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memo/11/220

Brussels, 6 April 2011

EU law: Commission acts to ensure that European legislation is fully and properly implemented

Infringement package: overview of press releases

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EMPL

ENER

ENV

HOME

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JUST

MARKT

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TAXUD

Austria

433

431

Belgium

419

434

435

438

421

422

423

425

427

Bulgaria

424

Cyprus

440

415

416

426

Czech Republic

424

431

Denmark

438

431

Estonia

440

Finland

431

France

436

Germany

440

420

407

428

Greece

438

Hungary

437

Ireland

436

Italy

414

411

408

431

Latvia

412

Netherlands

429

Poland

440

414

431

Portugal

438

431

Romania

414

435

Slovenia

431

Spain

432

430

Sweden

409

417

United Kingdom

439

In its monthly package of infringement decisions, the European Commission is pursuing legal action against 27 Member States for failing to comply properly with their obligations under EU law. These decisions cover many sectors. They aim at ensuring proper application of EU law for the benefit of citizens and businesses. The Commission has taken today 255 decisions, including 11 complaints taking Member States before the European Union's Court of Justice. In this package, 1 decision relates to failure to respect a previous Court ruling and might imply financial penalties.

Failure to respect deadlines for implementing Directives

The Commission has also adopted decisions to request Member States to adopt implementing measures for Directives where the deadline has already passed and warned Member States that if they fail to do so they may not only be referred to the Court but also that the Commission intends to request the Court to impose a financial penalty on the Member State concerned. Since the entry into force of the Lisbon Treaty, the Commission may now request the Court, the first time the case is referred to the Court, to impose financial penalties in cases where Member States have failed to implement Directives within the deadline agreed by the EU's Council of Ministers and the European Parliament.

Formal complaints before the Court of Justice (Art 258)

In accordance with the provisions of the Treaty on the Functioning of the European Union (TFEU), the Commission has decided today to take several Member States to Court for failing to comply with their legal obligations under EU law. Before referring a Member State to the Court, the Commission first requests information from the Member State concerned and then, if necessary, formally requests the Member State to comply with EU law. Around 95% of infringement cases are resolved before they reach the Court.

Taxation (The Netherlands): The Commission has decided to refer The Netherlands to the EU's Court of Justice because its tax treatment of gifts to charities is discriminatory and in breach of EU rules on the free movement of capital. Dutch tax relief for gifts to charities applies only to donations made to charities established or registered in The Netherlands and not donations to foreign charities. See IP/11/429

Taxation (Belgium): The Commission has formally requested Belgium to amend its rules concerning the taxation of capital gains because they discriminate against assets outside Belgium and so breach basic EU Single Market rules (freedom of establishment, freedom to provide services and free movement of capital). The Commission's request takes the form of a "Reasoned Opinion". In the absence of a satisfactory response within two months, the Commission may refer Belgium to the EU's Court of Justice. See IP/11/421

Taxation (Belgium): The Commission has decided to refer Belgium to the EU's Court of Justice because of its discriminatory taxation of foreign investment companies. Such discrimination is in breach of EU Single Market rules on the free movement of capital and freedom of establishment. Indeed, Belgian investment companies do not pay tax on their Belgian interest and dividend income, while their foreign equivalents are taxed. See IP/11/422

Employment Equality (Italy): The Commission has referred Italy to the EU's Court of Justice concerning the transposition of the European directive, which prohibits discrimination in employment on the grounds of religion or belief, disability, age and sexual orientation. See IP/11/408

Environment (Austria): The Commission is referring Austria to the EU Court of Justice over outdated permits for their industrial installations. Under European legislation, these should have been issued by October 2007. The Commission is therefore referring the case to the Court. Austria has two months to comply. See IP/11/433

Environment (Belgium): The Commission is taking Belgium to court for failing to comply with EU air quality limit values for airborne particles known as PM10. Belgium has so far failed to effectively tackle excess emissions of these particles in 8 zones across the country. The Commission has therefore decided to take Belgium to the EU Court of Justice. See IP/11/435

Environment (Belgium/ Denmark/ Greece/ Portugal): The Commission is taking Belgium, Denmark, Greece and Portugal to Court over their failure to comply with EU water legislation and submit plans for managing their river basins. These plans are essential for achieving the EU's objective of 'good status' for European waters by 2015 and should have been adopted by December 2009 at the latest. Delayed plans could mean a failure to deliver the water quality required. See IP/11/438

Environment (United Kingdom): The Commission is taking the UK to the EU Court of Justice over the high cost of challenges of decisions on the environment. Under EU law, the possibility of challenging decisions affecting the environment should be fair, equitable, timely and not prohibitively expensive. The Commission is concerned that the potentially high cost of losing legal actions is preventing NGOs and individuals in the UK from bringing cases in the first place. See IP/11/439

Enforcing Court rulings

When, despite a first ruling by the Court, a Member State still fails to act, the Commission warns the Member State in writing. In case of continued lack of appropriate action by the Member State, the Commission may take the Member State back to Court, and can request the Court to impose a lump sum penalty and/or a daily penalty payment on the Member State concerned. This procedure is based on Article 260 of the Treaty on the Functioning of the European Union.

Data retention (Sweden): Despite a first ruling by the European Court of Justice in early 2010, Sweden has not transposed the Data Retention Directive into national law. The directive makes it mandatory for telephone companies and Internet service providers to store telecommunications traffic and location data for law enforcement purposes. Three years and a half after the deadline for all Member States to transpose, Sweden's failure to do so is likely to have a negative effect on the internal market for electronic communications and on the ability of police and justice authorities to detect, investigate and prosecute serious crime. The Commission has decided to ask the Court to impose on Sweden a daily penalty payment of €40.947 for each day after the second Court ruling until the infringement ends and to impose a lump sum €9.597 per day for the period between the 2010 Court judgement and the second Court ruling. See IP/11/409

Background on legal process

Article 258 of the Treaty on the Functioning of the European Union (TFUE) gives the Commission the power to take legal action against a Member State that is not respecting its obligations under EU law.

The infringement procedure begins with a request for information (a "Letter of Formal Notice") to the Member State concerned, which must be answered within a specified period, usually two months.

If the Commission is not satisfied with the information and concludes that the Member State in question is failing to fulfil its obligations under EU law, the Commission may then send a formal request to comply with EU law (a "Reasoned Opinion"), calling on the Member State to inform the Commission of the measures taken to comply within a specified period, usually two months.

If a Member State fails to ensure compliance with EU law, the Commission may then decide to refer the Member State to the Court of Justice. However, in over 90% of infringement cases, Member States comply with their obligations under EU law before they are referred to the Court. If the Court rules against a Member State, the Member State must then take the necessary measures to comply with the judgment.

If, despite the ruling, a Member State still fails to act, the Commission may open a further infringement case under Article 260 of the TFEU, with only one written warning before referring the Member State back to Court. If the Commission does refer a Member State back to Court, it can propose that the Court imposes financial penalties on the Member State concerned based on the duration and severity of the infringement and the size of the Member State (both a lump sum depending on the time elapsed since the original Court ruling and a daily penalty payment for each day after a second Court ruling until the infringement ends).

In the specific case of Member States that have failed to implement Directives within the deadline agreed by the EU's Council of Ministers and the European Parliament, the Commission may request the Court to impose to impose a financial penalty on the Member State concerned the first time the Court rules on such a case, rather than when it is referred back for a second time. This possibility, introduced by the Lisbon Treaty, is laid down in Article 260 (3) of the TFEU.

For current statistics on infringements in general, see:

http://ec.europa.eu/community_law/infringements/infringements_en.htm


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