The Shaping of Infringement Procedures in European Union Law: The Rights and Safeguards of the Defendant Member State

AuthorMarton Varju
Date01 September 2012
Published date01 September 2012
Subject MatterArticle
400 19 MJ 3 (2012)
M V*
e law on the rights and other safeguards available to the defendant Member State
in infringement procedures under Articles258 to 260 TFEU re ects the broader
considerations of e ective enforcement of EU law. In order to ensure that EU law is
followed by the Member States, the EU Commis sion within its broad discretionary powers
may employ di erent compliance strategies and conduct infringement procedures against
the Member States accordingly. As a result, the rights and other safeguards determining
the procedural position of the Member State concerned are inter preted to suit the needs
of di erent infringement procedures in their di erent procedural phases.  ey perform
di erent functions a s dictated by the compliance strategy employed by the C ommission
and respond to more strategic considerations in th e context of compliance in EU law
Keywords: compliance; di scretion of EU Commission; defence rights; e ective
enforcement; infringement procedu res
is article exa mines the law on the rights a nd other safeguards ava ilable to the defendant
Member State in infringement procedures. Our main contention is that this law, which
* Lecturer at t he Law School, University of Hu ll. Earlier ver sions of this paper were pres ented in an
international workshop on infringement procedures at the Faculty of Law, University of Debrecen,
Hungary (2008) a nd in a seminar organised by th e Ministry of Justice, Budap est, Hungary (2009). I
would like to say t hank you for the comm ents I received from the p articipant s of these events, a nd
especial ly from Prof. Ernő Várnay.
e Shaping of Infringement P rocedures in European Union L aw
19 MJ 3 (2012) 401
evolved in the absence of Treaty or other explicit lega l provisions, bears the mark of the
broader context of infringement procedures.  e relevant rights a nd safeguards, fam iliar
from other areas of European Union administrative law, answer to considerations
speci c to the enforcement of EU law again st the Member States, in par ticular, to the
general requirement of e ective enforcement which nece ssitates a combined application
of di erent compliance strategies i n these procedures.  is analysis of the relevant case
law of the Court of Justice of the Eu ropean Union reveals that t he law registers the
di erent demand s arising from the di erent compliance strategies .
Infringement procedures a gainst the Member States i n European Union law have
experienced a remarkable tra nsformation. In a process of gradual forma lization, a
process of ‘coming of age of infri ngement procedures’, they became ‘a common, fairly
transparent and hig hly technical ’ procedural avenue for the enforcement of EU law.1
eir formal dimensions were most visibly enhanced by the introduction of scal
sanctions and the subse quent legal developments relating to the application of the
sanction ing system.2 e a r mation of the rights of private complainants, supported by
the e ect ive intervention of the European Ombudsma n, and the increasing releva nce,
even dominance, of complaints in monitoring Member State compliance were further
elements in the consolidation of in fringement procedures.3
One of the most signi cant changes was the proli feration of procedural rights a nd
other safegua rds available to the defendant Member State. Member States now have broad
defence rights, and they may rely on the double jeopa rdy rule and the requi rement of
legality in t he sanctioning phase of the procedure.  i s sug gest s a mo re ro bust regu lat ion
of the position of Member States in a procedure which, beyond a mere skeleton of treaty
provisions, is governed largely by the disc retion of the European Commission pursuing
e ective enforcement within the general fr amework for compliance in EU law.
In searching for a de nition, infringement procedures could be described as procedures
in law with an objective cha racter, the pur pose of which is to obtain a declaration of the
infringement and ach ieve its termination by the Member State concerned .4 is reveals
little of the true nature of infringement procedures. Depending on the nature of the
1 L. Prete and B. Smu lders, ‘ e Coming of Age of Infringement Procedures, 47 CMLRev 1 (2010),
p.9–61 at 13.
2 I. Kilbey, ‘Financ ial Penalties u nder Art 228(3) EC: Excessive C omplexity?’, 44 CMLRev 3 (2007), p.743–
760; I. Kilbey, ‘ e I nterpretation of Art icle260 TFEU (ex 228 EC)’, 35 ELRev 3 (2010), p.370–386.
For a short summa ry on the position of complai nants, see P. Craig and G. de Búrca , EU Law (4
Oxford University Press, Oxford 2008), p.429–431. For a longer account, see R. Rawlings,Engaged
Elites, Citi zen Action and Institut ional Attitudes in Comm ission Enforcement’, 6 ELJ 1 (2000), p.4–28.
On the role of complaints i n monitoring compliance, s ee J. Tallberg, ‘Paths to Compli ance: Enforcement,
Management, and t he European Union’, 56 Internation al Organization 3 (2002), p.609–643 at 616–617.
See also, Com mission White Paper on E uropean Governa nce, COM (2001) 428  nal; Commission
Communication to t he European Parl iament and the Europe an Ombudsman on relat ions with the
complainant in re spect of infr ingements of Commun ity law, COM (2002) 141  nal; Commission
Communication on t he Better Monitori ng of the Application of Com munity Law, COM (2002) 725/4  nal.
4 K. Lenaerts e t al., Procedural Law of th e EU (Sweet and Maxwell, London 2 006), p.129.

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