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Breaking the Eurocode

Infringement process

Aerial picture of the European Court of Justice
Credit © European Community, 2007.
Aerial view of the European Court of Justice
in Luxembourg.
Infringement proceedings, or infractions as they are sometimes called, are the legal process by which the European Commission enforces the application of European Community law. When it comes to the attention of the Commission that a Member State has breached EC law it may launch infringement procedures which can result in them being taken to the European Court of Justice and ultimately fined. Typically this will be due to the fact that the Member State has breached its obligations under the EC Treaty in one of three ways.
  1. Non-communication. When the Member State fails to adopt and inform the Commission within the agreed timeframe that it has put national legislation in place to implement the EC directive.
  2. Non-conformity. When the Member State fails to implement EC law correctly.
  3. Complaints of bad application. When a Member State fails to apply Community law correctly in a particular case.
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The procedure

If the Commission believes any of these breaches may have occurred, infraction procedures may be launched based on article 226 and subsequently article 228 of the EC Treaty. This procedure has several stages.
  1. The Commission may issue an informal letter of inquiry, known as a ‘Pre-226’ letter. This is generally done in order to gather facts as a result of a complaint from a member of the public or an NGO.
  2. The Commission may next issue a ‘226 letter’ often referred to as a letter of formal notice. This provides the Member State with two months in which to respond to an allegation that it is in breach of Community law.
  3. The Commission may subsequently produce a (226) reasoned opinion if there is evidence that the Member State is still in breach. At this point the Member State has two months in which to comply with the legislation and respond to the Commission.
  4. If the Member State is still in breach of Community law following this period, the Commission may refer the matter to the European Court of Justice (ECJ) who will produce a declaratory judgement.
  5. In the month following an article 226 judgement against a Member State the Commission will again send an informal letter known as a ‘pre-228 letter’. This allows the Member State three months in which to show the measures that have been taken to put an end to the problem.
  6. After three months, if the problem persists the Commission will issue formal notice to the Member State that it has failed to comply with an ECJ judgement.
  7. The Commission will next move towards producing a further (228) reasoned opinion, requiring the Member State to comply with the ECJ judgement within two months.
  8. If this fails to occur, the Commission can then refer the Member State to the ECJ under article 228. At this stage the Commission can recommend that the ECJ impose a lump sum or penalty payment on the Member State until they comply with the judgement.
Penalty payments can be quite significant for Member States, and the publicity of being ‘named and shamed’ adds an added incentive for them to comply early in this process. Of relevance to the UK, and Northern Ireland in particular, are infractions in the field of environmental legislation, public procurement and state aids. In fact, the ‘big 5’ European Member States were responsible for 75% of illegal state aids in the period 2000-2006.
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