EU law: Commission acts to ensure that European legislation is fully and properly implemented
European Commission - MEMO/11/824 24/11/2011
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Brussels, 24 November 2011
EU law: Commission acts to ensure that European legislation is fully and properly implemented
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 278 decisions, including 18 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 (where the Commission is requesting financial penalties). In another 6 cases, the Commission is referring Member States to the Court for failure to implement Directives within the deadline agreed by the EU's Council of Ministers and the European Parliament, and for the second time is using new powers under the Lisbon Treaty to request the Court to impose financial penalties the first time the case goes to Court.
Formal complaints to the Court of Justice (Article 258)
In accordance with the provisions of Article 258 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.
Free movement of goods (Greece): The European Commission has decided to request Greece to amend its current legislation on the minimum surface areas for the preparation of bakery products produced using the ‘bake‑off’ method. The ‘bake‑off’ method consists of quick thawing followed by re-heating or baking, at sales outlets, of fully or partially pre-baked and frozen products. Currently, Greek legislation requires minimum surface areas of at least 24.99m2 for the preparation of these products. The Commission considers these requirements do not take into account the specific nature of such products and their inherent attractiveness to be ‘completed’ by a short final baking also in very small premises. See IP/11/1415
Free movement of capital (Cyprus): The European Commission has referred Cyprus to the EU Court of Justice today for non-compliance with EU Treaty rules on the free movement of capital. These rules give EU nationals, as well as nationals of Iceland, Norway and Liechtenstein, the unrestricted right to buy a second home in Cyprus. Since the accession of Cyprus to the EU in 2004, transitional measures were in force that could restrict such acquisitions but these measures expired on 30 April 2009. As Cyprus has not yet repealed these measures, the Commission has decided to refer the case to the EU Court of Justice. See IP/11/1442
Free movement of capital (Italy): The European Commission has decided to refer Italy to the Court of Justice of the European Union because it considers that certain provisions of Italian law which grants the Italian State special powers in privatised companies operating in strategic sectors, such as telecommunications and energy, constitute unjustified restrictions on the free movement of capital and the right of establishment (Articles 63 and 49 TFEU). One or more of these special powers have been introduced in the statutes of ENEL, ENI, Telecom Italia and Finmeccanica. See IP/11/1443
Taxation (The Netherlands): The European Commission has decided to refer the Netherlands to the EU's Court of Justice for discriminatory rules on inheritance and gift duties. Under Dutch legislation, country estates located in the Netherlands are fully or partially exempt from succession and gift duties, while inheritance or gifts of country estates in other European Economic Area (EEA) States are taxed on 100% of their market value. The Commission already formally requested the Netherlands in September 2010 to ensure compliance with the EU rules. However, the Netherlands refused to change its law. See IP/11/1425
Taxation (Italy): The Commission has decided to refer Italy to the Court of Justice for the VAT exemption it grants to ships. Under the VAT Directive, a VAT exemption can be granted, subject to certain conditions, to supplies for fuelling and provisioning of vessels used on the high seas. A VAT exemption can also be granted for the supply, modification, repair, maintenance, chartering and hiring of such vessels. However, the exemption in the Italian legislation is not in line with what is allowed under the Directive. On the one hand it goes further than what is allowed, by granting a VAT exemption to commercial vessels not sailing on the high seas and vessels intended for public bodies. On the other hand, it excludes some services that should be covered by the exemption such as for example the loading and unloading of vessels sailing on the high seas. See IP/11/1426
EU gas market (Bulgaria/Romania): The best guarantee for ensuring security of supply and affordable energy prices is to have a competitive internal EU energy market. An efficient and properly functioning internal market in natural gas will give consumers the choice between different companies and help ensuring energy affordability. To allow this choice the EU legislation aims at facilitating cross-border gas trade and increasing the capacity of gas markets. The European Commission considers that Bulgaria and Romania are still not fully in line with EU gas market rules and has therefore decided today to take these countries to the EU Court of Justice. Cross-border trade can only happen if all market participants have equal access to gas transmission networks to supply customers. To guarantee this equal third party access it is important that maximum network capacity is being offered to the market. It is equally important that reliable and transparent information on the capacity of the network is provided to all market participants. See IP/11/1437
Energy performance of buildings (Spain): Buildings are responsible for around 40% of energy consumption and 36% of the CO2 emissions in the European Union. The European legislation aims to achieve a significant reduction in the energy consumption of buildings, thus helping to combat global warming and strengthen the EU’s energy security. Large energy savings will also enable households to drastically reduce their bills. It is therefore essential that Member States fully apply this legislation. See IP/11/1447
Environment (Poland): The Commission has also sent to Poland a reasoned opinion about inadequate action programmes for zones vulnerable to nitrate pollution. The Commission is of the opinion that Poland has not yet designated all the zones which are vulnerable to nitrates pollution. If Poland fails to comply within two months, the Commission may decide to refer the case to the Court of Justice of the European Union. See IP/11/1434
Rail transport (Germany): The European Commission has decided to refer Germany to the European Court of Justice for failure to implement common rules on achieving interoperability of European railways. The deadline for implementation was 19 July 2010. In accordance with the Lisbon Treaty, the Commission will ask the Court to impose a daily penalty payment on Germany until the adoption of national measures. See IP/11/1402
Air transport (Poland): The European Commission has decided to refer Poland to the European Union’s Court of Justice for failing to adopt transparent and non-discriminatory procedures for allocating air traffic rights. See IP/11/1406
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.
Free movement of capital (Germany): The Commission has decided to refer Germany back to the Court of Justice of the European Union for failing to fully comply with the Court's previous ruling on the Volkswagen law (VW law). In its 2007 ruling, the Court outlawed certain provisions of the 1960 law privatising Volkswagen. The Court found that the provisions in question granted unjustified special rights to German public authorities and that by maintaining them, Germany had failed to fulfil its obligations under the Treaty rules on the free movement of capital. Since Germany has failed to take all the necessary measures to fully comply with the Court's judgement, the Commission has now decided to bring the case before the Court again and will ask the Court to impose financial penalties on Germany of € 31 114.72 per day from the date of the initial Court ruling until Germany complies with the 2007 judgement or until the second Court ruling whichever comes first, as well as € 282 725.10 per day from the date of the second Court ruling until Germany has brought the Volkswagen law into line with EU rules. See IP/11/1444
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.
For the second time, the Commission has used this new possibility laid down in Article 260 (3) of the TFEU, and requested the Court, at the first referral, to impose a financial penalty on 3 Member States that have failed to implement Directives.
Marché public (Italie/Pologne): La Commission a décidé de saisir la Cour de justice contre l'Italie et la Pologne, au motif que ces Etats membres n'ont pas encore transposé des dispositions de la troisième directive sur les exigences de fonds propres, et de demander à la Cour de prononcer des astreintes à l’encontre de ces deux Etats membres. La date limite de transposition est arrivée à échéance le 1 er janvier 2011. La troisième directive sur les exigences de fonds propres porte sur les dispositions de la directive en matière des politiques de rémunération et sur d'autres ayant trait à la prorogation de certaines exigences minimales de fonds propres des établissements de crédit .La Commission a fait usage de la nouvelle possibilité offerte par le traité de Lisbonne de demander à la Cour dès sa première saisine d’imposer des astreintes journalières aux Etats membres qui n’auraient pas transposé intégralement la directive au jour de son arrêt constatant le manquement. Les astreintes financières demandées à la Cour s'élèvent à 96.446,70 € / jour pour l'Italie et à 37.396,80 € / jour pour la Pologne. See IP/11/1439
Environment (Poland): The European Commission is referring Poland to the Court of Justice of the European Union and asking for financial penalties to be imposed for two failures to transpose EU legislation into national law. Despite earlier warnings, Poland has failed to notify the Commission about the transposition of legislation on the Ambient Air Quality Directive, which should have been in place since 11 June 2010, and about a strategy to protect its seas, which should have been in place since 15 July 2010. The Commission is asking the Court to impose penalty payments. The penalty payments requested are 71,521€ per day for the Ambient Air Quality Directive, and 59,834€ per day in the case of the Marine Strategy Framework Directive. See IP/11/1434
Rail transport (Germany): The European Commission has decided to refer Germany to the European Court of Justice for failure to implement common rules on achieving interoperability of European railways. The deadline for implementation was 19 July 2010. In accordance with the Lisbon Treaty, the Commission will ask the Court to impose a daily penalty payment on Germany until the adoption of national measures. The penalty payments requested are 148,094€ per day. See IP/11/1402
Rail (Germany): The European Commission has decided to refer Germany to the European Union’s Court of Justice for failing to implement the last amendment to the Railway Safety directive. So far Germany has failed to bring its national legislation into line with this Directive although it was required to do so by 24 December 2010. Germany is not planning to adopt new implementing measures before 2012. In accordance with the Lisbon Treaty, the Commission will ask the Court to impose a daily penalty payment on Germany until the adoption of national measures. The penalty payments requested are 215,409€ per day. See IP/11/1413
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 around 95% 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 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: