Commission ensures proper implementation of the European legislation
The EU legislation clearly states that the Union laws –both primary and secondary- must be respected and implemented. The Commission makes monthly analysis of the member states’ state-of-art concerning implementation of the EU directives, mainly in line with their transposition’s deadline. Recent Commission analysis follows below with examples of formal complaints to the Court of Justice.
The newLisbon Treaty – as well as all previous treaties – gives the Commission powers totake legal action against a Member State that is not respecting its obligationsunder the EU law (art. 258 TFUE).
Theinfringement procedure begins with a request for information (a «Letter of Formal Notice») tothe member state concerned, which must be answered within a specified period, usually two-three months.
If theCommission is not satisfied with the information and concludes that a member statein question is failing to fulfill its obligations under the EU law, theCommission may then sends a formal request to comply with EU law (a «Reasoned Opinion»), calling on a memberstate to inform the Commission of the measures taken to comply within aspecified period, usually two months.
If a memberstate fails to ensure compliance with EU law, the Commission may then decide torefer such a state to the Court of Justice. However, in around 95% ofinfringement cases, member states comply with their obligations under EU lawbefore they are referred to the Court. If the Court rules against a member state,such a member state must then take the necessary measures to comply with thejudgment.
If,despite the ruling, a member state still fails to act, the Commission may opena further infringement case under Article 260 TFEU, with only one writtenwarning before referring such a state back to Court. In that case, theCommission can propose that the Court imposes financial penalties on a member stateconcerned based on the duration and severity of the infringement and the size/economicsituation of this state (both a lump sum depending on the time elapsed sincethe original Court ruling and a daily penalty payment for each day after asecond Court ruling until the infringement ends).
In specificcases when a member state fails to implement Directives withinthe deadline agreed by the EU’s Council of Ministers and the EuropeanParliament, the Commission may request the Court to impose a financial penaltyon a state concerned the first time the Court rules on such a case, rather thanwhen it is referred back for a second time. This possibility, introduced by theLisbon Treaty, has been laid down in Article 260 (3) TFEU.
The European Commission –in its monthly package of infringement decisions — is pursuing legal actionagainst the member states for failing to comply properly with their obligationsunder EU law. These decisions cover many sectors and they aim at ensuringproper application of EU law for the benefit of citizens and businesses.
Thus, in October 2011,the Commission has adopted 208 decisions(incl. 9 complaints) taking several EU member states before the European Union’sCourt of Justice. In this package, one decision relates to failure to respect aprevious Court ruling (where the Commission is requesting financial penalties).In another 3 cases, the Commission is referring member states to the Court forfailure to implement Directives within the deadline agreed by the EU’s Councilof Ministers and the European Parliament, and for the first time is using newpowers under the Lisbon Treaty to request the Court to impose financialpenalties (even with the first time that the case goes to Court).
In accordance with the LisbonTreaty provisions (art. 258 TFEU), the Commission has decided in October 2011 totake several member states to Court for failing to comply with their legalobligations under EU law. Before referring a state to the Court, the Commissionfirst requests information from the state concerned and then, if necessary,formally requests such state to comply with the EU law. Around 95% ofinfringement cases are resolved before they reach the Court.
- Free movement of workers (Italy): The Commissionhas decided to refer Italy to the Court because of discrimination againstnationals of other Member States as regards public sector jobs. In particular,legislation applicable in Italy’s province of Bolzano states that jobcandidates resident in the province of Bolzano for at least two years havepreference over other candidates in accessing posts in the province’s publicsector.
- Free movement of goods (Lithuania): TheCommission has decided to refer Lithuania to the Court because it maintainsobstacles to the registration of right-hand drive vehicles in Lithuania inbreach of EU rules on vehicle type-approval and on the free movement of goods.National legislation in Lithuania prohibits registration of new and used carswith right-hand drive. The Commission considers that these restrictionsconstitute a disproportionate barrier to importing such vehicles from other EU memberstates (e.g. by citizens returning to Lithuania after having worked in theUnited Kingdom or Ireland). In November 2010 the Commission requested theLithuanian authorities to put an end to these restrictions
- Taxation (Cyprus): The Commission has decided torefer Cyprus to the Court because its car taxation rules discriminate againstnon-Cypriot EU citizens who transfer a car into Cyprus. Under Cypriotlegislation, EU nationals who set up a permanent residence in Cyprus are onlyexempted from paying excise duty on a new imported car if they do not practicea profession in Cyprus. Such a condition does not apply to Cypriot citizens,nationals and descendants who return to live permanently in Cyprus.
- Taxation (Ireland): TheCommission has decided to refer Ireland to the Court for failing to correctlyimplement EU rules on excise duties on fuel. Until the end of 2006, Ireland wasallowed to apply an exemption on fuel used by disabled people for their motorvehicles. At the end of 2006 this derogation came to an end. However, Irelandcontinued applying this exemption. The Commission formally asked Ireland toremedy this breach of EU law in September 2008.
- Taxation (Spain): The European Commission hasdecided to refer Spain to the Court for discriminatory ruleson inheritance and gift tax that require non-residents to pay higher taxes than residents. Inheritance and gift tax in Spain are regulated at bothstate level and at the level of autonomous communities. The autonomouscommunities’ legislation grants residents a number of tax benefits that,in practice, allow them to pay much lower taxes than non-residents. TheCommission had already formally requested Spain on May 2010 and additionally on 17 February 2011 to take action to ensurecompliance with the EU rules in regard to inheritance and gift tax provisions. However, no amendments have been made to Spanish legislation on thematter.
When,despite a first ruling by the Court, a Member State still fails to act, theCommission warns the Member State in writing. In case of continued lack ofappropriate action by the Member State, the Commission may take the MemberState back to Court, and can request the Court to impose a lump sum penaltyand/or a daily penalty payment on the Member State concerned (the procedure isbased on art. 260 TFEU).
- Environment (Luxembourg): The Court previously ruled in November 2006 thatLuxembourg did not fulfill its obligation to treat and dispose of urban wastewater in an adequate manner. Nearly five years after the Court’s ruling, fouragglomerations in Luxembourg have not yet complied with the EU legislation,including that of the capital city. The Commission is therefore referring Luxembourg back to the EU Court of Justice and asking theCourt to impose a lump-sum fine of ?1 248 per day (until the violation isterminated) and a daily penalty payment of ?11 340.
The Commission has alsoadopted decisions to request Member States to adopt implementing measures forDirectives where the deadline has already passed and warned Member States thatif they fail to do so they may not only be referred to the Court but also thatthe Commission intends to request the Court to impose a financial penalty onthe 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 referredto the Court, to impose financial penalties in cases where Member States havefailed to implement Directives within the deadline agreed by the EU’s Councilof Ministers and the European Parliament.
For the first time, theCommission has used this new possibility laid down in Article 260 (3) of theTFEU, and requested the Court, at the first referral, to impose a financialpenalty on 3 Member States that have failed to implement Directives.
- Services Directive (Austria, Germany and Greece). The Commission adopted decisions torefer these countries to the Court for a partial failure to impose ServicesDirective
TheDirective was adopted in December 2006 and deadline for its imposition in themember states was 28 December 2009.
In October2011- about 22 months after the deadline — these states did not react; hencethe Commission suggested and the Court decided to impose the following fines: ? 44 876,16 for Austria, ?141362,55 for Germany and ? 51 200,10 for Greece.
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