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Proceedings for failure to fulfil an obligation

Proceedings for failure to fulfil an obligation are one of the actions which may be brought before the Court of Justice of the European Union (CJEU). They enable the Court of Justice to control Member States’ compliance with their obligations under European law.

Proceedings for failure to fulfil an obligation are legal proceedings brought before the Court of Justice of the European Union. These proceedings may be brought by the Commission or by a Member State against a Member State which has not complied with European Union (EU) law.

Proceedings for failure to fulfil an obligation are based on Articles 258 to 260 of the Treaty on the Functioning of the EU.

Nature of the failure

The failure can stem from instruments (laws, decrees, administrative decisions, etc.) or be the result of facts (administrative practices, etc.).

It can be the consequence of positive behaviour (actions) or negative behaviour (abstentions, omissions). Thus, actions can, for instance, consist of the adoption of a text contrary to European law or the express refusal to repeal a national measure that is contrary to European law. Abstentions or omissions can, for example, consist of delays in transposing a directive or failure by Member States to notify national implementing measures to the Commission.

The act must be attributable to the Member State. For this reason, the concept of State is interpreted broadly by the Court of Justice in that it may mean all of the State bodies such as the government, the parliament, federated entities or sub-national bodies, etc.

Procedure

Proceedings may be brought either by the Commission, which is most often the case in practice, or by a Member State:

  • when the Commission initiates proceedings, it must first address a reasoned opinion to the Member State which has not complied with Union law. If, after a certain period, the Member State has still not rectified its failure to fulfil its obligation, the Commission may then bring proceedings against the Member State before the Court of Justice;
  • when a Member State initiates proceedings, it must first bring the matter before the Commission. The Commission then delivers a reasoned opinion after having heard the arguments of the Member States concerned. The plaintiff Member State may then bring the matter before the Court of Justice.

Once the matter has been referred, if the Court of Justice finds that there has been a failure to fulfil an obligation, it shall deliver its first judgment which includes the measures to be adopted by the Member State in order to rectify the situation. Subsequently, if the Commission considers that the Member State has not taken the necessary measures, it shall bring the matter before the Court of Justice a second time. If the Court confirms that the Member State has not complied with its first judgment, it may then impose a fine on it.

The Treaty of Lisbon introduces specific proceedings for cases where a Member State does not communicate the measures for transposing a directive to the Commission. In such a case, the Court may impose a pecuniary penalty on the Member State concerned from the date of the first judgment on the failure to fulfil an obligation.

Allocation of jurisdiction between the Court of Justice and the General Court

Only the Court of Justice is competent to hear proceedings for failure to fulfil an obligation brought by a Member State or by the European Commission.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

Last updated: 08.10.2010

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