Riassunto esame Diritto dell'Unione Europea, Prof. Dani Marco, libro consigliato An introduction to the EU legal order, Muir

4.2 CENTRALISED COMPONENTS OF THE EU’S DECENTRALISED

ENFORCEMENT MACHINERY

EU institutions

1. they may decide themselves to specify how to achieve the effective protection and even

enforcement of EU rights

2. in certain policy areas, they also have advanced enforcement powers

EU legal order→ unless such specific rules exist though, its main characteristic is that it relies on

implementation and enforcement at the national level

>>> it is a model that relies on a sophisticated system of centralized monitoring to ensure the

smooth functioning of the EU legal order

4.2.1 WHO IS IN CHARGE OF CENTRALISED MONITORING?

European Commission→ the “Guardian of the EU Treaties”

The Commission shall promote the general interest of the Union

>>> Article 17(1) TEU→

and take appropriate initiatives to that end. It shall ensure the application of the Treaties,

and of measures adopted by the institutions pursuant to them. It shall oversee the

application of Union law under the control of the Court of Justice of the European Union…

1. it monitors, reports and engages in dialogue with national authorities on the

implementation of EU law

2. it may commence legal proceeding against them before the Court of Justice

>>> the Court of Justice of the European Union shall “ensure that in the

interpretation and application of the Treaties the law is observed” (Article 19(1),

subparagraph 1, TEU)

Member States

1. they may monitor each other by commencing legal proceedings before the Court of Justice

2. national courts before which private parties are litigating can benefit from the guidance of the

Court of Justice

procedures provided for in the EU Treaties + there are a multitude of non-judicial problem-solving

mechanisms to enhance compliance with EU law

the last word on any dispute related to the interpretation and application of EU law will be given by the

Court of Justice of the European Union

4.2.2 INFRINGEMENT ACTION→ the subject matter of the infringement procedure is the failure of a

Member State to comply with EU law

>>> infringements by private parties are only of interest if the Member State has failed to

sufficiently enforce EU law

4.2.2.1 PROCEDURE INITIATED BY THE COMMISSION

Article 258 TFEU→ If the Commission considers that a Member State has failed to fulfil an

obligation under the Treaties [1], it shall deliver a reasoned opinion on the matter [3] after giving

the State concerned the opportunity to submit its observations [2].

If the State concerned does not comply with the opinion within the period laid down by the

Commission, the latter may bring the matter before the Court of Justice of the European Union [4].

ADMINISTRATIVE VERSUS JUDICIAL PHASES

 1. Commission→ it can only initiate the procedure if it considers that there has been

an infringement of EU law (it can learn about the infringement through various

sources of information)

>>> the Commission is not bound by the Treaty to pursue all findings of

infringement→ it decides which problems to treat as a matter of priority,

and regularly seeks to shed light on its approach

>>> focus on most important infringements→ ex. those which

obstruct the implementation of important Eu policy objectives;

those which risk undermining the four fundamental freedoms;

failure to communicate transposition measures; where those

measures have incorrectly transposed directives

>>> when assessing the existence of an infringement of EU law by a

Member State, the Commission can adopt a generous approach to the

entities that may trigger liability on the part of the national administration,

or the legislator

>>> Article 258 TFEU may be triggered by acts of the national highest

courts, or where action on the part of the government is insufficient to

address frequent and serious incidents caused by private parties in breach

Angry farmers’

of EU law (ex. case)

2. Commission (before starting the first stages of an infringement procedure)→ it

shall give the Member State concerned an opportunity to submit observations

>>> informal approach + voluntary compliance by the Member State

>>> Member State is not responsive→ first formal document

(“letter of formal notice”) which establishes the scope of the

infringement and requests further information from the country

concerned (usually within a period of two months)

3. “reasoned opinion”→ second formal document sent by the Commission when the

letter of formal notice is unsuccessful

>>> details on why the Commission considers that the Member State is

breaching EU law and requests compliance + it also demands that the

Member State inform the Commission of the measures taken (within a

period of two months)

4. continued non-complianc