marcus cleaver
This all relates to TFEU
what are the advantages and disadvantages of the coursework
EU calls this infringement procedure
what is the purpose of these articles?
it must be enforceable — anything in law must be
same for criminal
TEU article 4 (3) ”member states shall take any appropriate measures …. to ensure the fulfilment of obligattions arising out of the treaties.”
these articles in TFEU are about that
the purpose is to make contracts enforceable.
article 258 – commission brings enforcement against a state
article 259 – where a member state brings and enforcement action
article 260 article – addenda to the foregoing. fines system
gives procedure teeth.
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informal inquiry starts procedure
we think you have breached EU law. Can we sort this out and reach an amicable conclusion? Can be resolved without a court action. 95% of cases are solved at this stage
saves money
does not waste time by going to court and involving lawyers and judges
sometimes that is impossible
then a letter is sent to the member state and the state is accused and told to sort it out
member state can admit it or dispute it
the member state must respond within 2 months
the reasoned opinion is thhe next stage. sets out legal and factual basis for case
commission takes into account the accusation and then the response
commission tries to come to a coonclusion about whether there has been a breach and if so what it was
that is th
judicial procedure is under article 260
onus of proof is on commission not defendant
defences mounted by member states tend not to work
article 258 — court issues a judgement
only 2 article 259 cases ever. these call fall out between countries
France banned British beef. UK brought a case against France
commission tends to take over article 259 cases. countries sometimes start cases and then commission takes over
complaint by member states.
reply from respondent
defending member states’ submission is seen by commission. commission might issue a reasoned opinion or not
a decision will be reached
if there has been a breach of EU law.
article 260 fine on a state in breach
no reasoned opinion as per article 258
potential response from a member state within 2 months
ECJ hears the case
the state has breached EU law. the question for the court is the amount of the fine
court can issue a penalty payment or impose a lump sum
take into account basic rate . 670 Euros. multiplied by severity of infringement
multiply it by up to 20
multiply by duration of the breach between 1 and 3
then multiplied by anything between 0.35 and 21 – based on GDP
Population is also taken into account. UK’s N factor is 19
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ADVANTAGES
most cases are resolved informally
fast
fines act as a deterrent
articles 278, article 279 complement the process
what are the alternatives to articles 258 and 259
individuals can make complaints
countries negotiate with EU as to how they shall implement EU law
procedure ends up with ECJ making a judgment
fine system is effectual
article 278 and 279 are interim procedures
if a case takes a long time to go to court – these articles suspend the law while the case is sub judice
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DISADVANTAGES
defences seldom work
defence that works – there has been no breach
Re Tacographs. Commission v UK. this was due to strikes. It was beyond government’s control. the UK Goverment was still found guilty
individuals are excluded but may be able to use direct effect
commission has limited resources
van Gend en Loos 1963
commission also has much discretion on proceding to the judicial stage
after reasoned opinion the commission can discontinue the case. if they lack resources or think the breach is minor
they can choose not to investigate. Staff route case
the commission is not obliged to investigate
commission v France. 1971. commission left it a long time before pursuing it
Commission v Netherlands 1991. if commission leaves it too long then it is unfair to prosecute
look at resources . The Enforcement of EU Law. (2012). OUP. Stine Anderson
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