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Training package on EU Environmental Assessment Law – Focus on Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) Directives

Module 4: The role of the national judge in the European Judicial System and the Procedures of the European Court of Justice (CJEU)

Procedures in the Court of Justice: Infringement procedure

According to Article 17 (1) 2nd sentence TEU the Commission shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. The infringement procedure provided for in Article 258 to 260 of the TFEU is most important legal instrument used to achieve this objective.

The subject matter of the infringement procedure is the failure on the part of a member state to comply with European Union law. Infringements by private parties are only of interest if the member state has failed to sufficiently enforce European Union law. There are three main groups of infringements:

  1. non-transposition of Directives or failure to communicate transposition,
  2. non-conformity of transposition and
  3. misapplication of European Union provisions.

Non-conformity and misapplication cases are potentially the most interesting as sources for the interpretation of European Union law.

It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a member state and, as the case may be, because of what conduct or omission those proceedings should be brought. The Commission consequently has a discretion in this regard which excludes the right for individuals to require it to adopt a specific position (see Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraph 11, Case C 445/06 Danske Slagterier [2009] I 2119, paragraph 44). In the field of the environment the Commission has traditionally been very active. Therefore, there is a (comparatively) high number of relevant judgments (For a critical appraisal see Krämer, Environmental judgments by the Court of Justice and their duration, Journal for European Environmental and Planning Law 2008, 263).

Procedurally an infringement procedure requires two steps before the Commission can apply to the CJEU:

  1. a “letter of formal notice”, which provides an opportunity for member states to submit observations and
  2. a reasoned opinion.

After each step the member state can respond to the Commission’s criticism within the time-limit specified – which is normally two months. If the member state cannot convince the Commission, the latter can apply to Court.

The Court action must not extend the subject matter of the case in comparison to the letter of formal notice and the reasoned opinion (see Case C-350/02 Commission v Netherlands [2004] ECR I-6213, paragraph 21). The case is decided on the basis of the factual situation at the end of the period laid down in the reasoned opinion (see Case C-221/04 Commission v Spain [2006] ECR I-4515, paragraph 23). Subsequent developments are irrelevant.

Article 260 (1) TFEU provides that the member state is required to take the necessary measures to comply with the judgment, where the CJEU finds that it has failed to fulfil an obligation under European Union law. If the member state fails to comply with this obligation the Commission can again apply to the CJEU under Article 260 (2) TFEU. The CJEU may impose on the member state a lump sum for the failure to comply in the past and/or a periodic penalty payment that is effective until compliance is achieved (see, for example, Case C 304/02 Commission v France (small fish) [2005] ECR I 6263, Case C 374/11 Commission v Ireland of 19 December 2012 (not published in the ECR)).


Developed by the Academy of European Law (ERA)