19 Infringement proceedings against Member
+ ADDs 1-4
|28th Annual Report on monitoring the application of EU Law (2010)
|Document originated||29 September 2011
|Deposited in Parliament||12 October 2011
|Department||Foreign and Commonwealth Office
|Basis of consideration||EM of 31 October 2011
|Previous Committee Report||None
|To be discussed in Council||None planned
|Committee's assessment||Legally important
|Committee's decision||Cleared; further information requested
19.1 As in previous years, this annual report provides an overview
of key statistical data on the infringement proceedings the Commission
has brought against Member States under Article 258 TFEU (and
its precursor, Article 226 TEC) "for failure to fulfil an
obligation under the Treaties". Proceedings are brought by
the Commission either acting on its own initiative, or as a consequence
of complaints received from EU businesses and citizens.
19.2 In 2010, the acquis of the EU consisted of about 8,400
Regulations and nearly 2,000 Directives in addition to the primary
law (the Treaties).
Number of cases according to their origin
19.3 At the end of 2010 the infringement database contained nearly
2,100 active infringement cases. Compared with the same figure
for the end of the previous year (nearly 2,900 cases), the number
of ongoing proceedings fell by almost 30% in 2010. This is partly
due to the fact that new complaints and new own initiative cases
are registered and dealt with in either the CHAP or the EU Pilot
databases. The success rate for problem-solving in EU Pilot also
contributed significantly to the reduction in the number of infringement
proceedings for those Member States, which have participated in
EU Pilot since its implementation in April 2008.
19.4 At the end of 2009, 53% of the active cases
originated from complaints; this figure has decreased (by more
than 10%) to slightly more than 40% in 2010. 739 open cases (around
35% of all cases) originated from the Commission's own initiative
cases. This is less than the number in 2009 (925).
19.5 The Commission closed 987 complaint-based and
own initiative cases during 2010 (2009: 1,389). Most of these
closures (431 decisions) occurred before sending the letter of
formal notice to the Member State and came about because the Member
States took appropriate action in response to the Commission's
request to comply with EU law.
19.6 A further 312 cases were closed after sending
the letter of formal notice and before sending a reasoned opinion
to the Member State (2009: 341) and 130 after sending the reasoned
opinion but before referring the matter to the Court of Justice
(2009: 151). Thus, these figures show that in 88% of the closures,
the case did not reach the Court of Justice because Member States
corrected the legal problems raised by the Commission before it
would have been necessary to initiate the next stage in the infringement
NUMBER OF CASES ACCORDING TO MEMBER STATES AND POLICY
19.7 Italy is the Member State against which the
most infringement proceedings were ongoing by the end of 2010
(176 open cases), followed by Belgium (159) and Greece (157).
Malta, Lithuania and Latvia are the three Member States with the
lowest number of open infringements cases (25, 27 and 32 cases,
respectively). Italy and Greece were also the Member States against
which the most new infringement proceedings were started in 2010
(90 and 89, respectively), followed by the United Kingdom (75
new cases in 2010). The fewest new proceedings (19) were opened
against Lithuania in 2010; Denmark and Malta ranked second and
third with 22 and 25 new cases, respectively. And even though
Italy and Greece were able to close approximately 40% of their
new cases in the same year, they carried over the most new cases
to 2011 (49 and 50 cases, respectively). The number of cases to
be carried over was also relatively high for Poland and Spain
(40 new cases each). The smallest carryover took place for Malta
(8), Denmark (10) and Lithuania (11).
19.8 The three most infringement-prone policy areas
(environment, internal market and taxation) account for 52% of
all infringement cases. More than one fifth of all active cases
(444) are associated with environmental legislation, with internal
market and taxation cases (326 and 324, respectively) each amounting
to 15% of all infringements.
19.9 However it was not in any of the above three
policy areas that the most new infringement proceedings were opened
in 2010. It was in the sector of health and consumer protection
that most of the new cases (273) were opened, 254 being non-communication
cases. Dossiers relating to environment and internal market gave
rise to the second and third highest number in 2010 (229 and 191
cases, respectively). However, the Commission closed the majority
of the new non-communication cases on health and consumer protection
by the end of 2010, leaving only 62 active. By contrast, around
two thirds of the new proceedings were still open in the fields
of environment, internal market and transport (148, 131 and 116
cases, respectively), where the carry-over of new cases to 2011
was the highest.
19.10 The Commission concludes as follows:
"In general the number of ongoing infringement
proceedings decreased in 2010 compared with previous years. Although
at this stage it is not possible to identify all the reasons for
this tendency, one explanation is the setting up of EU Pilot,
which helps to clarify and solve satisfactorily some issues regarding
application of EU law raised by the Commission, thus putting an
end to problems without being necessary to launch infringement
proceedings. Environment, internal market and taxation legislation
remain at the top of the policy fields involved in infringements,
whilst issues related to environment, free movement of persons
and fundamental rights attracted the most petitions to the European
19.11 On average Member States had to transpose more
Directives in 2010 than in 2009 (111 as compared to 71 Directives).
In parallel, the Commission had to launch a considerably higher
number of non-communication cases in 2010 (855 cases) than in
2009 (531). Although more than half of these newly opened non-communication
cases were closed, 410 still remained unresolved at the end of
2010. So, together with the remaining 60 non-communication cases
accumulated from previous years, a total of 470 non-communication
cases were pending at the end of 2010.
19.12 This last figure represents a nearly 15% increase
in the number of open non-communication cases since the beginning
of 2010, when there were only 407 such cases.
19.13 The transposition process is managed most effectively
in Denmark and Malta (five open non-communication cases each),
whilst it takes more time in Italy (34 cases) and Poland (32 cases).
19.14 Very frequently, a large number of Member States
miss the transposition deadline for a given Directive. Once the
Commission opens the infringement proceedings, notification of
national measures increase sharply, which allows the proceedings
to be closed. Out of the 792 non-communication cases closed by
the Commission in 2010, 558 proceedings were closed after sending
a letter of formal notice and before sending a reasoned opinion
to Member States. Thereafter, further delayed transposition occurs
only in a minority of Member States.
19.15 The Commission says it will be able to deal
more effectively with long-term delays in implementation by invoking
Article 260(3) TFEU. This provision allows the Court to apply
financial sanctions at the stage of the first referral to the
Court under Article 258 TFEU. Previously, financial sanctions
for non-communication cases could only be applied in a two-stage
procedure, after a Member State had failed to comply with an earlier
judgment of the Court. The Commission hopes that this power will
contribute significantly to enhancing the timely transposition
of EU law by the Member States.
19.16 Transposition delays occur mainly in the fields
of environment (115 active cases), transport (104) and internal
market and services (78).
19.17 For EU environmental legislation, deadlines
are regularly missed by a large number of Member States, normally
resolved after the launch of infringement proceedings, and protracted
delays can be seen in a minority of Member States. An example
of particularly slow transposition is the Directive
on environmental liability with regard to the prevention and remedying
of environmental damage. Just four Member States transposed it
on time and the Court of Justice had to deliver judgments against
seven Member States.
19.18 Following periods of intense legislative activity
in 2009 and 2010, particularly in the field of financial services,
the Commission was faced with a sharp increase in non-communication
cases in this area of internal market regulation. Late transposition
was often due to the broad scope of the legislation concerned
or, in the banking sector for instance, where the EU set relatively
short deadlines for transposition (between one and 15 months)
because of the urgency of responding to the financial crisis.
19.19 Late transposition frequently affects transport
Directives, particularly those regulating road and maritime transport.
Member States often cited lack of sufficient expertise and resources
and complex internal decision-making processes in the Member States
as a source of delay. Member States also called for more technical
support from the Commission before the deadline for transposition.
19.20 Problems with late transposition are rare in
policy areas having a stable acquis of Directives (for
example agricultural policy). EU legislation in the fields of
enterprise and industry, employment and social affairs, as well
as indirect taxation are other areas for which no major difficulties
over timely transposition were observed.
19.21 The Commission concludes as follows:
"There are still clearly identified areas where
late transposition of Directives is a frequent pattern, such as
environment, internal market, transport and judicial cooperation,
fundamental rights and citizenship. The Lisbon Treaty has given
an additional instrument to the Commission that could help to
change this unsatisfactory situation (Article 260(3) TFEU)."
IMPROVED WORKING METHODS FOR THE MANAGEMENT OF CASES
RELATING TO THE APPLICATION OF EU LAW
19.22 With the introduction of CHAP in September
2009, the Commission now has an IT tool which is specifically
designed for the registration and management of complaints and
enquiries by European citizens on the application of EU law by
a Member State. CHAP ensures proper and timely assignment of complaints
to the competent Commission departments as well as systematic
feedback to the complainants in line with the 2002 Communication
on relations with the complainant regarding infringements of EU
19.23 4,035 cases were created in CHAP in 2010 (83%
complaints and 17% enquiries). The five Member States most concerned
are: Italy (12%), Spain (11.4%), Germany (9.5%), the United Kingdom
(7.5%) and France (6.9%).
19.24 52.5% of complaints were closed directly in
CHAP on the basis of a comprehensive response by the Commission
and a further 14% were closed on the grounds of lack of EU competence.
For 17% of the cases the examination continued via EU Pilot and
9% were transferred into infringement proceedings.
19.25 The EU Pilot scheme has been operating since
April 2008 with the aim of providing quicker and better answers
to questions raised by citizens or businesses and solutions to
those problems arising in the application of EU law. It is also
designed to improve communication and cooperation between the
Commission services and Member State authorities on the application,
implementation of EU law or the conformity of the law in a Member
State with EU law.
19.26 The Commission services can lodge enquiries
and complaints received from citizens and businesses as well as
own-initiative cases in EU Pilot. This includes issues raised
with the Commission in the European Parliament Petitions' Committee
or via a letter from a Member of the European Parliament.
19.27 Since its implementation, EU Pilot has proved
very positive and shows how the Commission and the participating
Member States are cooperating to find solutions that give full
and quick effect to EU law for the benefit of citizens and businesses.
The Commission examines every case and launches infringement proceedings
if no solution compatible with EU law is found. On 31 December
2010, 81% of the responses provided by Member States had been
assessed as acceptable by
the Commission while about 160 cases were transferred to the NIF
database in order to allow the Commission to launch infringement
proceeding by sending a letter of formal notice under Article
19.28 In 2008, 15 Member States volunteered to participate
in EU Pilot. Following the success of the project, the Commission
decided in its first EU Pilot Evaluation Report adopted in March
2010 to invite the remaining
12 Member States to join the project. At the end of 2010, three
further Member States joined the project.
19.29 The Commission concludes as follows:
"The Commission will develop further its databases
for the management of cases related to the application of EU law.
The Commission will explore the extension of EU Pilot as an instrument
of problem-solving and prevention to all Member States. The general
approach pursued by the Commission is to ensure systematic registration
of all complaints/enquiries on the application of EU law, to seek
swift problem-solving by using EU Pilot and, where necessary,
to launch and pursue vigorously infringement proceedings."
19.30 The report then covers "enforcement issues"
and "preventive measures", which are of less relevance
for the purposes of this Report.
The Government's view
19.31 In his Explanatory Memorandum, dated 31 October
2011, the Minister for Europe (Mr David Lidington) says that the
changes to infringement proceedings are a result of the implementation
of the Lisbon Treaty provisions. The amendments to Articles 258
and 260 TFEU (the latter in particular) speed up the infringement
process and give wider-ranging powers to the Commission, effectively
making it easier for the Court of Justice to impose sanctions
on non-compliant Member States. The UK, however, has to date never
been fined for an infraction, including failure to implement EU
19.32 The Minister comments that the EU Pilot scheme
aims to find quicker and better responses to enquiries and positive
solutions to complaints concerning questions on the correct interpretation,
implementation and application of EU law and that the UK participates
in it voluntarily.
19.33 Finally, the Minister says that better and
swifter enforcement of EU law is in the best interest of the UK
in the context of ensuring consistency across all Member States.
19.34 This is the first annual Commission report
on infringement proceedings that we have decided to report fully
to the House.
19.35 We do so for the useful insight it gives
into how many infringement proceedings were brought in 2010, against
which Member States, covering what areas of policy and, finally,
how many are resolved before they reach the Court of Justice.
19.36 We note that the UK followed Greece and
Italy with the third highest number of infringement cases started
against it in 2010 (90, 89 and 75 respectively). Whilst we also
note that to date the UK has never been fined for an infringement,
including failure to implement EU law, we would be grateful to
the Minister for an explanation of why so many infringement cases
were started against the UK in 2010, and a broad indication of
the policy areas which attracted the most cases.
19.37 Finally, we note the positive impact which
the dispute-resolution processes under the EU Pilot is having
on increasing the number of proceedings which settle.
19.38 We clear the document from scrutiny, but
look forward to the Minister's response to our questions above.
96 Cases where the Member State concerned failed to
fulfil its obligation to notify measures to transpose a Directive. Back
p. 5 of report. Back
p. 7 of the report. Back
The 18 Member States are: Austria, Bulgaria, Czech Republic, Denmark,
Estonia, Germany, Finland, Hungary, Ireland, Italy, Lithuania,
the Netherlands, Portugal, Slovakia, Slovenia, Sweden, Spain and
the United Kingdom. Back
p. 9 of the report. Back