← The hardest concepts in European Union law
In one breath
The Commission, as guardian of the Treaties, may bring a Member State before the Court of Justice for failing to fulfil its obligations under Union law, after a pre-litigation stage in which the State may respond. If the State does not comply with the Court’s judgment, a second round can end in a lump sum or penalty payment.
The picture
The warning letters before the fine
A housing association finds that one of its tenants is breaking the lease by keeping the stairwell blocked. It does not go to court at once. It sends a letter saying what it thinks is wrong and inviting a reply. If the reply does not satisfy it, it sends a firmer letter setting out its reasons and a deadline. Only then does it go to the tribunal, and the tribunal can declare the tenant in breach.
If the tenant still leaves the stairwell blocked after the ruling, the association may return to the tribunal and ask for a fine, either a one-off sum or a sum for each day of delay. The Treaty procedure runs in the same stages: a letter of formal notice, a reasoned opinion, a case before the Court, and, if the judgment is ignored, a second case asking for financial penalties.
Where the picture stops working
A housing association chooses its own tenants. The Commission has a discretion about whether to start and how far to go, and no individual can force it to bring a case, so complainants have no right to proceedings. The tenant is also one person, whereas the defendant here is the State as a whole: its legislature, its administration and even its courts, and it cannot excuse itself by pointing to its internal constitutional arrangements.
How it really works
- 1Know where the rule comes from. The procedure is set out in Articles 258 to 260 of the Treaty on the Functioning of the European Union. This is Treaty law.
- 2Letter of formal notice. The Commission, if it considers that a Member State has failed to fulfil an obligation, gives the State the opportunity to submit its observations.
- 3Reasoned opinion. If the State does not put matters right, the Commission delivers a reasoned opinion setting a period for compliance.
- 4Court proceedings. If the State does not comply within the period, the Commission may bring the matter before the Court of Justice. Another Member State may also bring a case (Article 259), though this is rare. The Court’s judgment declares whether the failure occurred.
- 5Penalties. If the State does not take the measures the judgment requires, the Commission may return to the Court and propose a lump sum or a penalty payment (Article 260). Where a State has failed to notify transposition measures for a directive, the Commission may propose a financial sanction at the first stage.
Why people get it wrong
- Thinking individuals can bring an infringement case. Only the Commission or another Member State can do so; individuals use national courts, a complaint or other remedies.
- Assuming the Commission must act on every complaint. It has a discretion.
- Blaming the government alone. The State is responsible for the acts of all its organs, including courts and regional authorities.
- Treating the first judgment as a fine. It is a declaration that the State failed to comply; money is only possible at the second stage, except in the case of non-notification of transposition.
- Believing that domestic difficulties are an excuse. A State cannot plead provisions or practices of its internal legal order to justify non-compliance.
A worked example
The facts are invented
A directive requires Member States to protect a certain type of wetland by a given date. A State passes a law that omits an important region. A conservation group complains to the Commission, which investigates and finds the omission real. It sends the State a letter of formal notice, and the State replies that its regional authority is responsible. That is not a defence, and the Commission moves to a reasoned opinion with a deadline.
The State amends the law for most of the region but leaves a stretch uncovered, so the Commission takes the case to the Court of Justice, which finds that the State has failed to fulfil its obligations. If the State then ignores the judgment, the Commission can bring a second case and ask for a daily penalty. The conservation group had no part in the proceedings except to complain, though it could also sue in national courts if the national law allows.
Try it
A business believes a Member State is in breach of Union law and wants the Court of Justice to declare so. What is the usual route?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Treaty on the Functioning of the European Union, Articles 258 to 260, infringement proceedings and penalties
- Commission v France (Fisheries), Case C-304/02, 2005
Where to go next
More hard concepts in European Union law
- The preliminary reference procedure (Union courts and procedure)
- Annulment actions and standing (Union courts and procedure)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.