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Legal Enforcement

The infringements procedure

(i) Infringement action under Article 258 of the Treaty on the Functioning of the European Union

The infringements procedure comprises several stages and is set out formally in Article 258 of the Treaty on the Functioning of the European Union (TFEU). The European Court of Justice has recognised that the Commission has discretionary powers in this area. For example, it may consider that there is sufficient evidence of a breach of Community environment law, but that legal enforcement action may not be appropriate or necessary if the Member State has undertaken to remedy the breach. If the European Court of Justice finds a Member State to be in breach of Community environment law, the Member State concerned must then take the measures necessary to comply with the judgement of the European Court of Justice.

(ii) Interim measures under Article 279 TFEU

Reference here should also be made to Article 279 of the TFEU which allows the Commission to request that the European Court of Justice orders interim measures before judgement is given. As the time between a case being lodged with the Court under Article 258 TFEU and judgement is often over 2 years, irreversible damage can be done in the interim if there is no requirement for Member States to be held back from damaging activities. The order of the European Court of Justice will usually last until final judgement is given in the main action instigated under Article 258 TFEU. In recent years, the Commission has three times invoked Article 279 of the TFEU in cases handled by the Environment Directorate General. In cases C-503/06, Commission v. Italy and C-76/08, Commission v. Malta, the Court ordered the Member States to stop illegal hunting activities. In case C-193/07, Commission v. Poland, the Commission applied to halt the imminent construction of a road and compensatory tree planting both of which threatened important nature habitats. Whilst this is a highly effective tool, it is one to which the Commission will only have recourse in exceptionally urgent and serious cases.

(iii) Action under Article 260 TFEU

If a Member State fails to comply with a judgement of the European Court of Justice, it is open to the Commission to take further action against that Member State under Article 260 TFEU. If the matter is referred to the European Court of Justice, and it is found that the Member State has not complied with the initial judgement, the Court may impose a fine on the Member State, in the form of a lump sum or penalty payment or both. The Commission issued guidelines on the application of the old Article 228 of the EC Treaty (which has now been replaced by the new Article 260 TFEU) indicating in particular that the Commission will ask for both a lump sum payment and a daily penalty in such cases. These guidelines are now being revised to take account of the amendments to the penalty procedures introduced by the new Treaty in the new Article 260 TFEU. The new Article now includes the possibility for the Commission already to request penalties against a Member States in the first judgment under Article 258 TFEU where the case concerns that Member States failure to adopt implementing legislation for a new Directive within the deadline, so called non-communication cases.