Workshop 7: Commission enforcement and Judicial Review

Part 1: Enforcement Actions at Union Level

1) What are the stages of an Article 258 TFEU action?

a. (Informal stage) Commission observes perceived breach – it sends a

letter asking for information.
i. Failure to provide information is itself a breach that action can
be taken against (Greece v Com C-240/86).
b. MS submits observations.
c. (Formal stage) Commission provides a reasoned opinion – setting out
a time period for the MS putting things right.

2) At what point does the Court get involved?

a. Almost 90% of cases – CJEU do not get involved.

b. CJ only involved if MS fails to remedy the breach.
i. If MS does remedy, then no further action can be brought –
this is why Francovich is so important.

3) What discretion does the Commission have in taking decisions about the
progress of an Art 258 TFEU action?

a. Does not have to bring, but must “consider” – see with the French
action concerning the Roma people in 2010.
b. Issue discussed by AG in Com v France C-7/71
i. Depends on seriousness of breach;
 ii. Resources of the Commission;
iii. Law may soon alter at EU level;
iv. Could be settled without if delay is allowed.
c. Problems with discretion? Duty in art 17 TFEU (Guardian of the
Treaties) or Discretion (if the Commission considers, art 258 TFEU)?
Appearance of bias?

4) How efficient is the article 258 TFEU procedure and the new procedure
introduced by the Lisbon Treaty?

a. Lots of them – over 2500 a year!

b. Problem is if MS use the 258 procedure as an extension on the
transposition of directives. They can wait to the last minute and still
avoid penalties.
i. Mitigated – direct effect and Francovich damages.
ii. Also Art 260(3) – Following Art 258 procedure, if the issue is
procedural failure : non-notification of measures transposing a
directive, a fine can be imposed as soon as the issue first goes
to the CJEU under 260 (don’t have to wait for the court to have
its judgement ignored).
1. Only this issue and only max fine set by Commission.
2. Good/bad?

5) What powers does the Court have under Articles 258 and 260 TFEU?

a. CJEU in Art 260.

b. Art 260(1): If MS fail to comply with the Commission’s reasoned
opinion then the CJEU will rule on whether there is a breach. They
will then:
i. Require compliance. Or
 ii. Impose fine (if issue is procedural failure: non-notification of
measures transposing a directive – Art 260(3))
c. Art 260(2): If MS does not comply with this ruling, Commission will
bring the issue back to the CJEU for a fine/punishment to be imposed
(after giving the State the opportunity to submit its observations and
not after second reasoned opinion as before Lisbon. The CJEU is not
bound by Commission’s fine/lump sum amounts).

6) Are the remedies which the Court can offer sufficient?

a. Unlimited fine – takes account of seriousness of breach, wealth of

MS etc. (Commission v Greece Case 387/97)
b. Can grant interim measures (injunctions etc) but this is rare. Articles
278 and 279 TFEU respectively, provide for suspension orders and
orders for interim measures. Commission v UK (Case C-246/89R)
[1989] ECR 3125 - The Court of Justice ordered the suspension of
provisions of the UK Merchant Shipping Act 1988, which the
Commission claimed infringed [EU] law, pending judgment in the
main [Article 258] enforcement proceedings.
c. Effective:
i. Lump sum for past failure and rolling fine for future.
ii. High rate of compliance.
d. But:
i. Who does it go to? The EU… (not those individuals that lose
out)
ii. Takes a long time…

Part 2: Judicial Review

 1) What are the arguments for and against extending locus standi to non-
privileged applicants?

 Against:
o Too many cases for the court;
o Better to use Art 267 (preliminary references);
 For:
o Greater checks and balances;
o Unfair that certain groups can’t challenge;
o Art 267 not always available due to local standing issues;

2) Does Art 263 TFEU guarantee great judicial review? Discuss

1: The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of
the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the
European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall
also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis
third parties.

2: It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the
Council or the Commission 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, or misuse of powers.

3: The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the
European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

4: Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute
proceedings against an act addressed to that person or which is of direct and individual concern to them, and
against a regulatory act which is of direct concern to them and does not entail implementing measures.

5: Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements
concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to
produce legal effects in relation to them.EN C 83/162 Official Journal of the European Union 30.3.2010

6: The proceedings provided for in this Article shall be instituted within two months of the publication of the
measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the
knowledge of the latter, as the case may be.
Process

 Reviewable act? Must be legally binding (para 1)

 Time limit? Within 2 months (para 6)
 Standing?
o Privileged? Can do anything (para 2)
o Semi-Privileged? Anything to protect their prerogative (para 3)
o Non-Privileged? (para 4)
 Legislative Act –
 Addressed to them: Can do anything (unqualified right to
challenge)
 Not Addressed to them: if of direct and individual concern,
or
 Regulatory Act: does not require implementing measures (e.g.
delegated regulation) and is of ONLY direct concern

 Direct concern: Causal link between the EU measure and the effects on the
non-privileged applicant = no link if the measure leaves discretion to MS. No
Treaty definition but case law is of guidance here:
o Regione Siciliana: Money granted to Italy and then passed on to
company to build a dam. Commission decision to remove the money –
claimed that MS in the middle prevented direct concern.
 IS direct concern – Decision could only mean no more money for
them (not a partial funding decrease).
o International Fruit C-41-44/70: Fruit import quota. Decisions about
licences made from the Commission with no discretion for MSs.
 IS direct concern.
o Luxembourg Steel (Differdange): Commission authorised state support
for steel if there was a reduction in capacity. However, MS to choose
which plants were to be closed, and which supported. Local Gov brought
an action due to reduction in tax due to local plant closure.
 No direct concern – MS discretion.
 Individual concern (no longer as vital for regulatory acts): Is the non-
privileged applicant affected by the measure in a way that isolated them from
everyone else affected?
o Plaumann C-25/62: Measure affecting Clementine importers. Thus, NO
individual concern because anyone could be a Clementine importer.
(OPEN-ENDED group). Must be as if it was a decision addressed to you.
Test explained in Toepfer C 106&107/63: Commission Decision affecting
maize/cereals importers who had already applied for a licence, including
T (CLOSED CATEGORY of persons, fixed, non-extendable group).
 Very tight, but novel ways have been found to satisfy individual
concern:
 Trademarks: Codorniu C-789,790/79: Measure which
limited the term ‘cremant’ to certain wines. Affected
trademark and thus them individually.
 Closed/past class: E.g. cereals importers who had already
applied for a licence on 1st October – class than no others
can join (Toepfer)
 (Partie Ecologiste (Les Verts) – where political interests of
the Union are at issue and no alternative remedy available
 UPA (Spanish Olive Oil) denial of effective judicial
protection

 Grounds of review: (We have looked at these in previous seminars –

requirement for the validity of secondary legislation) (para 2)
o Lack of competence – legal base etc (substantial ultra vires – a body can
only do that which it is authorised to do by law)
o Infringement of an essential procedural rule – reasons, voting etc
(procedural ultra vires)
o Infringement of the treaties or any rule of law relating to its application
– respect for fundamental rights, subsidiarity, proportionality, non-
discrimination/equality, legal certainty, legal expectation etc
 o Misuse of powers – cover all? Is when a Union institution has adopted a
measure with the exclusive or main purpose of achieving an end other
than stated – Guiffrida v Council Case 105/75.

 Remember – look at the facts of problem and look at the legal base carefully in
the exam – as we did in previous exercises.
Part 3: Problem Question –

In June 2014, the Council of Ministers, by a qualified majority vote, adopted

(fictitious) Directive 2014/200, a measure designed to increase the protection
afforded to young people at work. Among other things, the Directive provides
that no young person shall be required to work at night. Member States were
given three years in which to implement the Directive.

The British Government, which believes that employment practices are best
regulated by national governments, voted against its adoption in the Council and
has since refused to implement the Directive.

On the 10th February 2018, given the UK‘s continued refusal to implement the
Directive, the Commission, without any consultation and without providing any
justification, issued (fictitious) Decision 2018/7, addressed to the Confederation of
British Employers (CBE) requiring them, with immediate effect, to impose
financial penalties on any of its members who employ young people under 18
years of age between the hours of 10 p.m. and 8 a.m.

1) How, and on what grounds, might the CBE challenge Decision 2018/7 in
the Court of Justice?

2) BestCo plc, a British supermarket chain and a member of the CBE,

employs a large number of young people as night-shift workers in many of
its stores and is concerned at the impact of the Decision on its
profitability. Consider whether it would be possible for BestCo to
challenge Decision 2018/7 in the Court of Justice.

 Look at the two questions

o One on Standing
o One on grounds
o Discuss…..
How, and on what grounds, might the CBE challenge Decision 2018/7 in the
Court of Justice?

 Mention of grounds means you must deal with these.

 Also, mention of CJEU means only Art 263 and not Art 267.

 Reviewable? Yes
 Time limit? Would have to be within 2 months
 Standing? Yes – decision addressed to them
 Grounds? Lack of competence; Infringement of an essential procedural rule;
Infringement of the treaties or any rule of law relating to its application;
Misuse of powers
o Competence? (Look at the legal base in the exam)
 Should the Commission have used the enforcement procedure
against the UK – Art 258.
 What is the legal base for the decision?
o Procedural rule? We are told that the Commission issue the decision
“without any consultation and without providing any justification”
 No consultation – required? Look at legal base in the exam! –
we are not told here.
 Roquette Freres: Failure to consult can be grounds for
annulment.
 No justification – always required!
 Art 296 TFEU (reasons)
o Treaty rule – Art 5 TEU – proportionality/subsidiarity etc.
 Proportionality – why impose financial penalties? Could just
require them to not make young people work.
BestCo plc, a British supermarket chain and a member of the CBE, employs a
large number of young people as night-shift workers in many of its stores and is
concerned at the impact of the Decision on its profitability. Consider whether it
would be possible for BestCo to challenge Decision 2018/7 in the Court of
Justice?

 Reviewable act? Yes

 Time limit? Again, assume yes.
 Standing?
o Non-privileged – decision addressed to another – requires direct and
individual concern.
 Direct? Yes look at the discretion (is there any discretion left to
the CBE?) – is the chain broken?
 Individual? No – according to Plaumann
 Could try and claim that its current employment
contracts make it a closed class? (use other case law
such as Toepfer
 Conclusion – Grounds will be the same, but it will struggle with standing.
o May be better to use Art 267 if issue arises in national proceedings.