Enforcement of EU law

Article 288 of the Treaty on the Functioning of the European Union (TFEU)

It states that to exercise the EU’s competences, the EU institutions must adopt regulations, directives, decisions, recommendations and opinions. It also describes the specific nature of these legal acts with regard to their application and the extent to which they are binding.

KEY POINTS

The EU is based on the rule of law. It relies on the law to ensure member countries properly implement its policies and priorities.

The European Commission monitors whether the legislation is applied correctly and on time. It can take legal action against governments and companies which ignore their responsibilities or break the law.

The Commission is mandated under Article 17 of the Treaty on European Union (TEU) to ensure proper application of:

EU treaties;
various measures, legislative and others, that the EU agrees on;
EU law under the overall control of the Court of Justice of the European Union.

The Commission:

drafts legal acts and submits them to the co-legislators which are the European Parliament and the Council;
helps EU countries to implement EU law correctly by:
providing online information, implementation plans and general guidance,
organising expert group meetings;
initiates legal action before the Court of Justice of the European Union if it considers a government is failing to place EU legislation on its domestic statute book by the agreed deadline or to implement it correctly (an infringement procedure);
fines companies it considers are breaking EU competition rules.

The Court of Justice of the European Union:

interprets treaties and legal acts via the preliminary ruling procedure;
rules whether a violation of EU law has taken place;
can fine governments which fail to take the necessary corrective action after being found guilty of breaking EU law.

National governments:

are primarily responsible for putting EU legislation (regulations, directives and decisions) into domestic law and ensuring it is implemented correctly (Article 4 TEU)
must adopt all domestic legal measures required to fully implement binding EU legislation (Article 291 (1) TFEU)
must provide effective procedures for anyone believing their rights under the legislation are not being respected.

BACKGROUND

EU law is based on primary and secondary legislation. The former are the EU treaties which provide the basis and ground rules for all EU activity.

The latter consists of regulations, directives, decisions, delegated acts and implementing acts.

Regulations and decisions are automatically legally binding throughout the EU on the date they take effect and the directives have to become law in the EU countries by a certain deadline, usually 2 years.

DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section I — The legal acts of the Union — Article 288 (ex Article 249 TEC) (OJ C 202, 7.6.2016, pp. 171-172)

Consolidated version of the Treaty on European Union — Title I — Common provisions — Article 4 (OJ C 202, 7.6.2016, p. 18)

Consolidated version of the Treaty on European Union

Title III — Provisions on the institutions — Article 17 (OJ C 202, 7.6.2016, pp. 25-26)

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section I — The legal acts of the Union — Article 291 (OJ C 202, 7.6.2016, p. 173)

Infringement of EU law

Articles 258, 259 and 260 of the Treaty on the Functioning of the European Union (TFEU)

They set out the action to be taken if the European Commission or an EU government considers that a particular EU country has not fulfilled its obligations under EU law.

KEY POINTS

Failure to meet EU obligations may be due to:

legislative or administrative decisions or practices;
positive action (adopting measures contrary to EU law or not repealing any that are);
negative action (delays in implementing EU law or failing to inform the Commission of the implementation).

The infringement procedure

The legal proceedings before the Court of Justice of the European Union are:

usually brought by the Commission, but may also be initiated by another EU country;
directed at the EU country, even if the perceived failings are the responsibility of its government, parliament, federal or subnational bodies.

The procedure works as follows:

The Commission or an EU country indicates that a given EU country may not be meeting its obligations.
The Commission sends a letter of formal notice to the country in question requesting further information. That country must send a detailed reply by a given deadline, usually 2 months.

On the basis of this reply, the Commission may:
issue a reasoned opinion (a formal request to comply with EU law, calling on the EU country in question to inform it of the measures taken to comply within a specified period, usually 2 months); or
close the case, in which the issues with the EU country concerned have been solved without the Commission needing to pursue the procedure.

If the country concerned fails to comply with the Commission’s opinion within the timetable given, the Commission may refer the case to the Court of Justice.

If another EU country has initiated the procedure, it may refer the case to the Court even if the Commission does not deliver a reasoned opinion.
The Court can instruct an EU country it considers is breaking EU law to take certain measures.
If the Commission believes the country is not complying with the legal ruling, it can refer the case to the Court a second time, recommending the size of fine it considers should be paid.

If the Court finds that the judgment is still not being respected, it can impose a lump sum and/or penalty payment.

In the event that the Commission refers an EU country to the Court for failure to communicate national measures implementing EU law, it may at the same time ask the Court to impose financial sanctions. In that case, the Court can impose penalties at the stage of the initial judgment.

DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Articles 258, 259 and 260 (OJ C 202, 7.6.2016, pp. 160-161)

Preliminary ruling proceedings — recommendations to national courts

Recommendations to national courts on the use of the preliminary ruling procedure

Article 267 of the Treaty on the Functioning of the European Union (TFEU)

These recommendations explain to courts and tribunals in EU countries the purposes of a procedure which entitles them, under Article 267 of the TFEU to refer to the Court of Justice of the EU (CJEU) for a preliminary ruling. This procedure is used in cases where the interpretation or validity of an EU law is in question, and:

where a decision is necessary for a national court to give judgment; or
where there is no judicial remedy under national law.
The recommendations also detail the scope of the procedure and the form in which national courts should submit their referral.

They supplement Articles 93 to 118 of the CJEU’s Rules of Procedure.

Significance of the preliminary ruling procedure

This procedure is considered useful when, in a case before a national court, a question of interpretation which is new and of general interest for the uniform application of EU law is raised, or where the existing case-law does not appear to give the necessary guidance to deal with a new legal situation.

Structure of the recommendations

A set of recommendations applies to all requests for a preliminary ruling and a further set specifically applies to expedited procedures* or urgent procedures*.

Who makes the request for a preliminary ruling?

The national court or tribunal before which a dispute is brought takes sole responsibility for determining both the need for a request for a preliminary ruling and the relevance of the questions it submits to the CJEU.

Courts submitting a referral should, among other things:

be established by law and be permanent;
have compulsory jurisdiction;
apply the rules of law; and
be independent.

Subject matter and scope

Importantly, a referral must concern the interpretation or validity of EU law not national law nor issues of fact raised in the main proceedings.

The CJEU may only give a ruling if EU law applies to the case in the main proceedings.
The CJEU does not itself apply EU law to a dispute brought by a referring court, as its role is to help resolve it; the role of the national court is to draw conclusions from the CJEU’s ruling.
Preliminary rulings are binding both on the referring court and on all courts in EU countries.

Timing of referral and the staying of national proceedings

A referral should be made as soon as it is clear that a CJEU ruling is necessary for a national court to give judgment and when it is able to define in sufficient detail the legal and factual context of the case and the legal issues which it raises.
The national proceedings must be stayed until the CJEU has given its ruling.

Form and content of the referral

The referral must be drafted simply, clearly and precisely given that it will need to be translated to allow other EU countries to submit their observations.
Article 94 of the CJEU’s Rules of Procedure specifies the content of the request which should accompany the referring court’s questions, the essential points of which are summarised in the annex to the recommendations.

All referrals must be dated, signed and sent by registered post to the CJEU’s registry in Luxembourg.

Costs and legal aid

Preliminary ruling proceedings before the CJEU are free of charge. The referring court rules on the costs incurred by the parties, where necessary.

Role of the CJEU registry

The registry liaises with the referring court during the proceedings and sends it copies of all procedural documents and requests for information.
At the end of the proceedings, the registry sends the CJEU’s decision to the referring court. The referring court should keep the registry informed of any action taken and of its final decision in the case.

Expedited and urgent referrals

Under Articles 105-107 of its Rules of Procedure, the CJEU may decide that some referrals should be handled by means of expedited or urgent procedures.
Deadlines are shorter, for example to allow EU countries to submit observations in the case of expedited referrals.
T

he referring court must justify the urgency, pointing out the potential risks in following the ordinary procedure.
Requests for an expedited or urgent procedure may initially be emailed or faxed to the CJEU registry.

KEY TERMS

Expedited procedure: a procedure where the nature of the case and exceptional circumstances require it to be handled quickly.
Urgent procedure: a procedure applying only in cases involving questions relating to freedom, security and justice. In particular, it limits the number of parties authorised to submit written observations and allows, in cases of extreme urgency, for the written stage of the procedure to be omitted before the CJEU.

DOCUMENTS

Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C 439, 25.11.2016, pp. 1-8)

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 267 (ex-Article 234 TEC) (OJ C 202, 7.6.2016, p. 164)

Consolidated version of the Treaty on European Union — Title III — Provisions on the institutions — Article 19 (OJ C 202, 7.6.2016, p. 27)

Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, pp. 1-42)

Amendment of the Rules of Procedure of the Court of Justice (OJ L 173, 26.6.2013, p. 65)