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What is an infringement procedure

Infringement proceedings are an essencial tool for ensuring Member States to comply effectively with EU law.

The Commission has the option to commence infringement proceeding exercising a discretionary power and upon complaints from private individuals, on basis of a parliamentary question or even on its own initiative.

Pre-litigation (Article 258 of the TFEU)

When the European Commission considers that a Member State has breached community law, it sends a "letter of formal notice", allowing the Member State to present its views on the issue within two months. The alleged infringement may consist in the non-implementation of a European regulation or in the adoption of a national provision or administrative practice that is inconsistent therewith.

Infringement proceedings hit Member States as such, irrespective of whether the infringer is a constitutional body, a court, a territorial entity or a state-controlled private law entity. If the Member State fails to reply to the letter of formal notice within the required deadline or provides the Commission with an unsatisfactory reply, the Commission may send a reasoned opinion, explaining the reasons for which it considers that the Member States is breaching community law and requisting the the Member State to take steps for measures within a specified period.

If the Member State still fails to comply, the Commission may refer the matter to the Court of Justice of the European Communities (Article 258 of the Treaty on the Functioning of the European Union, paragraph 2).

This step puts an end to the "pre-litigation" phase and starts the judicial phase where the Court is called upon to evaluate if, in fact, the Member State has failed to fulfil one of the obligations imposed by the EU and declare the infingement.


Litigation (Article 260 of the TFEU)

If the Court of Justice assesses that a Member State has failed to fulfil an obligation under the Treaty, it requests to take the necessary measures to comply and bring the infringement to an end.

If the Commission considers that the Member State is noto compliant with the Court's decision, it take steps for 
proceedings under Article 260 of the Treaty. At this stage, the non-compliant Member State is charged with a further, independent failure to fulfil its obligations, that is failure to take the measures necessary to comply with the Court's decision declaring the infringement of EU law (e.g., amendment, repeal or introduction of a legal provision; transposition of a directive; change in administrative practice).

As in ordinary infringement proceedings, the procedure pursuant to Article 260 consists of two stages: pre-litigation and litigation.

With the entry into force of the Treaty of Lisbon on 1 December 2009, the regulation on infringement procedures has undergone major changes. In cases of misapplication of EU law, the main novelty consists of the introduction of a fast-track infringement procedure under Article
260, paragraph 2 of the Treaty on the Functioning of the European Union (TFEU), which is a simplified system in comparison to that envisaged by the previous Article 228, paragraphs 2 and 3 of the Treaty establishing the European Community.

Indeed, if a Member State does not comply with a a Court's decision of failure to fulfil its obligations under Article 258 of the TFEU and does not provide comprehensive justification in response to the "letter of formal notice", the Commission may refer the case to the Court of Justice and request payment of a financial penalty without undertaking a new "pre-litigation" phase.


Sanctions

Financial sanctions consist of a lump sum and a daily penalty payment appropriate to the seriousness and persistence of the breach. The figures established by the Commission for Italy, until the recent modification in the calculation method (more detailed financial penalties), amounted to a minimum of €8,651,000 for the lump sum and ranged from €10,753.5 to €645,210 per day for the penalty payment.

In its judgement dated 12 July 2005 (Case C-304/02, Commission c. France), the Court of Justice clarified that where the infringement of EU law is particularly serious and persistent, both the lump sum and the daily penalty payment may be imposed.

By Communication 2019/C 70/01 on the "Change in the method for calculating lump sums and daily penalty payments at the European Union Court of Justice", the Commission has introduced a new calculation method, which entered into force on 25 February 2019.

Comparing the results of the new method with the previous ones, Italy is attribuited 2.93 factor against the previous 15.16 factor.

The minimum lump sum for Italy decreases from €8,651.00 to €7,524.00.

The maximum lump sum decreases from €66,704 per day to €60,651 per day.

A second important change introduced by the Treaty of Lisbon relates to financial penalties in cases of failure to transpose European directives. Where a Member State has failed to fulfil its obligation to report to the Commission the measures taken to transpose a directive, the Commission may, within the same action for failure to fulfil obligations, request the Court to impose a financial penalty. Actually, with the new procedure set out in Article 260, paragraph 3 of the TFEU, the Commission may request the Court at the same time both to establish that an obligation has been breached and impose on the non-compliant Member State a financial sanction, without going through a further pre-litigation phase. 


College of Commissioners

Decisions on the opening, aggravation or closure of an infringement procedure are taken by the College of European Commissioners, in monthly sessions.

The College of Commissioners closes the file when the Member State complies with the European Commission's observations or when the Commission is satisfied with the observations provided by the Member State.

The filings only take place at monthly meetings, whilst the opening of an infringement procedure can also be decided upon at any other meeting of the College.

For example, procedures for failure to transpose directives are opened automatically at the first meeting following expiration of the transposition deadline.

Once the litigation phase has been opened, compliance by the Member State may lead to a waiver of the Commission's right to take legal action for missing interest.

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