Category Archives: breached Union law.

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.