cannot be put into operation without the action undertaken by the national authorities. The latter are, however, sometimes careless and/or reluctant in performing this role, which is why the Treaty makes provision for calling them to account before the Court of Justice. This can be done at the initiative of either the Commission (Article 226 (ex Art 169) EC Treaty) or of the other Member States (Article 227 (ex Art 170) EC Treaty). In addition, specific action may be taken by the Commission against the Member States under Article 88(3) (ex Art 93(3)) EC Treaty (state aids).
Actions brought by the Commission
Acting in its capacity of ‘watchdog of the Treaty’, the Commission is empowered by Article 226 (ex Art 169) EC Treaty to monitor the manner in which the Member States meet their obligations under Community law, call them to order in its own right, and, if this fails to secure compliance, wield the ultimate weapon of taking them to the ECJ. In principle, action by the Commission takes place over three possible stages: the formal notice of default, the action before the ECJ, and the enforcement of any decision taken by the latter. In practice, however, the formal stages are invariably preceded by an informal stage.
Mediation
Where the Commission considers that a Member State has been deficient in performing its Treaty obligations, it will first engage in a series of discussions with the national authorities, usually through the good offices of the Permanent Representation of that State with the Community. To prevent this informal stage from causing undue delay in the monitoring process, the Commission makes it clear that it intends to complete this stage by a certain time limit which usually does not exceed one year. In most cases, this informal procedure will serve to bring the matter to a satisfactory conclusion. The Member State will remedy its mistakes, and the Commission will discontinue its action.
Formal notice of default
If the Commission remains dissatisfied after the informal stage, it will serve a formal notice of default on the Member State concerned, in which the latter is invited to submit its observations. This stage is an important one, not only because it sets off the official part of the proceedings, but also because it defines the terms of reference of the dispute. The Commission may not thereafter extend the scope of the complaint brought against the national authorities.1
1 Case 51/83, Commission v Italy [1984] ECR 2793 at 2804.
Reasoned opinion
The formal notice of default will also be sufficient to prompt the Member State into rectifying the omission complained of by the Commission. If this is not the case, and the national authority resists the challenge issued by the Commission, the latter will issue a ‘reasoned opinion’ in which it sets out the reasons why it considers the Member State to be in default. It will also set a time limit by which the national authorities must reply. Disputes have sometimes arisen as to what constitutes (a) a ‘reasoned opinion’, and (b) a reasonable period in which the Member State can be expected to respond to the Opinion. The Court has tended towards a broad interpretation of both these concepts.2 The decision to issue a reasoned opinion must be taken by the Commission collectively, although this does not mean that it is necessary for the Commission as a body actually to draft the instruments giving effect to this decision.
Proceedings before the Court
If the Member State concerned fails to comply with the terms of the reasoned opinion within the period set by the Commission, the latter may bring proceedings against that State before the ECJ (Article 226 (ex Art 169), second sentence, EC Treaty). Even where the dispute has reached this stage, however, the issue can be settled without requiring a decision by the Court. In fact, between 40 and 50% of cases actually brought to the ECJ are concluded in this way.3 In the vast majority of cases, the Court finds against the Member State.
The Member States’ authorities have served up a wide variety of reasons/excuses for failing to meet their Treaty obligations. In the first place, they frequently plead internal difficulties. The Court hardly ever accepts this defence. Thus the government of a Member State cannot disclaim responsibility by placing the blame for the delay on the national parliament.4The action is not brought against the government as such, but against the government as representing the Member State, which is a legal person in its own right. Still less therefore can trade union objections to a particular directive serve as a valid defence for failing to implement it.5
Another defence which is frequently raised is that of force majeure, in other words, circumstances beyond the control of the national authorities in question.
In one particular case, Italy was arraigned for having failed to provide statistical information regarding transport by road, as required by Directive 78/546.6 The
2 Case 7/61, Commission v Italy [1961] ECR 317 at 322; Case 74/82, Commission v Ireland [1984]
ECR 317 at 338.
3 Weatherill and Beaumont, 1999, p 224.
4 Case 77/69, Commission v Belgium [1970] ECR 237 at 244.
5 Case 128/78, Commission v United Kingdom [1979] ECR 419 at 441.
6 OJ 1978 L 201.
reason given by the Italian government for this omission was the circumstance that the database which should have provided the answers was destroyed in a bomb attack on a Ministry of Transport building. The Court did not accept this defence. It argued that since that bomb attack, the Italian authorities had had ample time to replace the destroyed equipment and supply the relevant data.7 Reciprocity is another excuse which has been pleaded by defendant governments. Certain countries – for example France8– make the performance of their Treaty obligations conditional upon the other party or parties meeting theirs. When France was arraigned before the ECJ for having unlawfully banned exports of lamb, its government argued that the United Kingdom had failed to meet its obligations without being subjected to Commission action. The ECJ did not accept this argument, pointing out that the EC Treaty contained adequate mechanisms in order to address such problems.9
The Court is not, however, authorised to give guarantees to a Member State regarding the consistency with EU law of a particular form of conduct. A Member State cannot, therefore, rely on any guarantees provided by the Commission in order to evade its obligations under EU law.
Enforcement of ECJ decision
Prior to the TEU, the decisions of the ECJ made under Article 226 (ex Art 169) EC Treaty were incapable of being enforced. Any decision made against a Member State was accompanied by the requirement that the national authorities in question should take the necessary steps to comply with the terms of the judgment. If the Member State in question continued to fall foul of its obligations, the Commission had no option but to recommence the entire Article 226 (ex Art 169) procedure afresh. The new Article 228 (ex Art 171), however, opens up new possibilities in this regard. Henceforth, if the Commission considers that the Member State in question has failed to take the necessary corrective action, it will issue a reasoned opinion to that effect, specifying the points on which the national authorities have failed to comply with the ECJ decision. If the Member State then fails to regularise its position within the time limit laid down by the Commission, the latter may bring the case before the ECJ and specify the financial penalty which it considers to be appropriate. If the Court rules that the Member State is still in breach of its obligations, it may impose a financial penalty.
In 2000, the ECJ for the first time imposed a penalty on a Member State for its failure to comply with an earlier decision finding that it had failed to meet its
7 Case 101/84, Commission v Italy [1985] ECR 2629 at 2537.
8 See Article 55 of the 1958 Constitution of the Fifth Republic.
9 Case 232/78, Commission v France [1979] ECR 2729 at 2733. See also Cases 90 and 91/63, Commission v Belgium and Luxembourg [1964] ECR 625.
Community obligations regarding the disposal of waste. Having taken into account the obligations which Greece had failed to meet, the Court laid down a number of criteria for fixing the amount of the penalty payment, including the duration and seriousness of the infringement, the Member State’s ability to pay, the consequences of any failure to pay, and the urgency of the matter. As a result, it decided on a penalty payment of EUR 20,000 for each day of non-compliance.
Actions brought by other Member States
Under Article 227 (ex Art 170) EC Treaty, Member States have the right to bring proceedings against other Member States if they consider that the latter are in default of their Treaty obligations. This was always intended to be an exceptional procedure, because it is the Commission which is the proper guardian of the Treaties and which should, under Article 226 (ex Art 169) EC Treaty, bring defaulting Member States to book. However, the Article 227 (ex Art 170) procedure remains a useful safeguard against errors of judgment made by the Commission in this regard. It should, however, be pointed out that the Member State bringing the action must involve the Commission very closely during the run-up to proceedings before the ECJ.
Thus far, only two cases of this nature have ever been taken to the ECJ. The first was brought by the French Government (supported by the Commission) against the United Kingdom10, claiming that British rules on the mesh size of fishing nets constituted unlawful unilateral action. The Court awarded the action to France. In the second case,11Belgium brought an action against Spain, complaining that a domestic rule requiring wine to be bottled in the region of production infringed Community rules on the free movement of goods. Here, however, the ECJ refused to award the action.
The provisions of the new Article 228 (formerly 171) EC Treaty relating to the enforcement of such decisions, discussed in the previous section, also apply to this procedure.
Actions under Article 88(2) (ex Art 93(2)) EC Treaty
The drafters of the Treaty considered that infringements by the Member States of the provisions relating to State aids warranted a separate, and more streamlined, procedure. If the Commission considers that such an infringement has been committed, it instructs the Member State in question to rectify its position within a certain time limit. If this instruction is not complied with, the Commission refers the matter to the ECJ ‘in derogation from the provisions of Articles 226 and 227 [ex Arts 169 and 170]’. It should be noted, however, that the
10 Case 141/78, France v United Kingdom [1979] ECR 2923.
11 Case C-388/95, Belgium v Spain, as yet unpublished.
Commission may, if it so chooses, have any infringements of this nature dealt with under Article 226 (ex Art 169) EC Treaty.12