Guidance for policy officials: handling infractions

Part 2: An Overview of Infractions

The purpose of infractions

11. The purpose of the infractions process is to ensure that Member States are complying with their EU obligations.

12. Often, the Commission will first conduct informal inquiries into alleged infringements, in order to provide Member States with the opportunity to demonstrate to the European Commission that they have transposed and are implementing the EU law correctly and thereby avoiding the need for formal infringement procedures.

13. If no solution can be found at an early stage, the Commission may launch formal infringement proceedings and eventually refer the Member State to the Court of Justice of the European Union (" CJEU") for a decision as to whether there has been a breach.

Types of infractions

14. When infraction proceedings are launched, it will typically fall into one of the following categories:

• Non-communication - This is where the Member State has not transposed a Directive on time, or where it has not communicated the details of the transposing measures to the Commission via the correct channels. Under Article 258 TFEU, the Commission may apply a faster process to non-communication cases than other types of infraction, and these cases attract fines much faster too. Guidance on notifying transposition measures to the Commission is provided in paragraphs 90-94 of Implementing EU Obligations, available at
  http://www.gov.scot/Topics/International/Europe/Policies/Strengthening-Relationships/Obligations/Implementing-EU-Policy
• Incorrect implementation - This is where the Commission alleges that the Member State has not implemented a directive correctly or fully.
• Incorrect application - This is where the Commission alleges that the Member State is not complying with a directive properly in practice, despite transposing it into its national law.

Stages of infractions

15. The Commission Infraction Chefs meet every month (except August and December) to consider cases and decide either to instigate new action, progress a case forward, or close proceedings.

16. The formal infringement procedure starts with a letter of formal notice, by which the Commission allows the Member State to present its views regarding the breach observed. If no reply to the letter of formal notice is received, or if the observations presented by the Member State in reply to that notice cannot be considered satisfactory, the Commission will move to the next stage of the infringement procedure, which is the reasoned opinion. If necessary, the Commission will then refer the case to the CJEU.

The EU Pilot

17. Since April 2008, however, the Commission has been running a pilot scheme, aimed at improving the efficiency of the infraction process by providing an early opportunity to investigate claims of breached legislation.

18. It is based on an online portal, which allows the Commission - on its own initiative or in response to a complaint by an individual or organisation - to gather further information from Member States on whether they are implementing EU obligations correctly.

19. The EU Pilot is not part of formal infraction proceedings, but constitutes an informal precursor to them. It is used by the European Commission to gather information on the implementation of EU obligations in a Member State and offers Member States an opportunity to remedy potential infringements voluntarily, at an early stage. However, the Commission is not legally bound to issue an EU Pilot case prior to the formal infractions process.

20. The EU Pilot process is not available in non-communication infractions, where the Commission suspects that not all measures have been notified - in such cases the process begins with the formal Article 258 Letter of Formal Notice.

21. Member States are usually given 10 weeks in which to address and respond to the Commission's concerns, however the lead UK Department will specify an earlier deadline to allow the final UK response to be cleared at various stages before submission to the Commission. Failure to meet a deadline for responding to an EU Pilot case may result in the Commission closing the EU Pilot file and launching formal infringement proceedings.

22. If the Commission is dissatisfied with the response, the Member State does not agree with the Commission, or the Member State fails to rectify the suspected infringement, the Commission may then consider commencing infringement proceedings in the usual way.

23. It is, therefore, essential to treat these pilot cases with the same urgency as a formal infraction.

Article 258 Letter of Formal Notice

24. An Article 258 Letteris the first formal stage in infraction proceedings and is issued when the Commission has concerns about the transposition or implementation of a Directive by the Member State. The letter sets out the basis of the Commission's complaint against a Member State and seeks its views on the issues.

25. The Member State is usually given two months to respond, however the Commission may give less time where it considers it is appropriate to do so.

Article 258 Jumbo Letters

26. "Jumbo" letters are issued where the infraction results from non-notification. Whilst only one jumbo letter will be issued to cover a number of cases, each case counts as an individual infraction. These also have a 2 month deadline, and responses should provide a firm commitment to finalise transposition and notify the Commission.

Article 258 Reasoned Opinion

27. Where the Member State fails to respond, or the Commission is unsatisfied with the response and still considers the Member State to be in breach of its obligations, it will issue an Article 258 Reasoned Opinion. The Reasoned Opinion requires the Member State to comply with its EU obligations (as opposed to merely replying) within a given time limit, usually two months from the date of publication of the letter.

28. The Reasoned Opinion must be dealt with fully and quickly in the light of legal advice and input from other colleagues with an interest.

29. If the Scottish Government does not intend to comply with the Reasoned Opinion, SGLD must be consulted on the strength of the Scottish case and the prospects of the UK successfully defending our position before the CJEU. Any response with a Scottish element needs to be agreed with the UK Government.

Referral to the CJEU Under Article 258

30. If a Member State fails to comply with a reasoned opinion within the prescribed period, or the Commission does not accept the Member State's response and/or considers the Member State to still be in breach, the Commission can decide to refer the matter to the European Court of Justice for a ruling on whether the Member State is in breach of its EU obligations.

31. The Commission will also lodge the formal Article 258 correspondence, including the replies to the formal letter and the reasoned opinion, with the application. When dealing with these early stages be aware that if the matter does go to the CJEU, any responses from policy officials will form part of the official court proceedings.

32. Under the court procedure, it is usually the CJEU that informs the Member State of the Commission's application. It makes an order for defences to be lodged (this is usually within one month but may be extended to two). Following consideration of the case, the CJEU will issue a judgment which must be complied with. Consideration can be a lengthy process.

33. If the infraction is due to late or incomplete transposition ( i.e. non-notification cases) of a directive into national law, the Commission can request that the CJEU impose financial penalties on the Member State at this first referral stage.

34. In other infraction cases, where the CJEU has ruled that the Member State is in breach of its EU obligations, the case will progress to the Article 260 stages noted below.

Article 260 Letter of Formal Notice

35. Where the CJEU has ruled that the Member State is in breach of its EU obligations, the Commission may issue to the Member State a letter of formal notice under Article 260 inquiring what action the Member State has or is taking to comply with the CJEU's judgment and remedy the breach.

36. The deadline for response is normally 2 months. Failure to respond to an Article 260 letter, or failure to comply with the CJEU's judgment by the deadline set, will result in referral to the CJEU a second time, under Article 260(2).

37. The reply will be issued on behalf of the UK Government and requires clearance between Whitehall and the devolved administrations. Due to the sensitivity of Article 260 proceedings, an intergovernmental meeting may be necessary.

CJEU Referral under Article 260(2)

38. This is the final stage for non-implementation cases. Referral to the CJEU under Article 260 is used to ensure that Member States comply with the court's judgment, usually by imposing financial penalties.

39. The Commission's decision on a second referral to the CJEU on the basis of Article 260 TFEU must always be accompanied by a proposal for a penalty and/or lump sum payment.