Week 7: Enforcement and Judicial Protection
Law of The European Union | LLB International and European Law | Year 2 | Block 1
Lecture 1: Enforcement Against Acts of Member States
Note: Schutze presents a different structure of this. Refer to the book for his perspective.
Centralised Enforcement
● 258 TFEU: the Commission has full discretion in whether or not they want to take a
member state to court; completely conditional on “If the commission considers”.
○ Additionally, the ‘Commission may bring the matter to CJEU' – This is because
the Commission is not a big institution, and therefore can only deal with the
handful of cases they deem most important.
● Commission v Luxembourg & Belgium: Proceedings were initiated because Luxembourg
(L) and Belgium (B) supposedly violated a particular EU law. L and B argued that the
Commission (C) couldn’t bring these claims, because C has violated a law first. This is
based on the international principle that, if one party did not follow an (international) law,
the other party may also leave its obligations behind regarding that law (when in respect
of C). Therefore, L and B claimed they didn’t need to comply with C.
○ CJEU disagreed with this argument. The treaty is not limited to creating rights
and obligations, and also provides the bases for the procedures needed to invoke
EU law. Therefore, the treaties also have a few provisions on claiming a breach
of EU law, which contains specific judicial procedures for this.
○ Therefore, general principles of international law cannot be invoked in EU law. It
would lead to major discrepancies in what laws are and are not followed,
disrupting the entire purpose of the EU. Therefore, L and B cannot give up their
obligations.
○ This judgement is relevant even outside of 258 TFEU: if one state doesn’t comply
with a law, another state will decide not to, either, and soon enough no one is
obeying anything.
● There is a very concise procedure put in place within 258 TFEU:
○ 1: Informal / pre-contentious stage → The commission “considers” that a
member state has failed an obligation under the treaties.
○ 2: Formal notice + member state reply → the commission gives the member
state an opportunity to tell their perspective through providing the Commission
with “observations” as to the situation.
○ 3: Reasoned opinion → After having given the member state the above
opportunity, the Commission delivers a “reasoned opinion” to the state, which
details the position of the Commission on the matter.
○ 4: Referral to the Court → If the member state has not complied with the
opinion in the provided time and the Commission finds it necessary, it may bring
the matter to the CJEU.
, ● 259 TFEU: the procedure is more or less the same, though it's a matter of a member
state initiating action against another member state. Despite this, the provision still
provides for the involvement of the Commission (259(2)).
● Austria v Germany: This case regarded the discriminatory road use charge Germany
had in place.
● However, overall, the procedure in 259 TFEU is not often used: member states are not
often inclined to bring blame on other member states, as it will lead those other states to
subsequently look into the first state for their mistakes — leading to unnecessary issues
for everyone involved.
● Possible outcome of 258 and 259 TFEU is what is mentioned in the first paragraph of
both: a (potential) “failure to fulfil obligations under the treaties”
● Commission v Belgium: the court has no patience for cases based on internal political
problems. In both EU and international law, the state is seen as a unitary entity.
Therefore, it doesn’t matter which body within a state has breached EU/International law
— it is seen simply as a breach by the state.
● 260 TFEU: Obligates member states to comply with CJEU rulings.
○ 260(1): if the CJEU finds a member state is not complying with their treaty
obligations, that state is required to “take the necessary measures to comply
with the judgement”
○ 260(2): If (specifically) the Commission finds that the member state has not done
this, it may bring the case to the CJEU again and specify a lump sum or
penalty payment to impose on the state.
○ 260(3): the Commission, if it so desires, can impose a lump sum / penalty
payment immediately if the member state did not fulfil its obligations in
“transposing a directive adopted under legislative procedure.”
● 7 TEU: a provision managing the enforcement of 2 TEU (core EU values and aims).
● These values are very important, but also very abstract. Treaty drafters did this
intentionally with the controversial values.
○ Lex specialis means that, in practice, 7 TEU is the provision applied before 2
TEU.
● 7 TEU also places enforcement in the political, rather than judicial, sphere. About
starting a dialogue between EU institutions and member states.
○ 7(1): Council acting by 4/5th majority, alongside gaining the European
Parliament’s consent, in determining whether there is a serious breach of 2 TEU
by a member state.
○ 7(2): The European Council needs to act by unanimity, again with the consent of
the European Parliament, to determine a serious and persistent breach.
■ Note: This has never happened, because member states always team up
and support each other, leading to such a vote always being blocked in
one way or another.
