Chapter 14
ENFORCEMENT OF EU LAW – ACTIONS AGAINST MEMBER STATES
1. Does Article 258 TFEU give the Commission discretion as to whether to bring proceedings
against a Member State for an alleged breach of EU law before the ECJ?
a. The Commission has no discretion as Article 258 TFEU specifies what action it must take.
b. The Commission has a limited discretion in such circumstances.
c. The Commission has complete discretion as to whether to bring proceedings against the
Member State before the ECJ.
a. This is an incorrect answer. The wording of Article 258 TFEU itself mentions that the
Commission ‘may’ bring the matter before the ECJ indicating that they have complete
discretion.
b. This is an incorrect answer. The Commission has complete discretion under the wording of
Article 258 TFEU and no action can be taken against the Commission if it decides not to take
the matter before the ECJ.
c. This is the correct answer. Although the Commission has a duty under Article 17(1) TEU
to make sure that EU law is applied correctly, Article 258 TFEU uses the word ‘may’ to
denote the discretion that it has in such circumstances. The Commission can decide the best
or most appropriate way of fulfilling its duties. It can stop the proceedings at any stage.
2. What document is issued at the end of the administrative stage of proceedings under
Article 258 TFEU if the Member State persists in its failure to fulfil its obligations arising out
of EU law, and the Commission wishes to pursue the matter?
a. A recommendation
b. A reasoned opinion.
c. A formal notice
a. This is an incorrect answer. A recommendation is mentioned in Articled 288 TFEU as a
non-binding measure which EU institutions can adopt. At the end of administrative
proceedings under Article 258 TFEU the Commission, if it considers it appropriate, issues a
reasoned opinion
b. This is the correct answer. The reasoned opinion is a very important document because it
forms the basis of any action taken before the ECJ if the Commission decides to take the
matter before the ECJ. The reasoned opinion must contain a cogent and detailed exposition of
the reasons which led the Commission to the conclusion that the Member State has failed to
fulfil its obligation under the Treaty. The reasoned opinion invites the defaulting Member
State to cease the infringement and indicates the appropriate measures that should be taken to
that end. It also fixes a time-limit for the Member State concerned to comply, usually two
months, but in urgent cases this period may be shortened. The time-limit cannot be changed
by the ECJ, although it will be taken into account when the ECJ determines whether the
Commission had given a "reasonable time" to comply with the reasoned opinion.
c. This is an incorrect answer. The formal notice is used during, and not at the end of the
administrative stage of the Article 258 TFEU proceedings. The letter of formal notice
determines the scope of the case which cannot later be widened, even at the stage of the
reasoned opinion. It invites an allegedly defaulting Member State to submit its observations
on the disputed matters, and guarantees the right of defence of the Member State, although
the Member State is not obliged to reply. Usually the Commission gives a defaulting Member
State two months to reply, but in urgent cases this time limit may be shortened.
3. Which EU institution can take enforcement action against a Member State under Article
258 TFEU?
a. The Commission
b. The Council
c. The EP
a. This is the correct answer. Only the Commission can bring an enforcement action under
Article 258 TFEU.
b. This is an incorrect answer. The Council plays no role in the enforcement procedure under
Article 258 TFEU.
c. This is an incorrect answer. The EP is not involved in Article 258 TFEU proceedings
4. Which of the following defences submitted by a Member State allegedly in breach of EU
law is likely to be accepted by the ECJ?
a. defence based on reciprocity
b. defence based on necessity
c. defence based on force majeure
a. This is an incorrect answer. Although this defence is recognised under public international
law it was rejected by EU law as contrary to the spirit and objectives of the EU legal order. A
Member State cannot withhold its own performance even if either an EU institution or
another Member State has failed to perform its obligations The position of the ECJ is fully
justified because under the Treaties unlawful actions or omissions of either Member States or
EU institutions are investigated and properly dealt with in accordance with the procedures set
out in the Treaties.
b. This is an incorrect answer. This defence, although recognised under public international
law, was rejected by the ECJ.
c. This is the correct answer. However, the defence based on force majeure, has never been
successfully pleaded. The reason being that the ECJ has always interpreted this concept
strictly. The definition of force majeure was provided in Case 296/86 McNicoll in
proceedings under Article 263 TFEU, and has been transposed to proceedings under Article
258 TFEU. In that case the ECJ held that although the concept of force majeure does not
presuppose an absolute impossibility of performance, it nevertheless requires that nonperformance of the act in question be due to circumstances beyond the control of persons
pleading force majeure, that the circumstances be abnormal and unforeseeable and that the
consequences could not have been avoided through the exercise of all due care.
5. Can the Commission request the ECJ to impose a pecuniary penalty on a Member State
which is allegedly in breach of EU law in its application to the ECJ in which it asks the ECJ
to declare that a Member State has failed to fulfil its obligation deriving from EU law?
a. This possibility is excluded under EU law.
b. This possibility is limited to the cases in which a Member State has failed to notify to the
Commission measures transposing a directive adopted under the legislative procedure.
c. The Commission can always make such a request.
a. This is an incorrect answer.
b. This is the correct answer. Under Article 260(3) TFEU the Commission may, in its
application to the ECJ which asks for a finding of failure, when a Member State has failed to
notify to it measures transposing a directive adopted under the legislative procedure, request
the ECJ to impose a pecuniary penalty. In such a situation the Commission is not required to
wait until the Member State concerned fails to comply with a judgment of the ECJ to propose
a pecuniary penalty.
c. This is an incorrect answer.