Enforcement Action

Question: Art 258 Enforcement

• Article 258 (ex Article 226 TEC) identifies why enforcement of European Union law is necessary. It provides that if the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
• If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
• The wording provides the Commission with discretion whether to take a breach by a member State to the ECJ based on time for settlement negotiations.
• Also if breach minor may be appropriate not to move to next stage.
• The discretion enables account to be taken of political considerations.
• The enforcement process consists of few stages.
• Step (1) Informal discussions. The Commission asks the Member State to respond within a specified period and aims to conclude the stage within a year. The dispute is usually resolved by the Member State making the appropriate changes or by persuading the Commission that there is no breach.
• Step 2 Letter of Formal Notice for example, Commission v Italy Involved an alleged breach by Italy in failing to pay export rebates to its farmers. The letter of formal notice alleged breaches up to 1967 but failed to mention later breaches. When the matter came before the ECJ, it refused to consider the later alleged breaches.
• Step (3) reasoned opinion. This is a coherent statement of reasoning that explains why the Member State is at fault. It establishes the legal arguments against the State and must be as reasoned as possible. The Commission cannot add further grounds later. This stage provides a period of grace for the Member State, usually two months, however in urgent cases two weeks may be acceptable (Commission v Belgium [1986] ECR 1149). For example, Commission v Ireland [1984] ECR 314.
• Step (4) Case referred to the ECJ. The discretion of the Commission should be considered here. The Commission can bring an action any time after the time limit in the reasoned opinion has expired. For example, Commission v Germany [1994] ECR 2039. A delay of 2 years after the time limit expired did not render the action inadmissible.
• If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. As provided by Article 260 (ex Article 228 TEC)
• If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it
• For example, in the Commission v France Case C-304/02, France was ordered to pay lump sum fine of EUR 20m and a fine of EUR 57,761,250 for each 6 months the breach continued after July 2005. France had failed to comply With EU measures for fisheries conservation – it allowed undersized fish to be offered for sale. In the end France paid a total of EUR 77,761,250!
• Also potential defences should be addressed:
• Legislative difficulties- For example, Commission v Italy (1982)
• Reciprocity.
• Necessity, for example Commission v Italy (Re Ban on Pork Imports).
• Change in practice, for example Commission v France (Re French Merchant Seamen).
• Force Majeure, for example Commission v Italy (case 7/61).

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