Who can initiate such proceedings?
The enforcement actions against a Member State which fails to comply with EU law may be initiated by the European Commission.
Article 259 TFEU provides that a Member State may also lodge a complaint against another Member State before the Court of Justice. Such complaints have been extremely rare in practice and have usually been a result of political dispute between the Member States concerned.
Which Court of the European Union has jurisdiction for enforcement actions against Member States?
The competent Court to rule on enforcement actions against Member States is the Court of Justice of the European Union (CJEU).
How can a physical or legal person submit a complaint for violation of EU law?
Anyone may lodge a complaint with the Commission against a Member State for any measure or practice attributable to the specific Member State. To be admissible, the complaint must not be anonymous and it has to relate to an infringement of EU law. It is submitted by the complainant in writing and it should include as many relevant details as possible. Following the submission of the complaint, the Commission initiates an inquiry, in order to verify the content of the complaint.
Does the complainant play a role in the proceedings against a Member State?
Although the proceedings against a Member State often commence from a complaint, the complainant does not take part in the proceedings before the Court. However, according to a Commission Communication, complainants have some limited procedural guarantees; they should be kept informed about the process by the Commission, and the Commission is obliged to reach a decision on whether to initiate proceedings against the Member State concerned within 12 months; thus, the period of uncertainty for the complainant is limited.
Is the Commission obliged to bring proceedings against a Member State?
The Commission has complete discretion to initiate proceedings against a Member State or to cease them and is not bound by the fact that an individual has lodged a complaint against a specific Member State. It should be noted, however, that, apart from the ones that are clearly inadmissible, the vast majority of complaints are taken into account by the Commission and proceedings are initiated.
Can a pecuniary penalty be imposed on a Member State and is there an upper limit to such penalty?
If, following a judgment by the CJEU, a Member State fails to comply with the CJEU’s judgment which concludes that the Member State has indeed breached EU law, then the Commission may initiate proceedings against the Member State pursuant to Article 260 TFEU. A new judgment of the CJEU following the procedure provided in Article 260 TFEU shall impose a pecuniary penalty to the Member State.
There are two types of pecuniary penalties to be imposed on Member States; the first type is a lump sum, which is a single, one-off sanction. The second type consists of a penalty payment, which is calculated at a daily rate applied to each day of delay in compliance of the Member State after the judgment. Although Article 260 § 3 TFEU states that a lump sum or a penalty payment can be imposed, the Court of Justice has ruled that the two sanctions can be imposed cumulatively. No upper limit for the fine is provided in the Treaty. It is calculated according to a specific formula and should be in accordance with the principle of proportionality.
II. Preliminary rulings (Article 267 TF EU)
What is the preliminary rulings procedure in a nutshell?
According to Article 267 TFEU, when a question concerning the interpretation of the EU Treaties or the validity and interpretation of EU acts is raised before any court or tribunal of a Member State, then the national court has the discretion (or, in some cases, the obligation) to request from the European Court of Justice to give a ruling in order to clarify the specific issue. The preliminary reference is, in essence, a question submitted by the national judge to the CJEU, aimed at ensuring the uniform application of EU law throughout the Union.
Which Courts of the EU have jurisdiction to issue preliminary rulings?
Preliminary references are addressed to the Court of Justice to the European Union. Pursuant to Article 256 § 3 TFEU, the General Court has also jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by its Statute. However, this competence has not been exercised yet by the General Court.
Who can request a preliminary ruling?
Any court or tribunal of a Member State, no matter how high or low, can request a preliminary ruling. The TFEU does not define the terms “courts” and “tribunals”, but the European Court has set out, through its case law, a number of conditions that have to be fulfilled so that a national judicial body can be considered a “court or tribunal” within the meaning of Article 267 TFEU. These conditions include, amongst others, the following: whether the body has been established by law; whether its jurisdiction is compulsory; whether it applies rules of law; whether it is independent; whether it is permanent.
Are national courts obliged to refer a question to the Court of Justice for a preliminary ruling?
According to Article 267 § 2, national courts and tribunals enjoy, in general, discretion as to whether to request a preliminary ruling by the Court of Justice or not. When national courts or tribunals, whose decisions are not subject to judicial remedy under national law, are faced with a question of application or interpretation of EU law then, according to Article 267 § 3 TFEU, they are under an obligation to refer the question to the CJEU. All national courts are under the obligation to refer a question to the Court of Justice when they are in serious doubt as to the validity of an EU act of secondary law and they intend to rule that this EU act is not valid (Foto-Frost case-law).
Which provisions of EU law can be the object of a preliminary ruling?
Preliminary rulings can be made in relation to Treaty provisions and all Protocols annexed to the Treaties, acts of accession, acts of EU institutions, bodies, offices or agencies (for instance, regulations, directives, decisions), general principles of EU law, provisions of the Charter of Fundamental Rights and, under specific conditions, even guidelines and recommendations (Case Grimaldi).
Can natural or legal persons request a preliminary ruling?
Natural and legal persons cannot, by themselves, request a preliminary ruling before the CJEU. They can however suggest to the national court, before which the main proceedings are pending, to request a preliminary ruling from the CJEU. It should be noted that the national court is not bound by the parties’ request. Natural or legal persons who are involved in the proceedings before the national court that refers the preliminary question to the Court of Justice have the right to participate in the preliminary reference procedure before the CJEU.
Can the Court of Justice decline to give a ruling on a preliminary question?
The Court of Justice assesses the suitability of the question and has the power to refuse to hear it in the following cases: when it considers that the question is of a hypothetical nature or even when it suspects that the referred dispute is fabricated; when it considers that the question is not relevant to the facts of the case; when the facts of the case are not clear enough for the Court to be able to apply the relevant legal rules. Should the Court consider that a question is not properly articulated, it may choose to reformulate the question itself.
Moreover, where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may decide to rule by reasoned order.
Does the Court of Justice apply EU law to the facts of a particular case, namely thecase before the national court which submitted the preliminary question?
Although Article 267 TFEU empowers the Court of Justice to interpret the Treaties, it does not empower it to apply the Treaties to the facts of the particular case which is pending before the national court that submitted the preliminary question. The Court of Justice answers the preliminary questions by its judgment, but it falls in the national court to apply it to facts of the particular case before it.
Can an expedited procedure apply in relation to a preliminary ruling?
At the request of the referring court or tribunal or, exceptionally, of his own motion, the Court may, where the nature of the case requires that it be dealt with within a short time, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure.
Additionally, a reference for a preliminary ruling which raises one or more questions in relation to the area of freedom, security and justice (Articles 67 et seq. TFEU) may, at the request of the referring court or tribunal or, exceptionally, of the Court’s own motion, be dealt with under an urgent procedure.
III. Re view of legality (Article 263 TF EU)
What does the review of legality involve in a nutshell?
Articles 263 and 265 TFEU provide for the testing of the procedural and substantive legality of EU acts. More specifically, Member States, EU institutions and natural and legal persons can bring actions for annulment of specific EU acts before the Courts of Justice of the European Union if they consider them to be in breach of EU law. An action for annulment can also be addressed against EU institutions for failure to act, in order to have the infringement established.
Which acts can be reviewed?
All EU acts that are intended to produce legal effects vis-à-vis third parties can be subject to review of legality by the Courts of Justice. This includes legislative acts such as regulations, directives and decisions, acts of the Council, the European Commission and the European Central Bank, as well as acts of the European Parliament, the European Council and other bodies, offices or agencies of the Union. Recommendations and opinions are not reviewable acts. Under Article 263 TFEU, an action for annulment can also be submitted against regulatory acts which do not entail implementing measures and are of direct concern to an applicant.
On what grounds can the legality of an act be reviewed?
The legality of an EU act can be reviewed on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application and misuse of power.
Who can review the legality of EU acts?
The provisions of Article 263 TFEU distinguish between privileged, semi-privileged and non-privileged applicants. More specifically, the European Parliament, the Council, the Commission and the Member States, are considered to be privileged applicants and can bring an action before the CJEU in all cases. The Court of Auditors, the European Central Bank and the Committee of Regions are considered to be semi-privileged applicants and can only bring an action for purposes of protecting their prerogatives.
Finally, and most importantly, natural and legal persons are considered to be non-privileged applicants and can only bring actions against EU acts, provided that they are addressed specifically to them, or they are of direct and individual concern to them.
Is there a time limit for the challenge of the legality of an EU act?
Pursuant to Article 263 § 6 TFEU, an EU act can be challenged within two months of the publication of the measure in the Official Journal of the European Union, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the plaintiff.
Which Court of the EU has jurisdiction to review the legality of an EU act?
Both the Court of Justice of the European Union and the General Court have jurisdiction to review the legality of EU acts, depending on the nature of the reviewable act.
What is the consequence of the illegality of an act?
When the Court rules that an EU act should be annulled, then the act is declared invalid retroactively (ab initio), and is considered to never have existed in the legal world. The invalidity of the act can be contested erga omnes, that is, it is void against everyone and not only against the parties involved in the proceedings.
IV. Action for da mages (Articles 340 and 268 TF EU)
Does EU law allow for action for damages?
The TFEU includes specific provisions relating to the non-contractual liability of the Union, (Article 340 TFEU) and specifically provides for actions for damages in Article 268 TFEU.
Which Court of the EU has the jurisdiction in disputes relating to compensation for damage?
Actions seeking compensation for damage caused by the institutions of the European Union or their staff are brought before the General Court of the European Union. The judgments of the General Court may be subject to an appeal before the Court of Justice of the EU. The grounds of the appeal are limited to questions of law.
Which conditions have to be fulfilled?
There are specific conditions that have to be fulfilled for an action for damages to be considered admissible. Firstly, a serious breach of EU law by the Union institutions which are accused should be proven. Secondly, actual damage should have occurred. Thirdly, the existence of a causal link between that conduct and the harm alleged should be evident.
V. Dispu tes betwee n the EU and its civil servants
Which is the jurisdiction deciding on EU staff cases?
Until September 2016, the Civil Service Tribunal had sole jurisdiction to hear and decide at first instance on disputes between the European Union and its civil servants. Since then, the relevant jurisdiction has been transferred to the General Court and the Civil Service Tribunal has ceased its activities.
The EU civil service disputes concern questions relating to working relations in the strict sense (pay, career progress, recruitment, disciplinary measures etc.), the social security system (sickness, old age, invalidity, accidents at work, family allowances etc.), fundamental rights, action for damages etc.
EU civil service cases do not involve cases between national administrations and their employees.
The relevant judgments may be subject to an appeal before the Court of Justice of the EU, within two months from the notification of the judgment of the General Court to the parties in the proceedings. The grounds of the appeal are limited to questions of law.
