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INFRINGEMENT PROCEDURES IN THE EU

Coordination of infringement procedures

 

According to Article 49.j of the Rules of Procedure of the Government of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, No. 43/2001), the Ministry of Foreign Affairs (MFA) coordinates the drafting of positions of the Republic of Slovenia in infringement procedures, other than the infringement procedures instituted by the European Commission due to non-notification or overdue notification of directives transposed into the Slovenian legislation the coordination of which falls within the responsibility of the Government Office for Legislation.

 

When preparing written submissions sent by the Republic of Slovenia to the Court of Justice of the European Union, the MFA cooperates in legal proceedings with the competent ministries, government offices and the State Attorney's Office of the Republic of Slovenia.
 
The European Commission may institute an infringement procedure against a Member State on its own initiative or on the initiative of a third person, for alleged non-compliance with the acquis communautaire. The Commission as the guardian of the EU acquis provides for its full and correct implementation. In an infringement procedure, the Commission, before bringing an action before the Court of Justice of the European Union, establishes the degree and the seriousness of the infringement and the responsibility of the Member State concerned to remedy the infringement. If the action is commenced, the legal proceedings take place before the Court of Justice of the European Union or the General Court in Luxembourg. The Court ensures the compliance with and uniform application of the European Union law in all Member States, whilst in certain cases it may also rule on the rights of individuals.
 
Coordination of infringement procedures implies monitoring of all procedures instituted by the European Commission against the Republic of Slovenia in the case of non-compliance with the provisions of the acquis. Most procedures regarding non-compliance are brought to an end already during the infringement procedure; therefore a correct and timely response of Member States is of key importance. According to Article 49.m of the Rules of Procedure of the Government of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, No. 43/2001, 23/02 – Corr., 54/03, 103/03, 114/04, 26/06, 21/07 and 32/10), the Ministry of Foreign Affairs collaborates with line ministries and government offices in preparing Slovenia’s positions in the infringement procedures.
 
 
A brief description of the infringement procedure under Article 258 of the Treaty on the Functioning of the European Union and reference to the procedure of imposing a pecuniary sanction under Article 260 thereof
 
The infringement procedure is governed by Article 258 of the Treaty on the Functioning of the European Union (TFEU): ‘If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.  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.’

More detailed rules of procedure have been drawn up as the Commission’s internal rules or have been established by legal practice and/or case-law.
 
The Member State concerned must be given a chance in the proceedings to submit its observations (right of defence).  To this end, it is possible to hold negotiations and exchange written opinions; on the basis thereof the Commission finally delivers its reasoned opinion.
 
The infringement procedure itself consists of an informal and formal part. At the informal stage of the procedure, the Member State concerned and the Commission seek solutions to bring the infringement to an end. The informal part of the procedure is not compulsory and the Commission can decide whether to initiate it or not.  In order to intensify its informal contacts with the Member States, the Commission launched an EU pilot project in April 2008, aimed at providing a possibility to eliminate infringements of the EU law at the earliest stage possible, before even initiating an infringement procedure.

 

To facilitate communication between Commission’s services and the authorities of the Member States in the framework of this pilot project, a confidential web database was set up. The management of this system was made possible through a network of newly established contact points in the Commission services and in the Member States. The network ensures that cases are submitted to the competent authorities for their deliberation. The achieved progress and efficient and constructive use of the system are being regularly monitored. The role of the contact point in the Republic of Slovenia has been entrusted to the Ministry of Foreign Affairs.

 

The formal part of the procedure commences with the submission of a letter of formal notice, in which the Commission specifies the alleged non-compliance and states its concerns, while requesting the Member State to respond within the given period (usually two months).
 
If the Member State concerned and the Commission cannot reach an agreement on the alleged non-compliance and the Commission believes that the Member State has been infringing the EU law, the Commission addresses a reasoned opinion to the Member State in which it states the infringement and the deadline for its elimination. 
 
If the Member State does not comply with the reasoned opinion and fails to eliminate the infringement within the set period, the Commission may bring the matter before the Court of Justice of the European Union. The Court of Justice delivers a judgment stating whether there has been an infringement of the EU law. This is called a declaratory judgement.
 
Further developments depend on the Member State and its compliance with the judgment of the Court of Justice. If the Court of Justice finds that the Member State concerned has infringed the EU law and not complied with its judgment, it may impose a penalty payment on it. The Commission monitors the execution of a judgment and also proposes the penalty to be imposed on the Member State by the Court of Justice. Before submitting the matter to the Court of Justice and requesting the imposition of a penalty payment, the Commission must actually carry out a new infringement procedure – it must address a new letter of formal notice and issue a new reasoned opinion. The procedure of imposing a pecuniary sanction is regulated by Article 260 of the TFEU:

 

'If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.
If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.'

 

 

Coordination method in Slovenia

 

According to Article 49.m of the Rules of Procedure of the Government of the Republic of Slovenia, the positions in infringement procedures have to be adopted by the Slovenian Government. A draft position is prepared by the competent ministry or government office in cooperation with the MFA and the Government Legislation Office. The MFA usually convenes a coordinative meeting in relation to the drafting of the position on the matter.

 

The position of the Republic of Slovenia, endorsed by the Government, is then sent by the Government Legislation Office to the European Commission via an electronic database for infringement procedures (INFR).
 

 

Links:


European Commission


Court of Justice of the European Union


Secretariat-General of the European Commission

 

 

 

Contact: 
 
Department for General and Institutional Issues

 

 


(Last change: 23 December 2013)