Necessary Elements

        • But if Comm’s application to ECJ found inadmissible on grounds that it is based on objection different from that in reasoned opinion, it will just have to lodge fresh app before ECJ based on same objections as the reasoned opinion (no need to redo pre-liti!)
        • ***BUT note that if Comm’s application to ECJ differs from reasoned opinion in a manner favouring MS – limits what is in the reasoned opinion, it will be accepted! Can also allow extension of subject matter to events after the reasoned opinion, as long as they are of the same kind/constitute same conduct, or is used to show general and persistent pattern/practice (not specific violation)
    • Confidentiality: can indiv complainants disappointed by Comm’s failure to bring proceedings against MS seek access to the reasoned opinion/other relevant docs? – Simialr case in Dentist Airdrie
      • WWF case, 1995: CFI held that MSs entitled to expect confidentiality of Comm, hence court was not prepared to order disclosure, even if investigation closed some time ago.
      • Petrie case, 1999: CFI held that need for confidentiality remains even after matter is brought before ECJ, up until ECJ delivers judgment. Objective of obtaining amicable resolution applies all the way before judgment is given!  
      • Note that since 2002, Comm has maintained electronically accessible list of decisions on infringement proceedings. Also occasionally publishes reasoned opinions.
    • Can MS argue before ECJ that breach has already remedied?
      • NOT a defence if procedural conditions for bringing art 258 proceedings have been fulfilled, and period for compliance (laid down by Comm) has expired w/o adequate response. ECJ only looks to see if MS was in breach at time of expiry of period laid down in RO, not at time of hearing.
      • Different from ECJ’s approach in actions against Union institution for failure to act (art 265)! Reasons:
        1. Comm has continued interest in bringing action (prevent MSs from undermining infringement proceedings, and MSs might re-commence same conduct later)
        2. ECJ should be able to rule on legality of short breaches – might not be less serious than longer breaches (though not if effects of infringement ended before expiry of period)
        3. Judgment can establish MS’  Dentist Airdrie liability (eg. For indiv’s action for redress before nat courts)

Must have failure of member state to fulfil a Treaty obligation

1) Positive act vs omission = both can constitute failure by MS to fulfil Treaty obligation!

Examples of positive acts:

  • Comm v UK, 1994: enactment of legislation expressly contravening EU law. UK had enacted legislation that if you want to fly UK flag on ship, ship must be British-owned – direct contravention of free movement of services/freedom of establishment provisions.
  • Comm v Greece, 2009: includes administrative acts/practices. Rejected MS’ argument that govt didn’t have direct influence on admin practices – insufficient justification for continued breach of Eu law

Discretion as to timing?

      • omm v Netherlands, 1991: there are limits to Comm’s discretion, in respect of length of time taken to bring proceedings. Excessive delay might be prejudicial (though not on the facts, where Netherlands argued period of >5 years from time of first letter, to bringing infringement proceedings, was excessive) – more difficult for MS to refute Comm’s arguments, hence infringing the rights of the defence.
      • Cf Comm v Austria, 2002: ECJ rejected argument that given length of time since events which were subject of infringement proceedings, proceedings would violate principle of legal certainty and indivs’ acquired rights.
      • As for discretion on timing after issuing of reasoned opinion (above cases are on commencement of infringement proceedings in the first place):
          • Comm v Ireland, 1984: though it allowed the Comm action to be admissible, ECJ reprimanded Comm for the short length of time it allowed Denmark for compliance with the reasoned opinion.


  • Comm v Belgium, 1988: proceedings against Belgium deemed inadmissible cos of short time allowed for responding to letter of formal notice and reasoned opinion. Reasonable period must be allowed, unless in circumstances of urgency/where MS was fully aware of Comm’s views long before procedure started.


    • Non-privileged parties sometimes try bringing ‘failure to act’ actions (art 265 TFEU) against Comm, for Comm’s failure to initiate infringement proceedings under art 258.
      • Rejected by ECJ in Star Fruit case, 1987: clear that art 258 does not bind Comm to commence proceedings – Comm has discretion!
    • Justification for discretion (and lack of role for indivs)? [Snyder] highlights that the main form of dispute settlement used by the Comm is negotiation, of which the ability to initiate infringement proceedings is but one part. Comm also uses litigation as part of long-term strategy, with focus on establishing basic principles/playing for rules, not just winning each case – Manchester Taxi
    • Self-imposed admin constraints (by the Comm):
      • 1989: decided to bring immediate infringement proceedings against any defaulting MS as soon as time limit for implementation of directive has passed
      • 1990: routinely issued letters of formal notice whenever MS fail to notify national measures implementing directives due for implementation
      • Also codified its own internal procedural rules, in response to pressure from Ombudsman


The reasoned opinion:

    • FUNCTION: provides procedural protection for MS (natural justice); official means of communication to MS about substance of complaint, and specifies time limit for compliance.
    • FORM: no formalism, and is not subject to review (action for annulment) because it does NOT have binding effect
    • ➔ but MS can contest lack of adequate reasoning by raising matter before ECJ if proceedings reach the referral stage.
    • **CONTENT:
        • Art 296 TFEU: general rule that legal acts must state reasons on which they are based
        • Art 258: specific requirement of reasoning in relation to opinions issued by Comm


  • Comm v Italy, 1961: must have coherent statement of the reasons which led the Comm to believe that MS failed to fulfil an obligation under the Treaty.


        • But no need to address every argument made by MS at pre-litigation stage, nor indicate steps to be taken by MS to remedy the breach.
        • But Comm must respond to MS’ reply to letter of formal notice
      • Scope/subject matter of proceedings is delimited by letter of formal notice _ reasoned opinion. Essence of complaint must be the same throughout!
        • Comm cannot later amend substantive content of submission, even if both parties want ECJ to consider other aspects of MS’ conduct – must start art 258 procedure afresh! But note that MS is not bound to raise defence during pre-litigation stage – can raise new matters as defence before ECJ!