Article 258 TFEU: Infringement Action

Overview:

• Purpose: Art. 258 TFEU allows the European Commission (Com) to take legal action against Member States (MS) that fail to fulfil their obligations under EU law.

• Static Nature: This provision has seen minimal changes over the past 50 years, reflecting its relatively static role in the Treaties.

Process:

1. Initial Discussions:

◦ Diplomacy and Negotiation: The process often begins with informal discussions between the Com and the MS involved. This stage is less legalistic and focuses on negotiation.

2. Official Steps:

◦ Administrative Stage: A significant portion of cases (68%) are resolved during informal discussions without further formal action.

◦ Letter of Formal Notice: If the issue persists, the Com issues a formal letter outlining the nature and context of the alleged violation. Most cases (84%) are resolved at this stage.

◦ Reasoned Opinion: If the issue is not resolved, the Com sends a reasoned opinion—a formal letter detailing the violation and requesting compliance.

◦ Referral to the ECJ: If compliance is not achieved, the Com may refer the case to the Court of Justice of the European Union (ECJ) for judgment.

3. Time Limits:

◦ No Specified Time Limits: Art. 258 does not set specific deadlines for MS to respond. The timeframe for responses depends on the specifics of each case, as demonstrated in Commission v Netherlands (C-350/02, 2004).

Disadvantages:

1. Defences Rarely Succeed:

◦ High Success Rate for Com: In 2019, the Com won 94 out of 103 cases. The Com tends to pursue cases with a high likelihood of success, applying significant pressure on MS to comply before reaching the Court.

◦ Example: Commission v UK (1988) involved a situation where strikes and political actions were beyond the government’s control, but the UK was still prosecuted. The ECJ does not consider the motivations behind the Com’s choice to pursue specific cases.

2. Lack of Third-Party Participation:

◦ Bilateral Process: The infringement procedure is essentially bilateral, involving only the Com and the MS. The negotiations are confidential, with limited judicial oversight or accountability.

◦ Counterpoint: The Com articulates its priorities periodically, focusing on systemic issues that affect the EU’s functioning.

3. Limited Remedies for Individuals:

◦ No Direct Access: Individuals cannot directly bring infringement cases or seek remedies through this procedure. However, individuals can still use the principle of direct effect to invoke EU law before national courts, as established in Van Gend en Loos.

Art. 259 - Inter-State Infringement Procedure:

• Purpose: This procedure allows one MS to bring a case against another MS for violations of EU law.

• Role of CJEU: The ECJ mediates in these disputes.

• Rarity: This procedure is seldom used compared to Art. 258.

Summary: Art. 258 TFEU provides a structured process for enforcing EU law against MS through the Commission’s action and the potential involvement of the ECJ. Despite its effectiveness in securing compliance, the process faces criticisms related to its static nature, the rarity of successful defences, lack of third-party participation, and limited remedies for individuals. The inter-state infringement procedure under Art. 259 remains a rare but important mechanism for resolving disputes between member states.