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