Sometimes, accidentally or not, a Member State acts in conflict with EU law and therefore it is necessary that the Commission takes measures to make sure that the conflict is resolved for the best interest of the Community. For that reason, the Articles 226-228 EC have procedures to ensure that Member States comply with EU law and the Commission as the “guardian of the Treaty” is empowered with wide discretion and effective sanctions to punish Member States violating their commitment under Community Law. The primacy of the Community interest is here protected by a strong procedural mechanism included in the Treaty, which intends to ensure that the Member States act in consistency with the objectives of the EU without forgetting their duty to cooperate with the Commission under the Article 10 of the Treaty.
The Court of Justice of the European Union (CJEU) interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.
It can also, in certain circumstances, be used by individuals, companies or organisationsto take action against an EU institution, if they feel it has somehow infringed their rights.
What does the CJEU do?
The CJEU gives rulings on cases brought before it. The most common types of case are:
- interpreting the law (preliminary rulings) – national courts of EU countries are required to ensure EU law is properly applied, but courts in different countries might interpret it differently. If a national court is in doubt about the interpretation or validity of an EU law, it can ask the Court for clarification. The same mechanism can be used to determine whether a national law or practice is compatible with EU law.
- enforcing the law (infringement proceedings) – this type of case is taken against a national government for failing to comply with EU law. Can be started by the European Commission or another EU country. If the country is found to be at fault, it must put things right at once, or risk a second case being brought, which may result in a fine.
- annulling EU legal acts (actions for annulment) – if an EU act is believed to violate EU treaties or fundamental rights, the Court can be asked to annul it – by an EU government, the Council of the EU, the European Commission or (in some cases) the European Parliament.
Private individuals can also ask the Court to annul an EU act that directly concerns them.
- ensuring the EU takes action (actions for failure to act) – the Parliament, Council and Commission must make certain decisions under certain circumstances. If they don’t, EU governments, other EU institutions or (under certain conditions) individuals or companies can complain to the Court.
- sanctioning EU institutions (actions for damages) – any person or company who has had their interests harmed as a result of the action or inaction of the EU or its staff can take action against them through the Court.
The CJEU is divided into 2 courts:
- Court of Justice – deals with requests for preliminary rulings from national courts, certain actions for annulment and appeals.
- General Court – rules on actions for annulment brought by individuals, companies and, in some cases, EU governments. In practice, this means that this court deals mainly with competition law, State aid, trade, agriculture, trade marks.
Each judge and advocate general is appointed for a renewable 6-year term, jointly by national governments. In each Court, the judges select a President who serves a renewable term of 3 years.
How does the CJEU work?
In the Court of Justice, each case is assigned 1 judge (the “judge-rapporteur”) and 1 advocate general. Cases are processed in 2 stages:
- Written stage
- The parties give written statements to the Court – and observations can also be submitted by national authorities, EU institutions and sometimes private individuals.
- All of this is summarised by the judge-rapporteur and then discussed at the Court’s general meeting, which decides:
- How many judges will deal with the case: 3, 5 or 15 judges (the whole Court), depending on the importance and complexity of the case. Most cases are dealt with by 5 judges, and it is very rare for the whole Court to hear the case.
- Whether a hearing (oral stage) needs to be held and whether an official opinion from the advocate general is necessary.
- Oral stage – a public hearing
- Lawyers from both sides can put their case to the judges and advocate general, who can question them.
- If the Court has decided an Opinion of the advocate general is necessary, this is given some weeks after the hearing.
- The judges then deliberate and give their verdict.
- General Court procedure is similar, except that most cases are heard by 3 judges and there are no advocates general.
There are three elements evolving the Articles 226-228: 1) duty and powers given to the Commission; 2) authority given to Member States to stand against Member States on the interest of the Community and 3) Availability of a penalty system to fine when necessary. It is important to notice that there is another avenue to enforce EU law against Member States, which is though the Doctrine of Direct Effects, when the action is taken by individuals. However, this path cannot be used when it comes to the Articles 226-228 once the purpose here is to punish Member States and not to pay compensation to individuals. However, individuals play a huge role sending complaints to the Commission about Member States in breach of Community law. Nevertheless, in the event of absence of a motivation, the admissibility of the enforcement is not affected.
The concept of “breach of EC law” is very broadening as it can be related to an action, omission, or a failure to act. Examples that can be mentioned under ECJ’s case law are: breach of obligation of co-operation under Article 10 EC (96/81 Commission v. Netherlands); inadequate implementation of community law (167/73 Commission v. France); adoption of a legislation contrary to the EC Treaty, (178/84 Commission v Germany); failure to adopt provisions to give effect to EC regulations/adoption of provisions copying regulations into domestic law (39/72 Commission v Italy); failure to transpose directives/partial/late transposition (144/99 Commission v The Netherlands); failure to implement a decision (404/00 Commission v Spain).
Though, it is relevant to discuss the power of discretion given to the Commission related to the proceedings under Article 226, as this is a problematic area. The Commission here resolves 92% of the cases in a secret and diplomatic negotiation process during the administrative stage without going to ECJ. However, there is room here for the Commission to be considered tolerant or arbitrarily selective, unfair or oppressive, or that may be political or other reasons for simply deciding not to start proceedings against a MS in clear breach of EC law, amongst others. In Case 416/85 Commission v. United Kingdom, the UK argued the existence of a political motive behind Commission’s action not to start the infraction proceeding under a directive. The ECJ held that the Commission’s role is to decide whether or not the MS in question is in breach of Community law and not the motives for bringing the action. Moreover, in Case 29/84 Commission v. Germany, the ECJ decided not to punish a MS for not implementing a directive, dismissing the Commission’s infringement procedures once the German national authorities have right to decide the form and methods to adequate domestic law according to the directive under ex-Article 189 EC. Furthermore, in Case 247/87 Star Fruit Company v. Commission, were Belgian traders took the Commission to court because it did not start proceedings against France (banana market believed to be in breach of EC law), the ECJ ruled that the Commission can not be forced to start infringement proceedings under Article 226 EC. The Commission’s power of discretion is widely argued to decrease the effectiveness of EC law and complainants started looking for protection from the European Ombudsman, however its own initiative inquiries have mostly been considered with mixture of inconsistency, like in Rawling (2000 – 6 – European Law Journal 4, 18).
Another issue about the Commission’s discretion is related to the fact that there is no time limit to start the administrative stage, or to bring an action before the ECJ after the reasoned opinion. In Case C-265/95, Commission v. France (aka Spanish strawberries) the Commission waited over 10 years to enforce the proceedings after receiving regular complaints about French Government’s breach of the EC Treaty concerned to the free movement of goods connected to ex Article 5 of EC Treaty. The case law has also shown that the Commission must give MS enough time to respond the reasoned opinion. This was however contested in Case 1/00 Commission v. France (Mad Cow Disease), where the Commission gave France five working days to respond the reasoned opinion (it was extended to two weeks only), the case was taken to ECJ and the French Government alleged that the Commission’s urgent time-limits was unjustified and abusive. The Commission responded that French authorities were aware of the circumstances before the letter of formal notice. What is important to observe is that if a Member State does not fulfil the requirements of the reasoned opinion on its deadline, the Commission can bring the case to ECJ, starting the judicial stage. If a breach is declared, the Member State has the obligation to comply under Article 228 EC.
Member States on the other hand, can defend themselves against infringement proceeding under limited grounds; nevertheless, in most cases those defences are unsuccessful. Some defences widely used are: reciprocity (146/89 Commission v. UK and 52/75 Commission v. Italy), force majeure (101/84 Commission v. Italy), lack of intentional wrongdoing by the State, and procedural irregularity in the adoption of a Community measure. In Case 422/05 Commission v. Belgium, the defence was based on the fact that the time limit to implement national law had not expired yet; the ECJ ruled that the Belgium Government was in breach of Article 10 and 249(3) for only taking measures near the end of the transitional period, putting in risk the effects of the directive.
It is important to bear in mind that as the Commission can not be pushed to act, another Member State can bring a case to the ECJ if the Commission does not do it. That is through the Article 227 EC. However, the use of this avenue is rare due to diplomatic relations between Member States and is preferable to resolve disputes in a political way. There are three cases so far: 141/78 France v. UK (1979), concerned to fishing net mesh size in a clear dispute for revenge by the French government. The other two cases were 388/95 Belgium v. Spain (2000), related to Spanish wine legislation regarding designation of origin and 145/04 Spain v. UK (2006), related to the election of the representatives of the European Parliament by direct universal suffrage.
In light of the above, it is expected that a successful action made by the political intimidation imposed by the Article 226 or 227 will end up with the MS complying with its duties under Community law. Conversely, sometimes it is necessary to use the fines system of the Article 228 EC to guarantee that the Member States will not ignore the Commission and continue to act in breach of EU law. Under this Article, ‘the Member State must take “the necessary measures to comply with the judgement of ECJ”. Though, this remedy is not completely satisfactory as ECJ case law has shown that there is neither time limit for the Member State to comply with the obligation nor that the action has to be taken instantly like in Case 291/93 Commission v. Italy (1994) ‘. The fines should be based on the gravity, duration of the breach and financial capacity of the Member State and the amount can be quite considerable. The ECJ has started using its power under Article 228 in Case 387/97 Commission v. Greece (2000), and went to a very hostile way in Case 304/02 Commission v. France (2005), applying both penalty payment and lump sum fine.
The case law has shown that the ECJ has been extremely concerned to the commitment of Member States under Article 226 and started to employ the Article 228 to enforce Community law in an ostensive way. Consequently, Member States have the responsibility to give effect to the ECJ’s judgement as it has force judicata and the “judgment may constitute the basis for State Liability”. The Treaty of Lisbon brings amendments to the Article 228, extending the infraction procedures to the 3rd pillar and empowering the ECJ to use the Article 226 in cases of non-notification of transposition measures in directive cases. However, we can not deny the fact that the infraction procedures can take too long – like in Commission v. France (2006), which lasted 21 years – to come to an end. For that reason, it is necessary sometimes to take actions to reach a temporary solution while the case is still pending, using the Articles 242 and 243 to suspend Member States’ national legislation incoherent with EU law and to have an action of ECJ protecting individuals interests.
Taking everything into account, including the criticism about the deficiency of the enforcement procedure, the uninterested approach under the Commission’s discretion together with it’s arbitrary, selective, sometimes unfair, oppressive and specially slow or lenient position as the guardian of the treaty, it is unquestionable the fact that the infraction procedures has faced a positive development over the years due to the work of the ECJ, bringing more effectiveness to Community law and protection to the primacy of the Community interest.
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