Enforcement Action
The Treaty of the European Union, as amended by the Lisbon Treaty, inter alia includes
mechanisms through which enforcement actions may be instituted. Specifically, we are
hereby making reference to article 258 and 259 of the Treaty of the Functioning of the
European Union, whereas, the former grants authority to the Commission to institute
proceedings against a Member State, article 259 grants authority to individual Member
States to institute an action against another Member State.
The Commission initiates proceedings either in response to a complaint by a Member
State (A.259), or in response from an individual, or on its own initiative. The
Commission does not have its investigative service, and as such citizens constitute a
significant source for the detection of infringements. However, it is to note that the
enforcement procedure is not primary intended to provide individuals with a means of
redress, but it is an objective mechanism for ensuring State compliance with EU Law.
It is also important to note that, the individual is not a party to the proceedings,
concerning failure to fulfill obligations, and for that reason, individuals cannot invoke
rights of fair hearing involving application of the audi alteram partem principle. This
does not apply to article 259, whereby the Member State bringing an action, is a party to
the action and as such, the audi alteram partem principle is to be upheld vis-à-vis the
Member State bringing the action, and the defendant Member State.
The infringement procedure can be divided into four distinct stages: The Negotiation
Stage, at the initial pre-contentious stage gives the Member State the occasion to explain
its position and the opportunity to reach an accommodation within the Commission. If
the matter is not clarified or resolved informally between the two at this stage, the State
will be formally notified of the specific infringement alleged by means of letter from the
Commission.
The State is normally given two months to reply, except in urgent cases. If after the
negotiation stage with the State, the matter has not been resolved, the Commission may
proceed to the stage of issuing a Reasoned Opinion which sets out clearly the ground on
which the alleged infringement rests. The last stage is the Referral by the Commission to
the ECJ.
The aforementioned stages were clearly adhered to in the ECJ case C76/08 Commission
vs. Malta. The first written warning by the Commission was published on the 4th July
2006. Following the unsatisfactory reply, the Commission issued a reasoned opinion on
the 23rd October 2007, with Malta replying on the 31st December 2007. the referral to the
ECJ was made on the 21st February 2008, with the ECJ judgement being delivered on the
10th September 2009.
The procedure of article 258 has been criticized, primarily due to the fact that, the
Commission has neither the time nor the resources to detect and pursue every instance of
national infringement of EU Law. Moreover, it was held that there are pragmatic and
political reasons why the Commission might wish to exercise political discretion and not
to pursue to judgement for every Member State breach.
PAGE 1
