JUDICIAL PROTECTION IN THE EUROPEAN UNION
Highlighted Case law that you can take to the exam
Prof. Melchior Wathelet 2022
Action for Infringement
TFEU
Article 258 If the Commission considers that a Member State has failed to fulfil an
obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the
State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the
Commission, the latter may bring the matter before the Court of Justice of the European
Union.
Article 260
1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil
an obligation under the Treaties, the State shall be required to take the necessary measures to
comply with the judgment of the Court.
2. If the Commission considers that the Member State concerned has not taken the necessary
measures to comply with the judgment of the Court, it may bring the case before the Court
after giving that State the opportunity to submit its observations. It shall specify the amount of
the lump sum or penalty payment to be paid by the Member State concerned which it
considers appropriate in the circumstances. If the Court finds that the Member State concerned
has not complied with its judgment it may impose a lump sum or penalty payment on it. This
procedure shall be without prejudice to Article 259.
3. When the Commission brings a case before the Court pursuant to Article 258 on the
grounds that the Member State concerned has failed to fulfil its obligation to notify measures
transposing a directive adopted under a legislative procedure, it may, when it deems
appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member
State concerned which it considers appropriate in the circumstances. If the Court finds that
there is an infringement it may impose a lump sum or penalty payment on the Member State
concerned not exceeding the amount specified by the Commission. The payment obligation
shall take effect on the date set by the Court in its judgment
Article 126
1. Member States shall avoid excessive government deficits.
2. The Commission shall monitor the development of the budgetary situation and of the stock
of government debt in the Member States with a view to identifying gross errors. In particular
it shall examine compliance with budgetary discipline on the basis of the following two
criteria: (a) whether the ratio of the planned or actual government deficit to gross domestic
product exceeds a reference value, unless: — either the ratio has declined substantially and
continuously and reached a level that comes close to the reference value, — or, alternatively,
the excess over the reference value is only exceptional and temporary and the ratio remains
close to the reference value; (b) whether the ratio of government debt to gross domestic
product exceeds a reference value, unless the ratio is sufficiently diminishing and approaching
the reference value at a satisfactory pace. The reference values are specified in the Protocol on
the excessive deficit procedure annexed to the Treaties.
,3. If a Member State does not fulfil the requirements under one or both of these criteria, the
Commission shall prepare a report. The report of the Commission shall also take into account
whether the government deficit exceeds government investment expenditure and take into
account all other relevant factors, including the medium-term economic and budgetary
position of the Member State. The Commission may also prepare a report if, notwithstanding
the fulfilment of the requirements under the criteria, it is of the opinion that there is a risk of
an excessive deficit in a Member State.
4. The Economic and Financial Committee shall formulate an opinion on the report of the
Commission.
5. If the Commission considers that an excessive deficit in a Member State exists or may
occur, it shall address an opinion to the Member State concerned and shall inform the Council
accordingly.
6. The Council shall, on a proposal from the Commission, and having considered any
observations which the Member State concerned may wish to make, decide after an overall
assessment whether an excessive deficit exists.
7. Where the Council decides, in accordance with paragraph 6, that an excessive deficit exists,
it shall adopt, without undue delay, on a recommendation from the Commission,
recommendations addressed to the Member State concerned with a view to bringing that
situation to an end within a given period. Subject to the provisions of paragraph 8, these
recommendations shall not be made public.
8. Where it establishes that there has been no effective action in response to its
recommendations within the period laid down, the Council may make its recommendations
public. C 326/100 EN Official Journal of the European Union 26.10.2012
9. If a Member State persists in failing to put into practice the recommendations of the
Council, the Council may decide to give notice to the Member State to take, within a specified
time limit, measures for the deficit reduction which is judged necessary by the Council in
order to remedy the situation. In such a case, the Council may request the Member State
concerned to submit reports in accordance with a specific timetable in order to examine the
adjustment efforts of that Member State.
10. The rights to bring actions provided for in Articles 258 and 259 may not be exercised
within the framework of paragraphs 1 to 9 of this Article.
Article 275 The Court of Justice of the European Union shall not have jurisdiction with
respect to the provisions relating to the common foreign and security policy nor with respect
to acts adopted on the basis of those provisions.
However, the Court shall have jurisdiction to monitor compliance with Article 40 of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.
Article 276 In exercising its powers regarding the provisions of Chapters 4 and 5 of Title V
of Part Three relating to the area of freedom, security and justice, the Court of Justice of the
European Union shall have no jurisdiction to review the validity or proportionality of
operations carried out by the police or other law-enforcement services of a Member State or
the exercise of the responsibilities incumbent upon Member States with regard to the
maintenance of law and order and the safeguarding of internal security.
PROTOCOL (No 36)
,Article 10 1. As a transitional measure, and with respect to acts of the Union in the field of
police cooperation and judicial cooperation in criminal matters which have been adopted
before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the
following at the date of entry into force of that Treaty: the powers of the Commission under
Article 258 of the Treaty on the Functioning of the European Union shall not be applicable
and the powers of the Court of Justice of the European Union under Title VI of the Treaty on
European Union, in the version in force before the entry into force of the Treaty of Lisbon,
shall remain the same, including where they have been accepted under Article 35(2) of the
said Treaty on European Union.
Article 279 The Court of Justice of the European Union may in any cases before it prescribe
any necessary interim measures.
Article 259 A Member State which considers that another Member State has failed to fulfil
an obligation under the Treaties may bring the matter before the Court of Justice of the
European Union. Before a Member State brings an action against another Member State for an
alleged infringement of an obligation under the Treaties, it shall bring the matter before the
Commission. The Commission shall deliver a reasoned opinion after each of the States
concerned has been given the opportunity to submit its own case and its observations on the
other party's case both orally and in writing. If the Commission has not delivered an opinion
within three months of the date on which the matter was brought before it, the absence of such
opinion shall not prevent the matter from being brought before the Court.
Comm v Ireland c-249/81
6 as far as the advertising campaign is concerned , the Irish government confirms that it forms part of the activities of the
Irish goods council . however , that institution cannot be regarded as a public authority ; it is merely an arrangement whereby
the various industries in Ireland may cooperate for their common good . the activities of the Irish goods council are not based
on any official enactment and the involvement of the government consists exclusively of financial aid and moral support .
7 the commission maintains that the actions of the irish goods council are unquestionably attributable to the Irish government.
it points out , in particular, that the members of the management committee of the council are appointed , under the articles of
association of that body, by the minister for industry , commerce and energy .
15 it is thus apparent that the Irish government appoints the members of the management committee of the Irish goods council
, grants it public subsidies which cover the greater part of its expenses and , finally , defines the aims and the broad outline of
the campaign conducted by that institution to promote the sale and purchase of Irish products. in the circumstances the Irish
government cannot rely on the fact that the campaign was conducted by a private company in order to escape any liability it
may have under the provisions of the treaty .
Comm v France c-265/95
31 The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to
prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its
territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a
positive act.
32 Article 30 therefore requires the Member States not merely themselves to abstain from adopting measures or engaging in
conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and
appropriate measures to ensure that that fundamental freedom is respected on their territory.
65 Having regard to all the foregoing considerations, it must be concluded that in the present case the French Government has
manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism
which jeopardize the free movement on its territory of certain agricultural products originating in other Member States and to
prevent the recurrence of such acts.
66 Consequently, it must be held that, by failing to adopt all necessary and proportionate measures in order to prevent the free
movement of fruit and vegetables from being obstructed by actions by private individuals, the French Government has failed
to fulfil its obligations under Article 30, in conjunction with Article 5, of the Treaty and under the common organizations of
, the markets in agricultural products.
Comm v Netherlands c-523/04
27 It is true that, in some circumstances, excessive duration of the pre-litigation procedure provided for by Article 226 EC is
capable of making it more difficult for the Member State in question to refute the Commission’s arguments and thus of
infringing the rights of the defence. In this case, however, the Netherlands Government has not proved that the unusual
duration of the procedure has had any effect on the manner in which it has organised its defence (see, in that regard, Case
C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraphs 15 and 16, and Commission v Austria, cited above,
paragraph 36).
Comm v France c-62/89
31 Finally, in its fourth argument, the French Republic contends that in any event the total quota
allocated to the Community for the stocks in question in Faeroese waters for 1985 was not exhausted,
with the result that the fact that France exceeded its quotas did not injure the other Member States or
jeopardize the agreement on fisheries with the Government of Denmark and the Home Government of
the Faeroe Islands.
32 It is sufficient to point out in that regard that the total Community catch in Faeroese waters in
1985, the quantity of which became known only after the end of the year in question, cannot affect a
Member State's obligation to adopt in good time the measures necessary to prevent the exhaustion solely
of the national quota made available to the Member State within the total allowable catch allocated to the
Community.
Comm V Belgique c-27/03
43
Il suffit de constater à cet égard qu’un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre
juridique interne ou des difficultés financières pour justifier le non-respect des obligations et des délais prescrits par une
directive. Il appartient aux États membres de surmonter lesdites difficultés en prenant les mesures appropriées. (voir, notamment,
arrêts du 5 juillet 1990, Commission/Belgique, C-42/89, Rec. p. I-2821, point 24, et du 10 avril 2003, Commission/France,
C-114/02, Rec. p. I-3783, point 11).
50
Il convient, à cet égard, de rappeler que, ainsi qu’il ressort du point 43 du présent arrêt, un État membre ne saurait exciper de
difficultés pratiques ou administratives pour justifier le non-respect des obligations et des délais prescrits par les directives
communautaires. Il en va de même pour les difficultés financières qu’il appartient aux États membres de surmonter en prenant
les mesures appropriées.
Czech Republic v Poland C-121/21 R
1 By its application for interim measures, the Czech Republic asks the Court to order the Republic of Poland to pay a daily
penalty payment of EUR 5 000 000 to the EU budget for failure to fulfil its obligations under the order of the Vice-President of
the Court of 21 May 2021, Czech Republic v Poland (C-121/21 R, EU:C:2021:420; ‘the order of 21 May 2021’).
2 That application has been made in an action for failure to fulfil obligations under Article 259 TFEU, brought by the Czech
Republic on 26 February 2021 and seeking a declaration that the Republic of Poland has failed to fulfil its obligations under:
Comm v UK C-276/19
21 By letter of 8 March 2018, the Commission sent a letter of formal notice to the United Kingdom. It
claimed that the amendments made to the 1973 Order since the notification of 28 December 1977
extended the scope of the derogation which had been requested in that notification, which meant that the
Commission should have been notified of those amendments in accordance with Article 395(2) of
Directive 2006/112.
22 On 9 May 2018, the United Kingdom replied to that letter of formal notice, disputing the substance
of the allegations set out therein.
23 On 20 July 2018, the Commission sent a reasoned opinion to the United Kingdom pursuant to
Article 258(1) TFEU.
