Each Member State is responsible for the implementation of EU law (adoption of implementing measures before a specified deadline, conformity and correct application) within its own legal system. Under the Treaties (Article 258 of the Treaty on the Functioning of the European Union (TFEU); Article 106a of the Euratom Treaty), the Commission of the European Communities is responsible for ensuring that EU law is correctly applied. Consequently, where a Member State fails to comply with EU law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, where necessary, may refer the case to the European Court of Justice.
The Commission takes whatever action it deems
appropriate in response to either a complaint or
indications of infringements which it detects
itself. Non-compliance means failure by a Member
State to fulfil its obligations under EU law. It
may consist either of action or omission. The
term State is taken to mean the Member State
which infringes EU law, irrespective of the
authority - central, regional or local - to which
the compliance is attributable.
Under the non compliance procedure started by the Commission, the first phase is the pre litigation administrative phase also called “Infringement proceedings” The purpose of this pre-litigation stage is to enable the Member State to conform voluntarily with the requirements of the Treaty. There are several formal stages in the infringement procedure. The Commission may first have to carry out some investigation, namely when infringement procedures are launched further to a complaint.
The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations on an identified problem regarding the application of EU law within a given time limit.
The purpose of the reasoned opinion is to set out the Commission’s position on the infringement and to determine the subject matter of any action, requesting the Member State to comply within a given time limit. The reasoned opinion must give a coherent and detailed statement, based on the letter of formal notice, of the reasons that have led it to conclude that the Member State concerned has failed to fulfil one or more of its obligations under the Treaties or secondary legislation. Referral by the Commission to the Court of Justice opens the litigation procedure.
In this respect, the Commission must point out that, in accordance with the established case-law of the Court of Justice, it enjoys a discretionary power in deciding whether or not to commence infringement proceedings and to refer a case to the Court. The Court has also acknowledged the Commission's power to decide at its own discretion when to commence an action.