On a monthly basis, the European Commission reviews the member states’ legal implementation process. In the infringement decisions, the Commission is pursuing legal action against EU-27 member states, mainly for failing to comply properly with their obligations under EU law. In an infringement package the overview of current member states’ position in implementation is presented.

The implementation decisions cover many economic sectors. Thus, the infringement package for January (issued in February) is aimed at ensuring proper application of EU law for the benefit of citizens and businesses. In January-February 2011, the Commission has taken 176 decisions, including 7 complaints taking member states before the European Union’s Court of Justice. In this package, one decision is related to a failure to respect a previous Court ruling and might imply financial penalties (1).

The EU law: implemented and observed

The legal implementation in the EU has two “images”: it is the task of the Commission to ensure that European legislation is fully and properly implemented, whereas the Court of Justice “shall ensure that in the interpretation and application of the Treaties the law is observed” (art.19 TEU). Actually, the Treaty describes the Commission’s “legislative competence” in the following way: “it shall oversee the application of Union law under the control of the Court of Justice of the EU; it shall ensure the application of the Treaties” (art.17 TEU).

Failure to respect deadlines for implementing Directives

For the first time, the Commission has adopted 3 decisions to request Member States to adopt implementing measures for Directives where the deadline has already passed and warned Member States that if they fail to do so they may not only be referred to the Court but also that the Commission intends to request the Court to impose a financial penalty on the Member State concerned. Since the entry into force of the Lisbon Treaty, the Commission may now request the Court, the first time the case is referred to the Court, to impose financial penalties in cases where Member States have failed to implement Directives within the deadline agreed by the EU’s Council of Ministers and the European Parliament.

Formal complaints before the Court of Justice

In accordance with the provisions of the Treaty on the Functioning of the European Union (TFEU), the Commission has decided in the February package to take several member states to Court for failing to comply with their legal obligations under EU law (art. 258 TFEU) . Before referring a member state to the Court, the Commission has two possibilities:

• First, it can request detailed information on the issue from a member state concerned, and

• Second, if necessary, it formally requests the member state to comply with EU law.

Quite notable, that around 95 per cent of infringement cases is resolved before they reach the Court.

Table. Infringement package: an overview (January-February, 2011)

	EMPL	ENV	JUST	MARKT	MOVE	SANCO	TAXUD
Austria		IP/11/ 163	IP/11/ 191
Belgium	IP/11/ 165	IP/11/ 172					IP/11/ 159
Cyprus				IP/11/ 182	IP/11/ 186
Czech Republic		IP/11/ 163
France							IP/11/ 160
Greece		IP/11/ 166		IP/11/ 179 IP/11/ 180			IP/11/ 161
Hungary			IP/11/ 191
Ireland		IP/11/ 168			IP/11/ 186
Italy	IP/11/ 167			IP/11/ 175
Latvia		IP/11/ 169
Malta					IP/11/ 188
Netherlands		IP/11/ 170
Poland		IP/11/ 171 IP/11/ 172 IP/11/ 173 IP/11/ 174			IP/11/ 186 IP/11/ 187
Portugal					IP/11/ 186
Slovakia		IP/11/ 176 IP/11/ 177			IP/11/ 186
Slovenia				IP/11/ 181
Spain	IP/11/ 189				IP/11/ 186	IP/11/ 184	IP/11/ 162
Sweden				IP/11/ 183
United Kingdom	IP/11/ 164						IP/11/ 158

Note: As is seen from the table, 19 member states were charged with violations of the EU law, which accounts for a total 39 “cases”. The highest number of infringements has been noticed in Poland – 6, followed by Spain and Greece – both with 4, and Slovakia and Belgium with 3 each (2).

Some examples of infringements during last two months

1. Free movement of capital (Greece): The Commission has decided to refer Greece to the EU Court of Justice for maintaining investment restrictions in breach of EU rules on the free movement of capital. The Commission considers that investment restrictions in so-called ‘strategic companies’ impose disproportionate caps on a person’s ability to acquire shares above a certain threshold. The Commission sent a «reasoned opinion» to Greece in November 2008 asking it to comply with EU law. However, the Greek authorities have failed to either repeal or amend the contested law (3).

2. Insurance (Slovenia): The Commission has decided to refer Slovenia to the Court of Justice because its rules on complementary health insurance do not fully comply with EU non-life insurance Directives and EU rules on the free movement of capital and the freedom to provide services. The Commission considers that Slovenia’s current rules may lead to distortions in the Single Market for insurance and less choice for Slovenian consumers. The Commission sent a reasoned opinion to Slovenia in September 2010, requesting the Slovenian authorities to comply with EU law. However, the legislation in question has not been amended to make it comply with EU law (4).

3. Coordination of social security (Belgium): Several non-Belgian European citizens who worked in the Belgian Congo or Ruanda-Urundi and contributed to the Belgian social security system do not enjoy the same social rights as their Belgian colleagues. On the basis of their complaints, the Commission has acted to enforce compliance with the principle of non-discrimination between European citizens in line with the Treaty and European legislation. Following a supplementary reasoned opinion sent to the Belgian authorities in 2010, the Commission has decided to take Belgium to the Court of Justice (5).

Social security coordination (Spain): The Commission has decided to take Spain to the European Court of Justice for refusing EU pensioners access to free medication while temporarily residing in Spain. Further to receiving Spain’s reply to the Commission’s reasoned opinion, the Commission takes the view that Spanish rules are not in line with EU law as they discriminate against pensioners from other EU Member States (6).

Environment (Poland): The Commission is taking Poland to the European Court of Justice for its failure to properly implement EU nature protection law. The Commission has concerns about several shortcomings in the transposition of EU law on the conservation of wild birds at national level. Europe’s birds are protected by the Birds Directive, a key piece of environmental legislation (7).

Environment (Slovakia): The Commission is taking Slovakia to the European Court of Justice for failing to comply with EU rules to ensure that landfills do not significantly damage the environment. The case against Slovakia concerns the landfill site in Povazsky Chlmec, near Zilina, which is not in line with European directive on landfill waste (8).

Air transport (Malta): The Commission has decided to refer Malta to the European Court of Justice for incorrect application of the rules on airport ground handling. The Commission is concerned that incorrect application of the rules results in a lack of effective competition for the supply of fuel at the airport of Luqa-Malta, possibly leading to additional costs to airlines and, ultimately, passengers. Following the reasoned opinion sent in June 2010, the Commission considers that Malta has not yet complied with its legal obligations and has decided to take Malta to the Court of Justice (9).

Enforcing Court rulings

When, despite a first ruling by the Court, a member state still fails to act, the Commission warns the Member State in writing. In case of continued lack of appropriate action by the member state, the Commission may take the member state back to Court, and can request the Court to impose a lump sum penalty and/or a daily penalty payment on the member state concerned. This procedure is based on Article 260 TFEU.

Environment (Ireland): The Commission is taking Ireland back to the European Court of Justice for failing to implement an earlier ruling concerning developments that may harm the natural and man-made heritage of the countryside. Two years after the judgment, Ireland has still not adopted legislation to address the issue. The Commission is referring the case back to Court and asking for a lump-sum fine of more than € 4 000 per day and a penalty payment of nearly € 33 000 to be imposed (10).

Recapitulation: Legal process according to the Lisbon Treaty

Article 258 TFUE gives the Commission the power to take legal action against a member state that is not respecting its obligations under the EU law. The infringement procedure begins with a request for information (called a «Letter of Formal Notice») to the member state concerned, which must be answered within a specified period, usually two months.

If the Commission is not satisfied with the information and concludes that the member state in question is failing to fulfill its obligations under the EU law, the Commission may then send a formal request to comply with EU law (so-called «Reasoned Opinion»), calling on the member state to inform the Commission of the measures taken to comply within a specified period; the period is usually about two months.

If a Member State fails to ensure compliance with EU law, the Commission may then decide to refer the Member State to the Court of Justice. However, in over 90% of infringement cases, member states comply with their obligations under EU law before they are referred to the Court. If the Court rules against a member state, the latter must then take the necessary measures to comply with the judgment.

If, despite the ruling, a member state still fails to act, the Commission may open a further infringement case. The procedure is regulated by the art. 260 TFEU, with only one written warning before referring the member state back to Court. If the Commission does refer a member state back to Court, it can propose that the Court imposes financial penalties on the member state concerned based on the duration and severity of the infringement and the size of the member state (both a lump sum depending on the time elapsed since the original Court ruling and a daily penalty payment for each day after a second Court ruling until the infringement ends).

In the specific case of a member state that has failed to implement a Directive within the deadline agreed by the EU’s Council of Ministers and the European Parliament, the Commission may request the Court to impose a financial penalty on a member state concerned the first time the Court rules on such a case, rather than when it is referred back for a second time. This possibility, introduced by the Lisbon Treaty, is laid down in Article 260 (3) TFEU.

Eugene ETERIS, European Correspondent, February 2011

References

1. See: Memo/11/86, Brussels, 16 February 2011.

2. The table is taken from the website on general statistics on infringements:

http://ec.europa.eu/community_law/infringements/infringements_en.htm

3. For free movement of capital see:

http://ec.europa.eu/internal_market/capital/index_en.htm

4. See: Insurance website on:

http://ec.europa.eu/internal_market/insurance/index_en.htm

5. For more information on the coordination of social security:

http://ec.europa.eu/social/main.jsp?langId=en&catId=26

6. See Commission’s website on employment, social affairs and inclusion: