Monthly Archives: November 2017

ART 258-260: ENFORCEMENT ACTIONS AGAINST MEMBER STATES

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    • Basically, where MS has breached Union law. Proceedings can be brought by Comm or other MS, but NOT individual – indiv claim limited to state liability. Aim is to obtain declaration by ECJ that MS failed to fulfil Treaty obligations (declaratory judgment!)
    • Elements:
      1. MS in breach of EU law
      2. Decide if it’s Comm v MS or MS v MS
      3. If it’s Comm v MS: i) procedure administrative phase, judicial phase, ii) declaratory judgment, iii) penalties under art 260 TFEU.
      4. NB: MSs usually reluctant to bring case themselves – try to get Comm to take on issue instead, to avoid political ramifications.

 

  • Key provisions:

 

      • Art 17(1) TEU: gives Comm task of ensuring and overseeing application of EU law – monitor MS compliance.
      • Art 258 TFEU: general enforcement procedure
        • Elite diplomatic channel for amicable dispute resolution
        • Allow indivs to complaint to Comm about breaches of EU law
        • ‘objective’ law enforcement tool for Comm – Dentist Airdrie

 

  • Art 260 TFEU: Comm can request penalty payment if MS fails to comply with previous judgment under art 258 (increasingly used!)
  • 4 stages to the infringement procedure (administrative, then judicial):

 

      1. Pre-contentious stage: MS has chance to explain position, and reach agreement with Comm. Comm will start off negotiations with the MS’ Permanent Representative
      2. Formal notification: MS gets letter of formal notice from Comm, detailing specific infringement. Allows MS reasonable period to reply/submit observations.
      • ➔ possible further round of discussions
        1. Reasoned opinion: issued by Comm, to which MS must comply within reasonable time.

 

  • Referral: Comm refers matter to ECJ (has discretion whether to do so – no automatic transfer of jurisdiction to ECJ)
  • ➔ ECJ will give a declaratory judgment (whether MS breached law) – might prescribe interim relief under art 279.

 

    • NB: under art 259: MSs can initiate action against another – has to bring matter before Comm first (but doesn’t have to contact the other MS), and Comm will deliver reasoned opinion after both MSs have chance to make oral and written submission. Dentist Airdrie
    • ➔ but seems like complainant MS can bring case to ECJ even where Comm thinks there has not been a breach of EU law!
    • ➔ rarely used – political reasons. MSs can also intervene in cases brought by Comm.
      • In Spain v UK, 2000: Spain brought action against UK on UK’s extension of voting rights in EP elections to Gibraltar residents.
      • Hungary v Slovak Republic, 2012: Hungary’s president wanted to travel to village in Slovak, where statue of founding saint of Catholic Church of Hungary was to be unveiled. But visit planned to be on anniversary of Hungary taking over Czech Republic in 1968. Hence Slovak refused permission to enter. Hungary complained to Comm – Comm issued letter of formal notice to Slovak, but Comm didn’t really want to get involved in political issue.
        • Comm in reasoned opinion said it didn’t perceive potential violation of EU law. In any case, said it was justified.
        • Hungary brought case to ECJ. Slovak argued it was matter for public international law, cos talking about foreign head of state wanting to gain access for official reasons as head of state.
        • ECJ rejected this: scope of EU law is for EU to decide! Hungary does not have to pass any further admissibility hurdles. But eventually held Heads of States have to request official permission under public international law – host MS has to be aware and give consent cos of all the immunities etc.

ART 277: PLEA OF ILLEGALITY

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    • Used where A wishes to challenge, in the course of proceedings initiated for a different reason, the legality of some other measure. Latter measure being challenged indirectly must be a general act.
    • Eg. When challenging a decision of direct and indiv concern, A wishes to raise legality of the Reg on which the decision is based.
      • See Simmenthal for typical case
    • Same grounds of annulment as for annulment.
    • Hence NOT an independent course of action.
      • Time limit for principal action still applies!
      • Must have real connection between principal decision being challenged, and the general measure of which legality is being contested.
    • Cannot be used in proceedings before national court – only in proceedings brought before ECJ under some other Treaty provision (incidental + limited effect)
    • Can only be used to challenge acts of general application (usually Regs/directives made pursuant to arts 289 or 290 TFEU).
    • This is a test of substance! Simmenthal case, 1979:
      • A wanted to use plea of illegality to challenge certain Regs and notices, which formed legal basis of the contested decision.
      • ECJ held that art 277 expresses a general principle conferring upon a party to proceedings the right to challenge validity of previous acts which form the legal basis of the decision which is being attacked, if party was NOT entitled to bring direction action against those acts.
      • Hence, has to include acts which, though not being in form of Reg, still produce similar effects and hence cannot be challenged via direct action (too general) – need a wide interpretation of the plea of illegality!
      • Who can use the provision?
        • Available to private parties, UNLESS it is clear that act could have been challenged directly under art 263 (where there was indiv + direct concern).
        • Greater controversy over privileged applicants – Manchester Taxi
          • [Bebr]: NO, since privileged applicants can challenge any binding EU act under art 263, subject to time limit.
          • [Barav]: YES. Irregularities in general act might appear only after relevant implementation measures are adopted, hence after the time limit.
          • ECJ decided that MS can invoke use art 277 even if it did not contest measure within art 263’s time limit (hence agreeing with Barav)
            • Textual analysis: art 277 refers to “any party”
            • There may be good reasons why MSs did not challenge act directly within time limit!