Infringement Procedure PDF (EU Law 2024/2025)

Infringement procedure EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The infringement procedure  Regulated by Articles 258 ff. TFEU.  The purpose of the infringement procedure is to verify the compatibility of...

Infringement procedure EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  The infringement procedure  Regulated by Articles 258 ff. TFEU.  The purpose of the infringement procedure is to verify the compatibility of acts and, more generally, of the behavior of Member States with EU law and thus to help ensuring the uniform application of EU law in all the Member States  It is divided into two stages: pre-litigation (main actor, the Commission) and litigation (Court of Justice) 1  The infringement procedure  Although Article 258 TFEU refers to the violation of obligations “under the Treaties”, the infringement procedure can actually be brought with regard to any violation of EU law (including, therefore, not only secondary legislation but also international agreements entered into by the Union, general principles etc.).  Broad scope of application = for example, compliance with EU law includes the need for Member States to provide in national legal systems sufficient judicial remedies to ensure effective judicial protection of rights in matters related to the interpretation and application of EU law under Article 19 TFEU (see C-391/18, Commission v. Poland, according to which although the organization of justice in the Member States falls within the competence of the Member States, this does not detract from the fact that, when exercising that competence, the Member States are bound to comply with their obligations under EU law)  There are some exceptions that are subject to specific procedures e.g. (i) non- compliance with the prohibition of excessive 2 deficits (Art. 126(10) TFEU) and (ii) state aid, the latter matter in which a special accelerated procedure applies.  Initiative: the Commission and (very residually) the Member States  General rule = this is a power of the Commission, which is given an impetus function regarding the verification of the correct application of Union law in the Member States, in line with its role as “guardian” of EU law under Article 17.1 TEU.  Exception = the procedure can also be activated by one Member State against another, as a mean of settling any disputes on the interpretation and application of the Treaties within the framework and according to the procedures provided by the EU system  In relations between states, it is an alternative to international law mechanisms for dispute settlement (e.g., countermeasures) that cannot be used among Member States  Rationale for the Commission's role = it is preferrable that Member States do not litigate directly one with each other, and therefore a system where there is always a third party (the Commission) to take the lead in litigation, even in those cases that are of interest to an individual Member state, has been preferred  Individuals, on the other hand, cannot go directly to the Court to claim that a Member State has breached an obligation under EU law: they can submit a complain about the breach to the Commission or to a Member State to urge them 3 to take action, but do not have the right to bring a case before the CJEU  Notion of infringement  Objective notion = any act or conduct of a State may give rise to an actionable violation under Article 258 TFEU  Active conduct = e.g., adoption of domestic legislation contrary to Union law;  Passive conduct = e.g., failure to adopt a measure necessary to bring domestic law into conformity with European law, although the most frequent case concerns the failure to transpose a directive.  (Quasi) objective liability = the infringement that may be the subject of the infringement procedure is taken into account in its objective manifestation:  irrelevance of the psychological element = it is not necessary for the Commission to demonstrate that the infringement has been caused by intent, fault or negligence on the part of the Member State or its organs  Irrelevance of the consequences of the infringement = it is not necessary for the Commission to demonstrate the negative consequences of the infringement 4 and the MS cannot escape liability by demonstrating the absence of any harm resulting from it.  Notion of infringement (2)  Very limited defenses available for Member States (force majeure) = the Member States may escape liability under Article 258 TFEU only by demonstrating the existence of insurmountable difficulties caused by force majeure and, in any event, limited to the period strictly necessary for diligent administration to remedy them.  It is not, on the other hand, permissible for the Member State concerned to invoke rules or practices of its internal system or circumstances or difficulties arising in that system to justify any failure to comply (see, e.g., C- 297/08, Commission v. Italian Republic, where Italy had tried to justify a breach of EU waste management legislation on the basis of the presence of particularly strong criminal organizations in some regions and of the opposition expressed by the local population to the installation of certain disposal facilities)  It is also not possible for a Member State to justify its non-compliance on the basis of the principle of reciprocity, i.e., on the basis that another Member State is also in default (see, e.g., already Case 52/75, Commission 5 v. Italy = EU order is different from international law)  ihlal anlaşmayıbozma Notion of infringement (3)  Unitary notion of State = by State is to be understood the state-organization, including all the articulations in which the exercise of public power on a Member State territory is organized; the Member State is therefore also liable for conduct attributable to independent powers (e.g. judges, independent agencies and authorities) with respect to the executive power or to territorial entities endowed with autonomy and exclusive powers:  The infringement shall not be over = the infringement identified and pursued by the Commission must be still in place, since the purpose of the procedure under Article 258 TFEU is precisely to put an end to the violation of EU law and to bring about a change in the behavior of the Member State and bring it into conformity with the dictate of the conferring rules, with a view to achieving the elimination 6 of the effects of a member state's failure to comply  The so-called informal pre-infringement procedure  Guardian of the Treaties (and secondary legislation) = in execution of this power, the Commission carries out systematic (though not complete) monitoring of timely compliance by States, with the aim of detecting cases of non-compliance and infringements, often also following complaints submitted by individuals (citizens, businesses) aware of violation of EU law  EU PILOT = before the formal beginning of the infringement procedure (on which see below), a structured dialogue mechanism between the Commission and Member states is in place,  Even before the letter of formal notice is sent to the concerned Member State, the Commission, if it believes that there is added value in attempting to resolve the issue quickly, informally asks the State for explanations on the (alleged) non-compliance and only if the Commission is not satisfied by the explanations provided by the MS, the Commission proceeds to formalize the procedure.  Discretionary power of the Commission = the beginning of the infringement proceeding is a discretionary power of the Commission, even following the filing of a complaint  No action for failure to act (article 264 TFEU) = if the Commission does not act, an action for failure to act cannot be initiated against the Commission (see, e.g., T-571/93, Lefevre)  Transparency = Individuals who have made a complaint can access the Commission's investigation file. 7  Pre-litigation phase (258(1) TFEU): letter of formal notice and reasoned opinion  Adversarial principle = the pre-litigation stage is inspired by and must respect the adversarial principle. The main acts of this stage are the letter of formal notice and the reasoned opinion  Letter of formal notice = is the first step in the procedure.  This is a non-formal act sent by the Commission to the Member State concerned in which it sets out the objections that the Commission imputes to that Member State.  The Member State has the opportunity and the burden of responding to the letter of formal notice within the period specified by the Commission (usually two months), defending itself with appropriate arguments in fact and in law  Reasoned opinion = if the Commission is not satisfied with the response received from the Member State, it proceeds to send a reasoned opinion, with specific and definitive indication of the violations in place and all the factual and legal elements in support of its position, also indicating the deadline by which the State must put an end to the non-compliance  It is a non-public act  It cannot change the subject matter of the challenge addressed to the State in the previous notice  It crystallizes the subject of future litigation and is 8a guarantee for member states  Litigation phase (259 TFEU)  Eventuality = this is only an eventual and potential step, as it can be launched by the Commission if the Member State has not complied with the Commission's request enshrined in the reasoned opinion within the specified time limit.  Discretion = the Commission can, but is not obliged to bring an action against the Member State even if the Member State has not complied with its obligations as set in the reasoned opinion and the Court has no jurisdiction to review the appropriateness of the decision to exercise (or to not exercise) that power (Commission v. Greece, C-200/88, judgment of Nov. 27, 1990).  Application = The litigation phase begins with the Commission submitting an application to the Court of Justice  The description of the infringement shall perfectly coincide with the description made in the pre- litigation procedure and, in particular, the reasoned opinion (on the reasonableness with which the principle of crystallization of the object by the reasoned opinion is to be understood see, however, Commission v. Italy, C-644/18 - air quality)  Interim measures = under Article 279 TFEU in case the ordinary requirements (fumus boni iuris; periculum in mora) possibly accompanied by sanctions 9 (see Case Commission v. Poland)  Litigation phase (259 TFEU) (2)  Initial deadline = the application can be submitted by the Commission, and therefore the action be brought, only after the deadline for compliance set out in the reasoned opinion has expired  No final deadline = the submission of the application is not subject to any deadline, as the Commission has always the option to delay the filing of the appeal (e.g., if it considers that the State will comply, albeit later than the deadline indicated by the Commission)  Relevant moment to assess the non-compliance = the deadline indicated in the reasoned opinion. 10  The Court's (first) ruling: the ascertainment of the infringement  Declaratory nature of the judgment = the judgment rendered by the Court has a mere declaratory nature  No constitutive nature = e.g. the Court cannot annul the national measures found to be incompatible with EU law  No sanctioning nature = e.g. the Court cannot impose fines on the Member State for having breached EU law  Effects of the judgement for the Member State to which is addressed = according to Article 260.1 TFEU, the State whose breach has been declared must take the measures that are necessary to comply with the judgment of the Court  national rules that have been declared incompatible with Union law must be removed by means of acts having the same force.  This is a competence of the Member State, which shall also identify measures and modalities of compliance.  However, this is not an entirely discretionary choice, especially in terms of timing. Indeed, Article 171 of the Treaty does not specify the time limit within which the enforcement of a judgment must take place. However, it is settled case-law that the requirement of the immediate and uniform application of Community law requires that such execution be commenced immediately and completed within the shortest possible time (Commission v. Greece, Case C-387/97, judgment July 4, 2000, para. 82)  Problem = due to its declaratory nature, the judgment 11 of the Court might have feeble deterrent effect on the MS  The Court's (first) ruling: the imposition of sanctions  Failure (or delay) to take the necessary measures to comply with the judgment may lead the Commission to initiate a second infringement proceeding against the Member State for violation of Article 260 TFEU.  Originally, such proceedings were indistinguishable from those under the current Article 258 TFEU and thus necessarily led to a second declaratory judgment.  In order to increase the deterrent effect of the second procedure, the Maastricht Treaty provided that the second procedure could lead to the issuance, against the offending member state, of a judgment in which the ECJ, upon Commission’s proposal, can impose on the Member State a pecuniary penalty.  The Commission, in fact, once the pre-litigation phase has been exhausted again, may submit an application to the Court in which it may state the amount of the lump sum or penalty payment, to be paid by the Member State in question, which it considers appropriate in the circumstances (Article 260.2 TFEU) (NB: the “or” shall be read as “and”)  The Court, if it recognizes that the Member State has not complied with the previous judgment, may impose a lump sum or penalty payment on12it (Article 260.3 TFEU):  The changes made by the Lisbon Treaty  The Lisbon Treaty has strengthened the effectiveness of the infringement procedure.  Less procedural burden = on the one hand, the mechanism of the second infringement procedure has been strengthened, making it faster.  In fact, Article 260.2 TFEU allows the Commission to refer the matter to the Court immediately after having put that State in a position to submit observations, without the need for the Commission to issue the reasoned opinion and wait for the expiration of the period given to the Member State to comply with it.  Penalties already with the first judgement = Article 260.3 TFEU provides that the Commission, as early as the first referral under Article 258 TFEU, if the Member State concerned has failed to comply with its obligation to communicate measures transposing a directive adopted by legislative procedure, may, if it considers it appropriate, indicate the amount of the lump sum or penalty payment to be paid by the State which it considers appropriate in the 13 circumstances."  Thank you! Questions ? PROF. AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 14