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Article 226 EC grants the European Commission the right to initiate infringement proceedings against member states that have failed to fulfill a Treaty obligation. There are five types of infringements, which can occur in the implementation of Community Law and against which the Commission may take action (see figure 1):
1. Violations of Treaty Provisions, Regulations, and Decisions ("violation")
Treaty Provisions, Regulations, and Decisions are directly applicable and, therefore, do not have to be incorporated into national law. Non-compliance takes the form of not or incorrectly applying and enforcing European obligations as well as of taking, or not repealing, violative national measures.
2. Non-transposition of Directives ("no measures notified")
Directives are not directly applicable, as a result of which they have to be incorporated into national law. Member states are left the choice as to the form and methods of implementation (within the doctrine of the éffet utile, which stipulates that the member states have to choose the most effective means). Non-compliance manifests itself in a total failure to issue the required national legislation.
3. Incorrect legal implementation of Directives ("not properly incorporated")
The transposition of Directives may be wrongful. Non-compliance takes the form of either incomplete or incorrect incorporation of Directives into national law. Parts of the obligations of the Directive are not enacted or national regulations deviate from European obligations because they are not amended and repealed, respectively.
4. Improper application of Directive ("not properly applied")
Even if the legal implementation of a Directive is correct and complete, it still may not be practically applied. Non-compliance involves the active violation of taking conflicting national measures or the passive failure to invoke the obligations of the Directive. The latter also includes failures to effectively enforce Community Law, that is take positive action against violators, both by national administration and judicial organs, as well as make adequate remedies available to the individual against infringements which impinge on her rights.
5. Non-compliance with ECJ judgments ("not yet complied with")
Once the European Court of Justice finds a member state guilty of infringing Community Law, the member state is finally obliged to remedy the issue. Non-compliance refers to the failure of member states to execute Court judgments, which establish a violation of Community Law.
Figure 1: Infringements in the Implementation Process of Community Law
Legal Implementation Transposition
incorporation by national law
delayed "no measures notified"
incorrect "not properly incorporated"
Practical Implementation Practical Application and Enforcement Practical Application and Enforcement
- incorrect application - incorrect application
- non-application, monitoring, enforcement - non-application,
"not properly applied" "violation"
The proceedings specified in Art. 226 EC-Treaty (ex-Art. 169) consists of six subsequent stages.
1. Suspected Infringement
Suspected infringements refer to instances in which the Commission has some reasons to believe that a member state violated Community Law. Such suspicions can be triggered by different sources:
complaints lodged by citizens, corporations, and non-governmental organization.
own initiatives of the Commission
petitions and questions by the European Parliament
non-communication of the transposition of Directives by the member states
2. Formal Letter of Notice (Art. 226)
The Formal Letter of the Commission delimits the subject-matter and invites the member state to submit its observations. Member states have between one and two months time to respond. Unlike their name suggests, Formal Letters are not part of the official proceedings. The Commission considers them as a preliminary stage, which serves the purpose of information and consultation, which afford a member state the opportunity to regularize its position rather than bringing it to account (). Consequently, Formal Letters are only made official, if they refer to cases where member states have not communicated the transposition of Directives within the given time-limit non-transposition and the Commission automatically opens proceedings.
3. Reasoned Opinion (Art. 226)
The Reasoned Opinion is the first official stage in the infringement proceedings. The Commission sets out the legal justification for commencing legal proceedings. It gives a detailed account of how it thinks Community Law has been infringed by a member state and states a time-limit, within in which she expects the matter to be rectified. The member states have one month time to respond.
4. Referral to the European Court of Justice (Art. 226)
The ECJ Referral is the last means to which the Commission can resort in cases of persistent non-compliance. Before bringing a case before the ECJ, the Commission usually attempts to find some last minute solutions in bilateral negotiations with the member state.
5. ECJ Judgement (Art. 226)
The ECJ acts as the ultimate adjudicator between the Commission and the member states. First, it verifies whether a member states actually violated European law as claimed by the Commission. Second, it examines whether the European legal act under consideration requires the measures demanded by the Commission. And finally, the Court decides whether to dismiss or grant the legal action of the Commission.
6. Post-Litigation Infringement Proceedings (Art. 228)