Types of Breaches of EU Law

Art 258 only contains a very general description of MS violation: can include actions/omissions, and failure to implement any rule/standard which is an effective part of EU law – Dentist Airdrie

 

 

  • Breach of the obligation of sincere cooperation under art 4(3) TEU

 

    • Comm v Netherlands, 1982: Comm alleged that MS failed to supply info on its compliance, as required by the Directive, and due to this failure, it was entitled to presume that MS failed to implement the necessary national measures. But in application to ECJ, breach identified was failure to implement.
      • ECJ rejected Comm’s argument – it is Comm’s responsibility to prove that MS did not fulfil obligation, and Comm cannot rely on presumption in doing so.
      • Held that all MSs have obligation under art 4(3) TEU to facilitate achievement of Comm’s tasks (including Comm’s duty to monitor compliance with the Treaty).
      • Though in Comm v Greece, 1988: ECJ held that once Comm has produced sufficient evidence, MS cannot simply deny allegations, but has to contest it in a substantive way.  Also, in Comm v Ireland, 1999: established that Comm doesn’t have to show harmful effects of the nat legislation
    • Where MS fails to respond at pre-litigation stage, it will be hard for Comm to ascertain if there is breach. Hence, Comm will usually initiate separate enforcement proceedings on basis of breach of the obligation of cooperation.
    • CONTENT: not just positive obligation on MS not to violate EU law, but also to prevent others (eg. Citizens) from frustrating provisions of the treaty.
      • Comm v France, 1997 – and the Dentist Airdrie strawberries case
      • Comm v Greece, 1989: obligation will be breached if MS fails to penalise those who infringe EU law in same way as those who infringe nat law – effectively, proportionately and dissuasively.

 

  1. Inadequate implementation of EU law
    • Comm v France, 1974: French legislature failed to repeal nat provision on racial make-up of ship crew, claiming verbal directions given to naval authorities sufficed to comply with EC law. ECJ rejected!
    • For directives: not directly applicable = always incumbent on MS to implement them fully.
      • Fact that they might have vertical/indirect DE does not reduce obligation on MS.
      • Mere admin practices will not suffice because they 1) can be altered at will by administration; 2) lack sufficient publicity.
        • Comm v Germany, 1985: German govt argued that general objection to admin practices were inapplicable here, as the admin practice couldn’t be changed arbitrarily, on the facts, and had been given sufficient publicity. ECJ agreed!
        • Held that implementation of directive does not necessarily require legislative action, as long as the 2 criterion are fulfilled.
      • Also possible that ECJ might hold ‘indirect effect’ of directive would require national court to construe relevant national law in light of wording and purpose of the Directive, so as to give effect to its aim – (proceedings by Comm against UK, relating to Product Liability Directive)

 

  • If national legislation has been subject to differing judicial interpretation, this is not clear enough for compliance with EU law!