Infringement procedure
The infringement procedure is a central instrument of Union law for ensuring that the Member States of the European Union (EU) comply with European law. The aim of the procedure is to ensure that Member States fulfill their obligations under the EU Treaties, secondary legislation, and the judgments of the European Court of Justice (ECJ). The infringement procedure is mainly governed by Articles 258 to 260 of the Treaty on the Functioning of the European Union (TFEU).
Legal basis of the infringement procedure
Article 258 TFEU – Initiation of proceedings by the Commission
According to Article 258 TFEU, the European Commission is empowered to initiate infringement proceedings against a Member State if it believes that the state has breached an obligation under European Union law. The Commission acts as the so-called ‘Guardian of the Treaties’ and plays a central role in this context. The procedure consists of several stages, allowing both the affected Member State to express its views and to seek an amicable solution.
Article 259 TFEU – Procedure upon request of another Member State
In addition to the Commission, Article 259 TFEU also allows a Member State to initiate infringement proceedings against another Member State if it believes that the latter is violating Union law. Before filing such an action, however, the Commission must be consulted and given the opportunity to provide an opinion.
Article 260 TFEU – Consequences of an established infringement
If a Member State fails to comply with a judgment of the Court of Justice, Article 260 TFEU provides for financial sanctions and further measures to ensure compliance with the Treaties.
Course of the infringement procedure
The infringement procedure generally goes through several phases, starting with a pre-litigation procedure and, if necessary, progressing to judicial proceedings before the European Court of Justice (ECJ).
Pre-litigation procedure (preliminary stage)
- Letter of formal notice:
The procedure begins with a letter of formal notice from the Commission to the Member State concerned. This letter specifically outlines the alleged breach and calls on the state to submit its comments on the matter within a set period.
- Reasoned Opinion:
If the Member State does not sufficiently refute the allegations, the Commission will issue a ‘reasoned opinion’. It establishes the violation of Union law and calls on the state to remedy the situation.
- Setting deadlines and opportunity for correction:
The Member State is given a deadline to cease the incriminated practice or to align national law with Union law.
Judicial procedure
If the Member State does not propose remedial measures or remains inactive, the Commission may refer the case to the Court of Justice of the European Union (ECJ) pursuant to Article 258 TFEU. The procedure is initiated with a statement of claim.
- Action before the ECJ:
The ECJ examines the facts, hears the parties, and decides whether an infringement has indeed occurred.
- Consequences of judgment:
If an infringement is established, the Member State is required to take the necessary measures to bring the infringement to an end. Moreover, the judgment is binding.
Proceedings in the event of continued infringement (Art. 260 TFEU)
If the Member State does not comply with the judgment of the Court, the Commission can bring a further action and apply for the imposition of penalty payments and/or lump sums. The amount of these sanctions depends on the seriousness and duration of the infringement as well as the state’s economic capacity.
Subject matter of infringement proceedings
Infringement proceedings can be initiated for a wide range of violations of Union law, for example:
- Failure to implement or late implementation of EU directives
- Application of national regulations that are not compatible with EU law
- Failure to fulfill obligations arising from EU regulations
- Breaches of the fundamental freedoms of the internal market
Significance of the infringement procedure
The infringement procedure ensures the uniform and effective functioning of the internal market as well as the preservation of the rule of law within the European Union. It protects the rights of Union citizens and companies and ensures the binding nature of Union law in all Member States.
Statistical developments and practical examples
The European Commission regularly publishes reports on pending and completed infringement proceedings. Typical areas of application include environmental law, tax law, consumer protection, and public procurement law. Prominent examples from the past include violations of air quality directives, failure to implement data protection rules, or the discriminatory application of national tax laws to cross-border situations.
Legal consequences of an established infringement
An infringement established by the ECJ obliges the Member State to take immediate remedial action. Furthermore, in case of repeated offenses, financial sanctions may be imposed, which may benefit the general EU budget. The Member State concerned is required to eliminate both the immediate circumstances of the infringement and any possible consequences.
Reforms and further developments
With the Treaty of Lisbon, the Commission’s arsenal for enforcing its judgments was expanded, allowing it to request financial sanctions already during the initial procedure, for example in cases of non-implementation of directives.
Relationship with other Union law instruments
The infringement procedure exists alongside other mechanisms, such as annulment actions (Art. 263 TFEU), actions for failure to act (Art. 265 TFEU), and preliminary ruling procedures (Art. 267 TFEU), but it serves exclusively to monitor Member States’ compliance with the Treaties.
The infringement procedure is a vital element for safeguarding the integrity of the European legal order. It not only guarantees the effectiveness of Union law but also the equality before the law of all citizens in the European internal market and the cohesion of the Member States within the framework of shared European values.
Frequently Asked Questions
Which bodies are involved in an infringement procedure?
Key institutions are involved in an infringement procedure in the legal context of the European Union. The procedure is generally initiated by the European Commission, which monitors Member States’ breaches of obligations under the EU Treaties. The Member States themselves are at the center as potential defendants. In the further course, the European Court of Justice (ECJ) can also be called upon as the decisive body if the State concerned does not remedy the identified violation. In exceptional cases, Member States can also sue other Member States for infringements, although this option is rarely used. All stages of the procedure are marked by specific deadlines and communication between the parties involved to give the affected party the opportunity to respond and take corrective action before a judicial decision is taken.
What phases does the infringement procedure go through?
The infringement procedure is divided into several clearly defined phases. In the first phase, the so-called pre-litigation procedure, the Commission informs the Member State of the suspected breach by means of a letter of formal notice and requests comments and, if necessary, remedial action. If these measures are not taken, the second phase follows, in which the Commission issues a reasoned opinion, setting a final deadline for compliance. If the Member State again fails to comply, the Commission initiates the third phase and brings an action before the European Court of Justice. The Court then examines the case and renders a judgment, which is binding on the State concerned. If the judgment is not implemented, a further action for the imposition of financial sanctions may follow.
What rights and obligations do affected Member States have in the procedure?
Member States affected by an infringement procedure have extensive rights of participation as well as obligations. They are entitled to submit written and, if necessary, oral statements regarding all allegations and measures. In all stages of the procedure, they can present their perspective, provide evidence, and respond to the Commission’s suggestions. On the duty side, the Member State is obliged to provide the Commission with all necessary information, actively assist in clarifying the facts, and, where appropriate, remedy the unlawful situation in a timely manner. If the State does not comply with a final judgment of the Court, the sanctions imposed in the judgment or in a further procedure must likewise be implemented.
What sanctions can be imposed in the context of an infringement procedure?
If the European Court of Justice finds an infringement and the Member State concerned does not remedy it within the prescribed period, the Commission can request a renewed review including financial sanctions. These sanctions can take the form of lump sums or penalty payments, the amount of which is determined by the seriousness and duration of the infringement as well as the Member State’s economic capacity. Such payments are intended to safeguard the effectiveness of Union law and act as a deterrent to other states. The obligation to pay ends as soon as the unlawful situation is remedied.
What are the consequences of a judgment of the European Court of Justice for national courts and national law?
A judgment of the European Court of Justice in the context of infringement proceedings is binding on the respective Member State. It obliges not only the government but also all authorities and courts of the country to remedy the violation and to avoid further infringements. National courts are required to apply Union law according to the interpretation of the Court and to decide in accordance with its rulings. If national law continues to conflict with Union law, national courts are called upon to disapply the national law or to ensure its lawful application.
Can a judgment in an infringement procedure be appealed?
Decisions of the European Court of Justice in infringement procedures are in principle final and cannot be challenged by ordinary legal means. However, in certain cases, an application for reopening the procedure may be lodged if new, relevant facts become known after the judgment that, if previously known, might have led to a different outcome. The legal requirements for such a reopening are, however, strict and must be interpreted narrowly. A regular appeal procedure is not provided for in infringement proceedings.
What special deadlines apply in infringement proceedings?
The procedure is governed by several sometimes strict deadlines, which significantly structure the duration and course of the proceedings. After receiving the Commission’s letter of formal notice, the Member State usually has two months to respond. Following a reasoned opinion, a further deadline may also be set, which is likewise generally two months. After the action has been brought before the European Court of Justice, the general time limits of the ECJ’s Rules of Procedure apply for submitting pleadings and other procedural acts. Compliance with these deadlines is essential to prevent delays and to ensure the effective implementation of Union law.
