In infringement decisions the European Commission pursues executive and legal action against the member states for failing to comply with their obligations under the European law. These decisions, covering various sectors and EU policy areas, aim to ensure proper application of the EU-wide legislation for the benefit of citizens and businesses.
The Commission’s enforcement policy has evolved over time and aimed at making the most impactful effect on implementing the EU law. Thus, in 2016 and in 2022, the Commission Communications on reaching “better results through better application” and “enforcing the EU law”, envisaged provided for “strategic and focused use” of infringement procedures. Hence, the priority is given to tackling breaches with the biggest impact on the interests of citizens and businesses, including those breaches of EU law, which obstruct the implementation of important EU policy objectives and could threaten EU’s four fundamental freedoms.
The decision to open infringement proceedings or to take a next step in these proceedings against a EU state is taken by the College of Commissioners: such a decision is based on the legal analysis conducted by the Commission services, as well as on the documents and information submitted by the member states, the Commission services or other complainants.
The decisions of the Commission on infringements are taken several times per year, across the various policy areas monitored by the Commission services.
More in: https://ec.europa.eu/commission/presscorner/detail/en/MEMO_12_12
There are four main types of infringements in the EU law:
= failure to notify: a EU state does not notify the Commission on time of its measures to turn a directive into national law;
= non-conformity: the Commission considers that a EU state’s legislation is not in line with the requirements of the EU directives;
= infringement of the treaties, regulations or decisions: the Commission considers that a EU state’s laws are not in line with the requirements of the treaties, EU regulations or decisions; and
= incorrect application: the EU law is not applied correctly, or not applied at all, by national authorities.
The primary purpose of the infringement procedure is to ensure that the EU facilitates the implementation of the EU law in the “EU-wide general interests”, not to provide individual redress. Isolated instances of possible wrongful application of EU law, which do not raise issues of general principle, lacking evidence of a general practice or of systemic shortcomings, are dealt with more effectively by redress bodies closer to those affected by the infringement. On EU level, an alternative for individual redress in cross-border situations can be the SOLVIT network.
The roles of the states and the Commission
= The Commission is the guardian of the Treaties and of EU law more broadly. According to Article 17 of the Treaty on the European Union, it is its role and obligation to ensure the protection of the Union’s interest and to oversee the application of Union law under the control of the Court of Justice of the European Union. The infringement procedure is a means to this end. It is set out in Articles 258 and 260 of the Treaty on the Functioning of the European Union. It allows the Commission to take formal action against the EU states if they are suspected of breaching EU law, asking them to remedy the situation by a certain date. This may involve referring them to the Court of Justice of the European Union at a later stage.
= The EU states have the primary responsibility for transposing, applying and implementing EU law correctly. They also have to provide sufficient remedies to ensure effective legal protection in the areas covered by the EU law. National courts have a particularly important role in the enforcement chain. Where rights of EU citizens or businesses are affected in the EU states, they must be granted access to rapid and effective national redress, in line with the principle of effective judicial protection; hence, national courts must be independent, impartial and established by law.
The Commission opens infringement procedures either on its own initiative, as a follow-up to a complaint or automatically every two months. The latter group concerns non-communication cases triggered by the failure of the EU states to transpose EU directives fully by the deadline.
The Commission receives numerous complaints from individuals and bodies, pointing to a breach of EU law. It also receives many petitions relating to EU law, forwarded by the Petitions Committee of the European Parliament.
Even if the Commission cannot and does not investigate every single possible misapplication of EU law, it continues to value complaints, written questions and petitions as a source of information in broader cases related to systemic or structural breaches of EU law in states.
The Commission assesses for each directive whether the transposition by the states is on time, complete (completeness check) and correct (conformity check). The EU states have to notify their national transposition measures to the Commission by the deadline set in the directive. The states can choose the form and methods for transposing directives into national law; however, they are bound by the terms of the directive as to the result to be achieved and the deadline by which the transposition should take place
As a rule, the EU states must fit measures into the national legal and administrative framework: the resulting actions can therefore produce a high number of measures that the Commission needs to examine.
For some directives, the Commission receives, on average, more than 10 transposition measures per a member state. Finally, the national authorities must notify the European Commission of the measures they have adopted; the European Commission verifies the completeness and correctness of transposition of EU law into national law.
Majority of EU member states publish texts of their transposition measures on EUR-Lex website.
Examples for the Baltic Sea region, BSR
As a rule, we provide the readers information –only some of them- on cases connected to the states in the BSR.
= Letters of formal notice, environment: Estonia – correct transposition of the Waste Framework Directive; case INFR (2023) 2146. In Estonia, the requirements concerning prevention of food waste and littering have not been fully transposed, as well as those concerning monitoring and assessing re-use and food waste prevention measures. In addition, several aspects of extended producer responsibility schemes have not been transposed.
The amended directive establishes legally binding targets for recycling and preparing for reuse of municipal waste. It also requires Member States to improve their waste management systems and the efficiency of resource use. The deadline for the states to transpose Directive 2018/851 into their national legislation expired on 5 July 2020; Estonia has not correctly transposed it to date; it has now two months to respond and address the shortcomings raised by the Commission; in the absence of a satisfactory response, the Commission may decide to issue a reasoned opinion.
= Clean air: Poland – the Commission decided to send an additional letter of formal notice to Poland (case INFR (2008) 2199) for failure to implement the Court judgment of 22 February 2018 (C-336/16) on non-compliance with the Ambient Air Quality Directive 2008/50/EC with regard to PM10. The Ambient Air Quality Directive obliges the EU states to keep the concentrations of specific pollutants in the air, like particulate matter PM10, below certain limit values. Exposure to high values of PM10 has negative health impacts especially related to respiratory diseases and in particular for children and vulnerable groups. In case these limit values are exceeded, the states must adopt measures to keep the exceedance period as short as possible.
With its judgment of 22 February 2018 Commission vs Poland, the Court of Justice of the European Union found that Poland had breached its obligations under the Ambient Air Quality Directive. Since the ruling, Poland has taken some measures, such as the establishment of quality standards for boilers or solid fuels available on the market for individual households. However, the Commission remains concerned by the slow pace of change and the lack of a coordinated approach at national and local levels, in particular regarding the replacing of outdated solid fuel boilers used for heating by individual households. This was identified by Poland as the most relevant source of PM10 pollution. In 2022, 12 air quality zones still recorded exceedance of daily limit values and compliance is not expected before 2026.
Poland has now two months to submit its observations on the issues raised by the Commission. After examining these observations, or if no observations are submitted within the prescribed time-limit, the Commission may refer the case back to the Court of Justice of the European Union as provided for in Article 260(2) TFEU and ask for financial penalties to be imposed on Poland.
= Letters of formal notice and reasoned opinions, clean air: Poland, Latvia and Lithuania. The European Commission decided to send an additional letter of formal notice to these states for failure to ensure correct implementation of their reduction commitments for several air pollutants as required by Directive 2016/2284 on the reduction of national emissions of certain atmospheric pollutants (‘NEC Directive’). The NEC Directive sets national emission reduction commitments for five important air pollutants: nitrogen oxides (NOx), non-methane volatile organic compounds (NMVOCs), sulphur dioxide (SO2), ammonia (NH3) and fine particulate matter (PM2.5). These pollutants contribute to poor air quality, leading to significant negative impacts on human health and the environment. The reduction commitments are to be attained by each EU state each year between 2020 and 2029, and more ambitious reductions from 2030 onwards. The EU states are also required to establish national air pollution control programs (NAPCPs) to show how these reduction commitments will be met.
= Nature: Commission calls on Estonia to comply with the requirements of the Habitats Directive on environmental assessment of forest logging. The Habitats Directive contributes to this aim by requiring that all activities with potentially significant effects on a Natura 2000 site are made subject to an appropriate assessment and are authorised only to the extent that they will not significantly affect the site concerned; this includes forest logging activities. Estonia now has two months to respond and take the necessary measures to comply; otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.
= The Commission calls on Latvia to correctly transpose the EU rules on the presumption of innocence and the right to be present at trial in criminal proceedings. The Commission decided to open an infringement procedure by sending a letter of formal notice to Latvia (case INFR (2023) 2140) for failing to correctly transpose the Directive on strengthening the presumption of innocence and the right to be present at the trial in criminal proceedings (Directive 2016/343/EU). The Directive is one of six Directives adopted by the EU to create common minimum standards ensuring that the fair trial rights of suspects and accused persons in criminal proceedings are sufficiently protected across the EU. Latvia now has two months to take the necessary measures to address the shortcomings identified by the Commission; in the absence of a satisfactory response, the Commission may decide to send a reasoned opinion.
= Reasoned opinion- Renewable energy: Commission urges Sweden to fully transpose the Renewable Energy Directive, i.e. rules on the promotion of the use of energy from renewable sources set out in Directive 2018/2001. This Directive provides the legal framework for the development of renewable energy in electricity, heating and cooling, and transport in the EU. It sets an EU-level binding target for 2030 of at least 32 % of energy from renewable sources in the Union’s gross final consumption of energy by 2030. The Directive provides supportive measures for renewable energy to be cost-effective and simplifies administrative procedures for renewable energy projects. It also facilitates the participation of citizens in the energy transition and sets specific targets to increase the share of renewables in the heating and cooling and transport sectors by 2030. The deadline to transpose the Directive into national law was 30 June 2021.
Commission sent a letter of formal notice in July 2021 to Sweden for failure to transpose the Directive. After having examined the reply from Sweden to the letter of formal notice, including the national transposition measures notified, the Commission considers that Sweden has still not fully transposed the Directive. Sweden has now two months to remedy the situation and notify to the Commission the complete transposition of the Directive. In the absence of satisfactory responses, the Commission may decide to refer the cases to the Court of Justice of the European Union.
Main source: https://ec.europa.eu/commission/presscorner/detail/en/inf_23_5380
More information on the EU infringement procedures in: https://ec.europa.eu/commission/presscorner/detail/en/MEMO_12_12
Detail on the history of a cases in the infringement decisions’ register: https://ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/infringement_decisions/?lang_code=en