EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #17

Ch. 11. ENFORCEMENT PROCEEDINGS AGAINST THE MEMBER STATES

A. The Article 226 Procedure

• Requirements of Art. 226 (ex 169)
• Administrative proceeding
• Commission "considers" that MS failed to fulfil Treaty obligation
• Opportunity for affected State to submit observations
• Reasoned opinion by Commission, with deadline for compliance
• if reasons are inadequate, enforcement action fails
• unreasonably short deadline: Poultry Import Control, n. 1 p. 426
• 5 days to abolish restrictions held unreasonably short
• but if Comm. waits to sue, is MS harmed?
• Action before ECJ
• How does the Court's judgment differ from a preliminary ruling?
• Must the Commission take a matter to ECJ? Is its failure actionable? Lütticke, n. 2 p. 426
• Is the "reasoned opinion" binding on the State? Art. 230 (ex 173)
• Is refusal to sue a "failure to address a decision to" plaintiff? Art. 232 (ex 175)
• Is simple failure to sue a breach of duty owed to plaintiff? Star Fruit, same note
• How is Ladbroke Racing II, same note (1995), different?
• If suit against Commission fails, what other options for plaintiff?
• COMMISSION V. FRANCE, Supp p 131 (2002): what exactly did the directives at issue require the MS to do:
• Enact laws obliging waste incinerators to achieve certain combustion standards, or
• Ensure that all waste incinerators in fact achieve those standards?
• If the latter, has France met its obligation?

B. Excuses for Non-Compliance

• Can the MS assert invalidity of the Community law alleged to have been breached?
• Necessity, caused by EC's own failure to provide alternative protections?
• COMMISSION V. LUXEMBOURG AND BELGIUM, p. 429 (1964)
• COMMISSION V. ITALY, p. 431 (1961)
• "Others are doing it"? COMMISSION V. FRANCE, p. 432 (1979)
• Mootness by post-deadline compliance? COMMISSION V. ITALY, p. 434 (1973)
• The offending law isn't actually applied to the disadvantage of other-MS nationals? COMMISSION V. FRANCE, p. 436 (1974)
• If the law remains on the books, will affected persons be unaware of their rights?
• Absent formal revision of the law, how do we know it won't be applied?
• "We're trying to get it through our Parliament?" COMM. V. ITALY, p. 438 (1981)
• “We can’t help it if our courts interpret our statutes to call for results contrary to Community law”? Commission v. Italy, Supp. p. 135 (2003)

C. Article 226 Rulings and their Effect

• Form of judgment: declaration of violation
• Can the Court order specific MS action to remedy the situation?
• State aids (subsidy) cases in 1973 and 1986 say yes, if Commission requires it, pp. 441-2 - but that is a special procedure for state aids, Art. 88 (ex 93)
• Commission hasn't done so in Art. 226 (ex 169) procedures
• COMMISSION V. ITALY, p. 442 (1972): res judicata, "full force and effect of law"
• Art. 228 (ex 171) now provides for a "lump sum or penalty payment".  How does theCourt decide when to impose such sanctions?  COMM. V. GREECE, p. 444 (2000)

D. Member State Enforcement Actions Against Other Member States (Art. 227)