Transcript Slide 1
The infringement procedures – fines for noncompliance* Dr. Günter Wilms LL.M. Member of the European Commission’s Legal Service *The opinions expressed are personal and do not represent the ones of the Commission 1 I. Introduction • EU community of law • System of legal protection of the essence (f.i.: judgment of 3 September 2008, case C-402/05 P und C-415/05 P. Kadi/Council and Commission, para. 281) 2 I. Introduction • Role of the Court of Justice: – Ensure that the law is observed (Article 19 TEU) • Article 17 TEU → the Commission “guardian of the Treaties” Article 258 TFEU : → 1st infringement procedure Article 260 TFEU: → 2nd infringement procedure, in case of non/bad execution of a judgment 3 II. Infringement Procedure, General Pre-litigation phase: - Opening of the case (ex officio or following a complaint) Pilot Phase Letter of Formal Notice Reasoned Opinion Litigation phase: • 1st Infringement: Art. 258 TFEU • 2nd Infringement: Art. 260 TFEU 4 II. Infringement Procedure, General: Pre-litigation phase • Framework: Art. 4(3) TEU: obligation of MS to cooperate with the Commission • Letter of Formal Notice • Reasoned Opinion – defines the subject-matter of the dispute – fixes a time limit within which the MS must comply (2 months) • Sets the frame (time-wise and content-wise) for the litigation phase 5 II. Infringement Procedure, General Litigation Phase: • Written (application, defence, reply, rejoinder) and oral (hearing) If MS condemned: • (Art. 260(1) TFEU, special expression of duty to cooperate loyally Art. 4(3) TEU): – MS must take the necessary measures to comply with the judgement immediately 6 Environment and taxation account for almost half of the infringement proceedings Direct taxation 132 cases = 13.2% Indirect taxation 102 cases = 10.2% Water protection and management 66 cases = 6.6% Air transport 58 cases = 5.8% Waste management 55 cases= 5.5% Services 54 cases = 5.4% Energy markets and networks 52 cases = 5.2% Public procurement 48 cases = 4.8% Justice (incl. Union citizenship and equal treatment) 44 cases = 4.4% Health and consumers 41 cases = 4.1% Social security schemes and free movement of workers 41 cases = 4.1% Free movement of professionals 36 cases = 3.6% Atmospheric pollution 34 cases = 3.4% Working rights and conditions 31 cases = 3.1% Inland transport 30 cases = 3.0% Free movement of goods and market surveillance 30 cases = 3.0% Environmental impact 28 cases = 2.8% Information society and media 27 cases = 2.7% Financial services 17 cases = 1.7% Free movement of capital 15 cases = 1.5% Maritime transport 10 cases = 1.0% 0 20 40 60 80 Number of pending cases 100 120 140 7 Number of infringement proceedings by Member States EFTA 20 100 15 Number of pending cases 10 5 75 16 10 NO IS 0 2 LI 50 . EU average: 37 pending cases 25 101 81 79 75 71 54 50 46 44 43 35 35 31 24 24 22 22 21 21 21 18 17 17 14 13 12 10 0 BE EL IT ES FR PT DE UK PL NL IE SE AT BG HU RO SK CZ LU DK MT CY SI FI LV EE LT red = increase in the number of pending cases since November 2010 (in Scoreboard n°22) dotted lines = decrease in the number of pending cases since November 2010 (in Scoreboard n°22) 8 III. Second Infringement: Sanctions • Sanctions for failure to comply with the first judgment: the Art. 260 TFEU procedure – Case law – Calculation of lump sums and penalty payments • Changes introduced by the Treaty on the Functioning of the European Union : new Art. 260 (3) TFEU 9 III. Second Infringement: Art. 260 (2) TFEU Failure to comply • Pre-litigation – No reasoned opinion – Commission shall specify the amount of the lump sum or penalty payment – Must be appropriate in the circumstances 10 III. Second Infringement: Art. 260(3) TFEU New • Failure to notify measures transposing a directive • Commission may propose penalty payment or lump sum already in “first infringement” • Court bound by the Commission’s proposal as a ceiling 11 III. Second Infringement: History • Until 2002 the COM asked the Court only to impose daily penalty payments • Result: MS complied only at a late stage • Purpose of financial sanctions was re-examined 12 III. Second Infringement: Purpose Objectives of two sanctions → complementary: • Penalty payment (Persuasive function): → end an infringement ASAP after the 2nd judgment • Lump sum (Dissuasive function) → effects on public and private interests caused by the failure to comply with the 1st judgement 13 III. Second Infringement: Precedents • C-304/02 COM v France cumulative use: - Breach of Community law - has continued for a long period and - is inclined to persist (par. 82) - In the concrete case: • Penalty payment of EUR 57.761.250 for each period of 6 months • Lump sum of EUR 20.000.000 14 III. Second Infringement: Lessons learned • Practical consequences of C-304/02 COM v France: - COM includes now, in general, in its applications to the Court a specification of: » both the penalty payment by day of delay after the delivery of the judgement under Art. 260 TFEU » and a lump sum penalising the continuation of the infringement between the first judgement and the one delivered under Art. 260 TFEU 15 III. Second Infringement: Communications by the Commission • Purpose of the communications – Legal certainty – Proportionality and equal treatment – Deterrent effect → encourage early compliance 16 Calculation of sanctions (SEC 2011/1024 of 01/09/2011; principles: SEC 2005/1658 of 09/12/2005) • Criteria: 1. Seriousness of the infringement 1. 2. Duration of the infringement 2. 3. Sanction deterrent for further infringements 3. Respect of proportionality principle (in particular) • Sanction has to be appropriate in case of partial compliance Progress made towards compliance must be taken into account (several infringements separate sanctions; reduction for progress made) 17 Calculation of sanctions (SEC 2011/1024 of 01/09/2011; principles: SEC 2005/1658 of 09/12/2005) • Standard flat rates: • for daily penalty payments: • 630€/day • x coeff. for seriousness from 1 to 20 x coeff. for duration between 1 and 3 x factor ‘n’(→ GNP&votes in Council) for lump sum: • 208€/day x coeff. for seriousness from 1 to 20 x factor ‘n’(→ GNP&votes in Council) x number of days between 1st judgment and compliance or 2nd judgment • Minimum lump sum: • Between 314.000€ (EST) and 11120.000€ (GER) 18 NEW ART. 260(3) TFEU • Raison d’être • Stronger incentive to transpose directives within deadlines • Help EU citizens to enjoy the rights conferred by these directives at an earlier stage • Respect for the legislator 19 Infringement proceeding for non-conformity as percentage of Internal Market directives (as of 1 May 2011) All statistics from: SEC(2011) 1128 final Internal Market Scoreboard n°23, 29.9.2011 2% 1% 0.3% 0.3% 0.5% 0.5% 0.5% 0.5% 0.5% 0.6% 0.7% 0.7% 0.8% 0.8% 0.8% 0.9% 0.9% 0.9% 1.0% 1.0% 1.0% 1.1% 1.2% 1.5% 1.6% 1.6% CY 0.3% 0% 0.2% 0.1% EU average: 0.8% MT FI NL RO LV LT DK EE LU BG AT IE DE HU SI SK SE CZ ES PT UK EL FR BE IT PL 20 NEW ART. 260(3) TFEU • Features of this instrument: Already in first infringement lump sum and / or penalty payment may be imposed Court will not exceed the amount specified by the Com. 21 NEW ART. 260(3) TFEU • Communication on the Implementation of Art. 260(3) TFEU [O.J. C 12 of 15/01/2011 p. 1] • Same principles as Art. 260(2) TFEU • 2 possible cases: – Total failure to notify transposition measures – Partial notifications of these measures 22 NEW ART. 260(3) TFEU • Coefficient of duration: – Starting point: day following the expiry of the transposition period • Proposal of the COM is not binding for the Court • But: Court cannot go beyond 23 Case Parties Substance Sanction imposed C-387/97 Com./Greece Waste24 20.000 Euro per day C-287/01 Com./Spain Quality of bathing waters 624.150 Euro per cent for affected bathing waters C-304/02 Com./France Prohibition to catch small fish 57.761.250 Euro per 6 months of non-compliance and 20.000.000 Euro lump sum C-177/04 Com./France Non-transposition of product safety directive 31.650 Euro per day of non-transposition C-119/04 Com./Italy Foreign language teachers Condemned for non-compliance but no sanction C-503/04 Com./Germany Waste treatment Braunschweig Condemned for non-compliance but no sanction C-70/06 Com./Portugal Public procurement 19.392 Euro per day of non-compliance C-121/07 Com./France GMOs 10.000.000 Euro lump sum C-369/07 Com./Greece Subsidies fpr Olympic Airways 16.000 Euro per day of non-compliance and 2.000.000 Euro lump sum C-457/07 Com./Portugal Free circulation of construction products Rejected C-568/07 Com./Greece Optician-stores 1.000.000 Euro lump sum C-109/08 Com./Greece Gambling machines 31.536 Euro per day of non-compliance and 3.000.000 Euro lump sum C-407/09 Com./Greece Compensation of crime victims 3.000.000 Euro lump sum C-469/09 Com./Italy Recovery of illegal State aid • Penalty payment 30.000.000 Euro per 6 months x % of unlawful aid not recovered 30.000.000 Euro lump sum 24 30 EU average: 24.7 months 20 30.8 29.8 29.1 29.1 28.4 28.4 27.9 27.1 26.9 26.2 26.1 24.7 23.8 22.7 22.4 21.7 20.5 20.0 19.9 19.7 17.1 15.4 15.0 14.1 11.5 0 33.2 10 34.7 Duration since sending of letter of formal notice (in months) Average duration of infringement proceedings (from one year to almost three years) FI 10 CZ 16 DK 19 IE 24 DE 36 UK 42 PT 30 SE 28 NL 35 FR 58 HU 20 ES 57 PL 35 EL 63 BE 85 LT 10 IT 65 EE 11 MT 14 SK 21 BG 24 AT 18 SI 14 LV 13 RO 22 CY 15 LU 15 Number of cases per Member State 25 Cases from most Member States are still open more than 12 months after the Court ruling 20 EU average= 17.4 months 15 10 21.1 20.6 18.2 17.3 16.2 16 15.9 14.6 14.2 14 14 12.1 10.4 9.8 9 6.1 4.1 0 22.4 5 24.2 Duration between judgement of the Court and closure (in months) 25 FR 28 ES 41 IE 17 AT 18 PT 14 IT 52 EL 26 NL 13 LU 21 BE 18 SE 10 DE 28 UK 20 FI 12 DK 3 PL 6 LT 2 SK 1 MT 2 Number of cases 26 CLOSING STATEMENT • For it is only through a legally stable environment, based on the rule of law, democratic principles and fundamental rights, that the confidence of citizens, of partners and investors can be gained and upheld. Commission President Barroso, Plenary debate of the EP Strasbourg, 18th January 2012 27