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Explanation of European Commission infringement proceedings for non-compliance with Community law

Commission Européenne - MEMO/07/343   05/09/2007

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MEMO/07/343

Brussels, 5 September 2007

Explanation of European Commission infringement proceedings for non-compliance with Community law

Principles

Each Member State is responsible for the implementation of Community law within its own legal system. This involves the adoption of measures to transpose directives into national law, ensuring the conformity of national law with both the EC Treaty and regulations, directives and decisions adopted by the EU institutions and ensuring that the practice of administrative authorities applying the law conforms with its requirements.

Under the Treaties, the European Commission is responsible for ensuring that Community law is correctly applied. The Commission initiates whatever action it deems appropriate either following receipt of a complaint or following its own detection of an infringement, to investigate the issue. The Commission has the right to intercede with the Member State to try to bring the infringement to an end and, where necessary, may refer the case to the European Court of Justice. Only the Court can confirm the existence of an infringement of Community law by a Member State, issuing a declaration to that effect.

An infringement means failure by a Member State to fulfil an obligation under Community law. It may consist either of action or omission. It is the Member State which infringes Community law, irrespective of the authority - central, regional or local - to which the compliance is attributable within the legal system of the Member State concerned.

There are only two parties to an infringement procedure: the Commission and the Member State.

Complaints and infringement proceedings

Anyone may lodge a complaint with the Commission against a Member State for any measure or practice (law, regulation or administrative action) attributable to a Member State which is considered incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate that they have a legal interest in, or are principally and directly concerned by, the infringement. To be admissible, a complaint has to raise a possible infringement of Community law by a Member State. It cannot be anonymous or concern a private dispute.

The Commission is under no obligation to act in any specific way on a complaint. Its reaction depends on its evaluation of the issues involved. The European Court of Justice has ruled that: "The Commission's function, in the general interest of the Community, is to ensure that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end". The Court has also ruled that: "Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought." [1]

Rulings of the European Court also only declare the existence of an infringement by a Member State. They do not rule on the specific rights or claims of individual citizens or businesses. Such rights or claims can only be pursued by the individual concerned through proceedings before national tribunals. In the exercise of its authority to ensure the correct application of Community law, the Commission exercises a discretion, deciding when and how to act in the Community interest. The complainant is therefore not party to the infringement procedure – but the Commission has undertaken certain administrative commitments described in:

COMMISSION COMMUNICATION TO THE EUROPEAN PARLIAMENT AND THE EUROPEAN OMBUDSMAN ON RELATIONS WITH THE COMPLAINANT IN RESPECT OF INFRINGEMENTS OF COMMUNITY LAW [COM(2002) 141 final]

Stages of infringement proceedings

Infringement proceedings involve the following stages:

- Information gathering

In response to complaints, or after the Commission has otherwise become aware of potential violations of Community law, it may be necessary to gather further information to confirm the points of fact and law involved.

This may be done through further contacts with the complainant as well as with the Member State.

- Opening of an infringement procedure: formal contacts between the Commission and the Member State concerned

An infringement procedure involves action taken by the Commission against a Member State for failure to fulfil an obligation under Articles 226 and 228 of the Treaty establishing the European Community (the EC Treaty).

As the Court of Justice has repeatedly stated, “the purpose of the pre-litigation procedure provided for by Article 169 [today Article 226] ... is to give the Member State an opportunity, on the one hand, of remedying the position before the matter is brought before Court and, on the other hand, of putting forward its defence against the Commission’s complaints”.[2]

If the Commission considers that there may be an infringement of Community law which warrants the opening of an infringement procedure, it addresses a "letter of formal notice", which formally notifies the Member State of the issue of concern to the Commission, requesting it to submit its observations by a specified date. A deadline is set by the Commission for a response from the Member State – it is normally two months but may be one week or less. The Member State has to adopt a position on the points of fact and law communicated to it by the Commission.

In the light of the reply, or absence of a reply, from the Member State concerned, the Commission may decide to address a "reasoned opinion" to the Member State, clearly and definitively setting out the reasons why it considers there to have been an infringement of Community law and calling on the Member State to comply with the law within a specified period. The deadline for response is again set by the Commission and is normally two months but may be one week or less.

The purpose of these formal contacts, which are often accompanied by less formal exchanges of views, is to determine whether there is indeed an infringement of Community law and, if so, to resolve the case as soon as possible without having to take it to the Court of Justice.

In the light of the reply from the Member State, the Commission may also decide not to proceed with the infringement procedure. Most cases can be resolved either at the stage of the "letter of formal notice" or at the stage of the "reasoned opinion".

- Referral to the European Court of Justice

If the Member State fails to comply with the reasoned opinion, the Commission may decide to bring the case before the European Court of Justice.

At the close of the procedure, the Court delivers a judgment stating whether there has been an infringement. The Court of Justice can neither annul a national provision which is incompatible with Community law, nor force a national administration to respond to the request of an individual, nor order the Member State to pay damages to an individual adversely affected by an infringement of Community law.

It is up to the Member State against which the Court of Justice has given judgment to take the necessary measures, particularly to correct the infringement, normally through amendment of a law, regulation or administrative practice.

If the Member State does not comply with the first judgment, the Commission may again bring the matter back before the Court of Justice, after completing the same pre-litigation steps, this time acting under Article 228 of the EC Treaty. The purpose of this further phase in the infringement proceeding is to have financial sanctions imposed on the Member State. These sanctions take the form of periodic penalty payments imposed until such time as the Member State puts an end to the infringement and a lump sum payment for the period between the first and the second Court judgments.

RE-CAST COMMUNICATION OF THE COMMISSION ON THE APPLICATION OF ARTICLE 228 OF THE EC TREATY [SEC(2005)1658]


[1] (Judgment of 10 April 2003, Commission v. Germany (C-20/01 and C-28/01, Rec._p._I-3609) (cf. points 29-30); see also: Case 167/73 Commission v France [1974] ECR 359, paragraph 15; Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 21;; Case C-471/98 Commission v Belgium [2002] ECR I-9861, paragraph 39; and Case C-476/98 Commission v Germany [2002] ECR I-9855, paragraph 38).

[2] Case C-74/82 Commission v Ireland [1984] ECR 317, point 13 (31 January 1984); Case C-293/85 Commission v Belgium [1988] ECR 305, point 13 (2 February 1988); Case C-152/98 Commission v Netherlands [2001] ECR I-3463, point 23 (10 May 2001); Case C-439/99 Commission v Italy not yet reported, point 10 (15 January 2002).


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