297/08 Commission v Italy (Campania Waste).

Procedure
There are two stages of the process. The first is the administrative stage, in which Member States are under a duty to cooperate with the Commission throughout this process: Case C-375/92 Commission v Spain. Only after this, a second, judicial, stage of bringing proceedings before the ECJ may be engaged: Article 258 TFEU (ex 226 TEC); Rules of Procedure of the ECJ.

The Commission is subject to a general duty to ‘ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them’ (Article 17(1) TEU, ex 211 TEC), but it has discretion in whether bringing an action against a member state before the ECJ is the best way to achieve this: Case 48/65 Lütticke v Commission, Case C-29/92 Asia Motors v Commission.

"When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment."

Interim measures
‘The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures’: Article 279 TFEU (ex 243 TEC). Interim measures are covered by Articles 83 to 89 of the Rules of the Procedure of the ECJ. Three considerations are taken into account in granting an interim order: 1 likelihood of the proceedings being successful; 2 urgency; 3 balance of irreparable damage in the interest of either party: illustrated in Case C-195/90 R Commission v Germany (Road Tax).

Effects
The effect of a successful action under Articles 258 and 259 TFEU is only declaratory; ‘the State shall be required to take the necessary measures to comply with the judgment of the Court’: Article 260(1) TFEU (ex 228 TEC). Further Commission action for a ‘lump sum’ (fine) or (daily) ‘penalty payment’ is possible in case of continued infringement: Article 260(2); distinguish from damages: Francovich, above. The Court can apply both in a single action, the lump sum for past violation, the penalty payment for future: Case C-304/02 Commission v France (French Fisheries II).