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Infringement procedures

The Commission, as “guardian of the Treaties”, ensures that all Member States fulfil the obligations imposed by Community Law. In this respect, infringement procedures play a crucial role in guaranteeing its effectiveness.

Infringement procedures may be initiated, whenever the Commission considers that a Member State has failed to implement EU law or has adopted a legislative measure or administrative practice incompatible with it.

Infringement procedures can be commenced by the sole Commission at its own initiative, following complaints from businesses or on basis of a questioning to the EU Parliament.

Over the past years, several procedures and other legal actions have been undertaken against Italy. However, the situation has considerably improved lately thanks to the commitment of a special Task Force established within the Department for European Policies with the double task of preventing new EU procedures and strengthening national efforts for the settlement of pending litigations.

Pre-litigation phase (Article 258 TFEU)

Where it detects a failure to comply with Community law, the Commission sends a letter of formal notice requesting further information to the country concerned, which must send a detailed reply within 2 months.

The legal action may be taken against any Member State as such, regardless of the infringer being a constitutional organism, a judicial authority, a local body or a private party. Where the Member State fails to respond to the request or where the observations submitted are considered insufficient, the Commission may issue a reasoned opinion where it formally states that the country is breaching the EU law. It also allows the Member State an additional period within which to comply. In case of persisting non-compliance, the Commission refers the matter to the EU Court of Justice under Article 259(2) TFEU.

The pre-litigation phase ends when the Commission officially takes the matter to the Court, which will then deliver a binding judgement.

Litigation phase (Article 258 TFEU)

In case of ascertained breaching of EU law by the Court, national authorities must take action to comply with the Court’s judgment and terminate the breach. If they do not so by modifying, withdrawing or introducing a provision, transposing a specific Directive or changing an administrative practice, the Commission may launch a new procedure under Article 260 TFEU. This new legal action must also go through the full pre-litigation and litigation process.

The Lisbon Treaty (1 December 2009) has introduced a reform of the infringement procedure. In particular, the process has been simplified for the cases of misapplication of EU legislation under Article 260(2) TFEU. This means that if a Member State fails to comply with a judgement of the EU Court of Justice in accordance with Article 258 TFEU and does not provide detailed observations in reply to the letter of formal notice, the Commission may ask the Court to impose financial penalties without launching a new infringement procedure.

The financial penalties consist of a lump sum and/or a periodic penalty payment, calculated taking into account the importance and persistence of the failure. As estimated by the Commission, the minimum lump sum paid so far by Italy accounts for € 8,916,000 while the daily penalties vary from  €10.753,50 to €645.210 daily. [1]

In its judgement of 12 July 2005 in case C-304/02, Commission vs. French Republic, the Court of Justice of the EU has clarified that the Commission can impose both the lump sum and the daily penalty upon a particularly serious and persistent breach of Community law.

The Lisbon Treaty has also made substantial changes to the financial penalties charged in case of inadequate transposition of EU Directives. For instance, if a Member State fails to communicate such transposition, under Article 260(3) TFEU the Commission may ask the Court to impose financial penalties within the same procedure for non-compliance without initiating new proceedings.

The College of European Commissioners is responsible for the opening, closure or aggravation of an infringement procedure, which are discussed in monthly sessions. The College may decide to close a procedure, when a Member State complies with the Commission’s requests or provides it with satisfactory observations. 

The closure of an infringement procedure is only stipulated during regular monthly sessions, while a procedure’s opening may be decided at any other session the College. For instance, infringement procedures for failure to transpose EU Directives are automatically opened at any of the first College meetings following the deadline for transposition into national law. Once the litigation phase is initiated, the Commission may decide to discontinue the ongoing procedure if it deems that the Member State concerned has rectified the violation of EU law. 

 

Note

[1] The lump sum is to be paid even if the violation has been rectified in the course of the trial, while the daily penalty is imposed only in case of persisting breach of EU law and is calculated on a daily basis from the date of the Court’s judgement.

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