Enforcing Previous Judgments Of The Courtroom Of Justice

By Steve Peers

The Court of Justice of the European Union (CJEU) has lately delivered an interesting judgment concerning the so-called 'infringement procedure', which is the organization for enforcing European Union police pull withdraw inwards the European Union courts. This organization runs inwards parallel to the physical care for of enforcing European Union police pull via the national courts (see the previous post). The details are laid out inwards Article 258 of the Treaty on the Functioning of the European Union (TFEU), which provides that the Commission tin convey actions to the Court of Justice against Member States which accept allegedly breached European Union law.

But what happens if Member States do non comply amongst those rulings? There mightiness survive follow-up inwards the national courts. Also, in that location is a process, laid out inwards Article 260 TFEU, for the Commission to convey a farther activity to the Court of Justice against a Member State which has non implemented an infringement ruling against it. If the Court of Justice agrees amongst the Commission, it may impose a lump amount and/or a punishment payment against that Member State. The punishment payment is charged at regular intervals, for equally long equally the Member State has non complied amongst the master copy judgment. For to a greater extent than on this, encounter my 2012 article inwards European Public Law.

Once the Member State has indisputably complied amongst the master copy judgment, or is indisputably not complying amongst it, its liability to pay the punishment payment or non volition survive perfectly clear. (There mightiness survive issues if the Member State refuses to pay the sums due, or if the Commission waives that Member State's obligation to pay, but let's move out them aside). But what happens if in that location is a dispute close compliance amongst the master copy judgment? The Member State inwards query is contestation that it has straight off fully complied amongst the judgment, but the Commission is contestation that it has not.

This form of work is non unique to European Union law: approximately may retrieve 1 twist inwards the 'banana saga', when the European Union claimed that it had complied amongst rulings of the World Trade Organisation (WTO) against it, piece the USA claimed that it had not. In the absence of clear rules inwards the WTO's Dispute Settlement Understanding on this point, the WTO bodies had to arts and crafts an advertising hoc solution.

Equally in that location are no clear rules governing this scenario inwards European Union law, thus the European Union General Court had to arts and crafts them dorsum inwards 2011, when Portugal argued that the Commission had wrongly sent it a need for a punishment payment, whereas it had already complied amongst the master copy judgment against it, which concerned its breach of an European Union Directive on world procurement (Case T-33/09 Portugal v Commission). The General Court agreed amongst Portugal, ruling that inwards this scenario the Commission could non just need to a greater extent than punishment payments, but had to laid out a wholly novel infringement physical care for from scratch.

The Commission appealed this judgment to the Court of Justice (Case C-292/11 P Commission v Portugal), but inwards its judgment that Court upheld the General Court's judgment. In the Court's view, the obligation for Portugal arising from its case-law was to repeal a exceptional law, in addition to Portugal had done so. There was a replacement national law, which the Commission claimed even thus violated European Union obligations, but the Commission had to convey novel infringement proceedings from scratch to found that this was a breach of European Union law.

The start ground for the Court's ruling was that it had exclusive jurisdiction to dominion on whether a Member State had breached European Union law. Neither the Commission nor the General Court could encroach on this jurisdiction. It would also survive problematic because the Court of Justice would survive express to reviewing the legal conclusions of the General Court, beingness unable to examine its findings of fact.

Also, giving the Commission the powerfulness to determine whether Member States had fully complied amongst Article 258 judgments or non would impinge upon the procedural rights which Article 258 sets out for Member States, namely the possibility to dispute the Commission's allegations at pre-litigation stage.

Comments

The case-law of the CJEU is oft criticised, sometimes justifiably, for prioritising the effectiveness of European Union police pull inwards a higher house all else. But amongst keen respect, this judgment tin survive criticised for precisely the contrary reasons. It just makes it also slow for a Member State to supercede a national police pull which breaches European Union police pull amongst a novel police pull which breaches European Union police pull nearly equally much equally the onetime 1 (I am assuming that the judgment would non apply if the novel police pull had exactly the same content as the onetime one, for that would survive genuinely absurd).

If a Member State does this, the Commission tin no longer collect punishment payments, unless it tin found the breach all over 1 time to a greater extent than yesteryear bringing proceedings 1 time to a greater extent than nether Article 258 in addition to and thus Article 260. And when this instant circular of proceedings concludes years later, what is to halt the Member State making approximately other pocket-sized alter to its national law, compelling the Commission to start Article 258 proceedings a tertiary fourth dimension if it wishes to (re-)establish the continuing breach?

The Court never examines the number of effectiveness, although the Commission had raised it. As for the reasons which the Court does give, it can't actually survive said that the Commission or General Court would survive encroaching upon the Court of Justice's exclusive jurisdiction equally regards infringement proceedings, since such a illustration would solely arise inwards the start house after a start circular of judgments nether Articles 258 in addition to 260.

Nor is it convincing to fighting that Member States' procedural rights would survive impinged: they could practise those rights inwards total when the master copy Articles 258 in addition to 260 proceedings were brought, in addition to they would accept the correct to challenge a Commission determination declaring that they were even thus inwards breach of the master copy judgment of the Court of Justice.

Finally, equally for the business office of the Court of Justice on appeal, it would accept been just equally plausible to dominion that the query of whether a Member State had complied amongst a judgment of the Court of Justice was an number of law, non fact, in addition to thus tin survive fully reviewed yesteryear the Court of Justice on appeal.

Much of the Court's occupation concern is jurisdictional, in addition to thus would survive addressed if jurisdiction over infringement proceedings were transferred to the General Court. There would survive no require to meliorate the Treaties inwards gild to do this; an amendment to the Statute of the Court of Justice, which tin survive adopted yesteryear way of the ordinary legislative procedure, would suffice.

Of course, such a alter inwards the EU's judicial architecture is undesirable equally long equally the General Court is overworked. Yet its workload could survive alleviated if to a greater extent than judges were appointed to it. The Court of Justice has suggested this, but its proposal is blocked inwards the Council, due to squabbles close which Member States would larn the extra judges. So peradventure in that location is a 'hidden agenda' to this judgment?

Barnard & Peers: chapter 10

Share this post