Essay
The Purpose of Article 259 TFEU and proposed changes
- Module
- European Union Law (EU2)
- Institution
- University Of Buckingham
An essay on article 259 TFEU and proposed changes to make it more effective
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The aim of Article 259 TFEU is twofold: to allow Member States to hold themselvesaccountable to one another, and to aid in upholding the democratic principles the EU is founded
on. Historically, article 259 has been used reluctantly and rarely by Member States to bring an
action against another Member State. In the majority of these cases, the claimant party has failed.
Based on case law, there is a pattern where if the Commission refuses to bring an action, or
support the action of a Member State, it will not succeed if it proceeds to the CJEU under article
259. The procedure of article 259 is not effective at encouraging Member States to use it, and a
proposed change could offer new perspective for Member States and hopefully change the
established pattern of reluctance to use it.
Article 259 TFEU provides a means for any Member State to initiate an action against
another Member State which it considers to be in breach of the Treaty. Under this article, the
matter must first be brought by the complaining Member State to the Commission. The
Commission will then decide whether there has been a breach and whether it will give a reasoned
opinion. Both Member States will be given the opportunity to submit its own case to the
Commission before it issues a reasoned opinion. If the Commission decides that there has not
been a breach, the complaining Member State may still bring the case to the CJEU.1
As of today, only eight cases have been brought under article 259 TFEU. Six of these
cases have proceeded to judgment and only two were successful. By contrast, between 2002 and
2018, 1,418 cases proceeded to judgment under article 258 TFEU and 91% of them were
successful.2 (Article 258, similar to article 259, also provides a means for taking action against a
1
Paul Craig, Grainne de Burca, EU Law Text, Cases, and Materials (6th edn, Oxford University
Press 2015) 453.
2
Phedon Nicolaides, ‘“ Member State v Member State” and other peculiarities of EU Law’
(Maastricht University, 24 June 2019).
https://www.maastrichtuniversity.nl/blog/2019/06/%E2%80%9Cmember-state-v-member-
state%E2%80%9D-and-other-peculiarities-eu-law accessed 8 August 2020.
, Member State, who has breached a Treaty provision, where the Commission initiates the action,
instead of a Member State). An aggrieved Member State is actually more likely to persuade the
Commission to initiate proceedings under article 258, rather than initiate proceedings themselves
under article 259. “Normally, Member States with grievances against other Member States prefer
to complain informally to the Commission and leave it to this institution to formally act, also
before the Court”.3 This statement is supported through case law regarding article 259.
In the case Spain v UK4, Spain brought an action against the UK under article 259. The
case regarded the way in which the UK extended voting rights in European Parliament elections
to Gibraltarians. The Commission encouraged the two states to resolve the dispute amicably and
refused to issue reasoned opinion, “given the sensitivity of the underlying bilateral issue”.5 The
CJEU found for the UK. This case is an example of the political sensitivities that can be involved
when bringing an action under article 259 TFEU. There is extensive history between the UK and
Spain regarding Gibraltar going back to the 1700s. The Commission was much more hesitant in
this case to intervene, clearly for political reasons.
The case France v UK6 shows clear distinctions between itself and Spain v UK. In this
case, France brought an action against the UK under article 259 in October 1979. France alleged
that the UK had failed to fulfil its obligations under the then EEC Treaty, by adopting the fishing
nets (north-east atlantic) order 1977. In this case, the Commission intervened in support of
France. Before proceedings had commenced with the CJEU, it had issued a reasoned opinion,
citing that the UK had indeed breached its obligations under the Treaty by bringing the disputed
order into force. The UK failed to comply with the Commission’s position, so France brought the
3
Luca Prete, Ben Smulders. ‘The Coming of Age of Infringement Proceedings’ (2010) 47
Common Law Market Review 9, 27.
4
Case C-145/04 Spain v UK [2006] ECR I-07917.
5
Case C-145/04 Spain v UK [2006] ECR I-07917, para 32.
6
Case C-141/78 France v UK [1979] ECR I-2923.
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