Infringement Procedings: Fail to Act (Article 258 TFUE) -> Complaints (Article 265 LT) - Overview of Requests

Klaus Zinser made this access to documents request to Court of Justice of the European Union

The request was successful.

From: Klaus Zinser

Delivered

Dear European Court of Justice,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

A brief introduction:

According to Article 258 of the Treaty on the Functioning of the European Union (TFUE):
"The European Commission, acting as Guardian of the Treaties, has the power to take legal action against a Member State that is not respecting its obligations under EU law. ..

The infringement procedure begins with a request for information (a "Letter of Formal Notice") to the Member State concerned, which must be answered within a specified period, usually two months. "

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Explanation, Question and Background:

If the European Commission does not act, according to Article 265 of the Lisbon Treaty, complaints (as a kind of maladministration) are possible:

"Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice to have the infringement established. .. Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion."

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Seeing this rules I would like to know how I can find out when and how often this happend. Means when, especially on individuals, complaints to the court have been made because of no-action of the commission ?

Question:
(1) Is there an overview ?
(2) Is it possible to see these complaints in detail ?

InfoCuria is known.
http://curia.europa.eu/juris/documents.j...

Further these search criterias could be used:
Note of criteria selected:
Procedure and result = "Actions for failure to act"
Text = 265

Also, is there a more aggregated information like a statistic ?

Background:
One of the reasons asking for this, is FOI: http://www.asktheeu.org/en/request/infri...
where the commission is saying they have no information.

Yours faithfully,

Vinzenz Zinser

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From: Klaus Zinser

Delivered

Dear European Court of Justice,

as there was no reply from your side and to make sure you are aware of this FOI request kindly confirm that it will be answered until 20th February 2015.

Yours faithfully,

Vinzenz Zinser

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From: Fretwell Christopher
Court of Justice of the European Union

Dear Mr Zinser,

 

There is no current document which provides the information that you
require. All publicly available information relating to the Court's case
law can be found on our website, as you have already noticed.

 

I would, however, advise you that the Court has stated, a number of times,
that the Commission has complete discretion as to whether it brings
infringement proceedings. Any such request for a declaration that the
Commission has failed to act in relation to pursuing an infringement
proceeding, is therefore usually considered to be manifestly inadmissible.
Notably in its judgment in Case C-247/87 Star Fruit v. Commission, the
Court stated that:

"11. […] it is clear from the scheme of Article 169 of the Treaty that the
Commission is not bound to commence the proceedings provided for in that
provision but in this regard has a discretion which excludes the right for
individuals to require that institution to adopt a specific position.

 

12. It is only if it considers that the Member State in question has
failed to fulfil one of its obligations that the Commission delivers a
reasoned opinion. Furthermore, in the event that the State does not comply
with the opinion within the period allowed, the institution has in any
event the right, but not the duty, to apply to the Court of Justice for a
declaration that the alleged breach of obligations has occurred.

 

13. It must also be observed that in requesting the Commission to commence
proceedings pursuant to Article 169 the applicant is in fact seeking the
adoption of acts which are not of direct and individual concern to it
within the meaning of the second paragraph of Article 173 and which it
could not therefore challenge by means of an action for annulment in any
event.

 

14. Consequently, the applicant cannot be entitled to raise the objection
that the Commission failed to commence proceedings against the French
Republic pursuant to Article 169 of the Treaty.”

 

Note that what is now Article 258 TFUE was, at that time. Art. 169 of the
EC Treaty.

 

You can find similar cases by searching for those which reference this
particular judgment
([1]http://curia.europa.eu/juris/liste.jsf?p....
Whilst this search does include some cases which do not fall within the
scope of your request, it should contain all of those cases which do.

 

I hope that clarifies the matter for you.

 

Regards,

 

 

Christopher Fretwell

English Section

Press and Information Unit

Court of Justice of the European Union

Tel: +352 4303 3355

Follow us on Twitter: [2]@EUCourtPress

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From: Klaus Zinser

Delivered

Dear Fretwell Christopher,

thank you very much for the detailed answer.

From what I understand, if the European Commission is not willing to go against a possible violation of EU law nothing will happen. (My personal interpretation, if a state is big and influential enough it is even more realistic that nothing will happen.)

Neither an individual and neither a state can go against a EU commission that is ignoring a possible violation of EU law.

Thats what I found in the meantime:
30th and 31st annual reports on monitoring the application of EU Law (2012-2013)
http://www.europarl.europa.eu/oeil/popup...
http://eur-lex.europa.eu/legal-content/E...

The situation is similar to the EU Parliament
- who has no right to start an initiative on a new law (as in nearly all parliaments worldwide) it seems also
- not possible - there is no legal remedy - to go against a violation of EU law.

I wondered that this has not changed in the past 30 years as the decision you refered is nearly 30 years old.

Another personal interpretation, people who trust in EU law (that EU law is kept) are mislead.

Thank you again for clarification.

Yours sincerely,

Vinzenz Zinser

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[redundant account] left an annotation ()

The FOI was answered very well.

Unfortunately as European Citizen I am not happy about such a situation where
- people have to trust that the EU law is applied
- but the people/citizens fully depend on the mercy of the EU Commission, a Commission who can ignore the violation of EU law and do nothing. No even requesting a position statement from the violating EU Member State.

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Anyone:
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