Forty-eighth Report of Session 2010-12 - European Scrutiny Committee Contents

19 Infringement proceedings against Member States



+ ADDs 1-4

COM(11) 588

28th Annual Report on monitoring the application of EU Law (2010)

Legal base
Document originated29 September 2011
Deposited in Parliament12 October 2011
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 31 October 2011
Previous Committee ReportNone
To be discussed in CouncilNone planned
Committee's assessmentLegally important
Committee's decisionCleared; further information requested

The document

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 proceedings.


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[96] 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 Parliament."[97]


Late Transposition

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.

Sector-specific aspects

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[98] 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)."[99]


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 law.

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 258 TFEU.

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.[100]

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."[101]

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 law.

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

97   p. 5 of report. Back

98   2004/35/EC. Back

99   p. 7 of the report. Back

100   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

101   p. 9 of the report. Back

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© Parliamentary copyright 2011
Prepared 15 December 2011