Enforcement
- It is crucial that the same law is active in the same states, and that this is enforced
- Key enforcement bodies:
- European Commission ("The Guardian of the Treaties" Art 17 TEU): must ensure that the law is applied and followed, and where infringements are made, that it should be brought to the Court of Justice.
- The Commission can bring an undertaking or Member State to the ECJ (Court of Justice, General Court and specialised courts). It ensures that law is observed in interpretation and application of the treaties (Art 19 TEU)
- ECJ shall rule on actions brought by a member state, institution or legal person; give preliminary rulings on the interpretation of union law or validity of acts adopted by the institutions; and rule in other cases provided for in the Treaties (e.g. competition law)
- There are national enforcement bodies which are integral to the enforcement of EU law (in relation to competition law this applies to the Office of Fair Trading, Competition Appeal Tribunal etc.)
- Competition law can be applied at national level, and at EU level by the European Competition Commission
- Member States must apply Art 101 and 102 when applying national provisions
- In terms of undertakings, they don't have to go via the national system
- British Airways: Virgin complained to Commission about incentives that BA was providing for agencies. BA wanted to appeal/request the annulment of the Commission. BA had to ask a European Court to annul the decision. Usually they go to the General Court. These decisions can be appealed to the ECJ. It can start at a national level and be appealed to a European level; or can start in the Commission as an administrative procedure, then to the courts.
- GlaxoSmithKline: started in the national level. The decision made by the national tribunal was repeated by the European Commission. As the Commission decision took precedence over national tribunal, GSK appealed to the ECJ
- BA argued that the Commission lacked competence to deal with the decision as it was going through fluctuation; GSK argued another reason
- Commission has one of the strongest enforcement powers in the EU
- It can search premises and make proceedings based on suspicion; it can take computers, etc.
- Sometimes it embarks upon these actions because it has strong suspicions on secret agreements (there may not be clear evidence, so it has strong powers to collect evidence)
- Non-cooperation may indicate that they are hiding something
- The Commission produces a statement of objections
- Response to complainant; investigation of complaint; case closed, or Statement of Objectives; collection of data and comments by third parties
- Responses from company and oral hearings
- Determination by the Commission: case closed; prohibition decision (finding; order of termination; fine); OR they can make a commitment decision that it will end its anti-competitive behaviour (binding commitments by undertaking)
- Leniency Programme
- When a person informs the Commission, the Commission has hard evidence. This saves them a lot of time if an informer comes forward and says they know the company is doing this. There is an example of this from the NHS. Man reported his own firm for unlawful accounting purposes. Whistleblowers tend to be stigmatised: once you inform the authorities, another employer will question whether you'd do the same to them: there is a high personal cost. There is a huge value for the undertaking that blows the whistle. That firm will be removed from any liability.
- The leniency programme is something that the Commission has developed to encourage whistleblowers. If the Commission imposes a fine, it can be up to 10% of the annual turnover of the firm. There can be reductions on appeal.
- Infringement procedure is used against MSs
- 'EU acquis communautaire': the general law of the European Union
- When EU rules have to be implemented, it falls to the member states to do so
- If they fail to transpose the obligations into their national law, the EU Commission either persuades or forces them to
- 1775 open infringements in 2011 (down from 2900 in 2009)
- The number of infringements is reducing
- A large number of infringement proceedings arise from complaints from individuals
- MSs have sometimes refused to acknowledge a relationship with a third party national; refused to acknowledge status as a worker etc.
- In relation to the number of rules and regulations that have to be implemented, research has found that there is actually quite a high level of compliance
- The three words of compliance:
- Delay: Sweden and the other Scandinavian countries were happy and sought to fulfil their obligations, and where they couldn't, there was an unavoidable delay.
- Indifference: If it doesn't conflict with the national agenda, Britain would comply with the rules.
- Neglect: Greece falls into this category, not complying with EU law because they believe that national law is the most important.
- Complainant provides information to the Commission (this is where the complainant's involvement can end) > The Commission enters into a dialogue with the MS and give them the opportunity to inform them why they are not complying > The Commission sends a formal letter initiating Court proceedings if there is delay and indifference > The Commissions issues a reasoned opinion (Art 258).
- If it is addressing neglect, the Commission brings the matter before the Court of Justice
- If the MS says that it is not enforced yet because it is still going through Parliament, the Commission is usually lenient and waits
- In 2011, by sending 203 letters, the Commission got compliance from the MSs
- 29 cases were closed in 2011 after the matter had been referred to the ECJ
- The infringement procedure was strengthened by Art 260 TFEU: "lump sum or penalty payment to be paid by the MS concerned which it considers appropriate in the circumstances"
- If the Court finds that it has not complied, it may impose a fine
- The penalty payment is usually imposed as a daily amount which the MS must pay until it has fully complied with the decision
- The lump sum is issued for past non-compliance
- The principles of the Commission: Ensuring transposition, preventing repetition, and deterring other MSs from non-compliance
- Commission v France: Rule on fishing. Laid out a number of obligations on the size of fishing nets ships should use/the intensity of fishing the MSs should allow. France didn't comply. There had been 5 previous complaints but France still didn't comply. It was seen by the Court that the failure was so pervasive that it merited the double punishment of a lump sum and penalty payment. EUR 25om penalty; EUR 20m lump sum.
- Commission v Italy: Commission argued that Italy had been mistreating foreign language assistants (Art 45 Free Movement of Workers) and that they didn't recognise their rights. They asked the Court to impose a penalty payment. The Court disagreed as there was a lack of evidence. It didn't apply either fines.
- Only two cases in 2011 where they imposed a sanction: Commission v Greece (EUR 3m lump sum); Commission v Italy (EUR 30m lump sum) because it was 12 years old: there were 4 findings against Italy.
- Lisbon Treaty introduced another type of financial sanction, for late transposition only
- Increased rate of late transposition infringements (2009: 531; 2011: 1185)
- Treaty has a specific provision allowing a fine to be imposed where the MS misses the deadline
- Directives tend to contain individual rights: they are used for rules on rights to reside; protection against discrimination, etc.
- When a MS doesn't comply with a directive, the MS is denying citizens its rights
- This means it is of direct detriment to us
- Art 260(3) TFEU: encourages timely transposition
- The Commission has to start the process mid-way if it wants to use this procedure
- The Commission can ask immediately for a fine rather than ask why it hasn't complied with the decision
- The Commission has the discretion to follow up a complaint: they didn't tell the individual/business etc. why they wouldn't continue with their complaint
- Complainants went to the Ombudsmen to say that the Commission wasn't doing its job
- The Commission started to introduce measures to make the complainant feel more engaged in the process
- Online service: complaint made online, Commission interacts with complainant online ('Your Europe')
- It produces guidelines on its enforcement priorities (energy is important at the moment, as well as the internal market, finance etc.)
- EU Pilot: electronic, informal procedure (not in the Article). It was introduced from 2008, 15 MSs participated. It was so successful in the first few years that more states participated. As it's a non-treaty procedure, MSs don't have to participate. It ensures compliance, and avoids the lengthy article procedure. Increases the speed and increases the involvement of the MS in the procedure.
- Complaint sent to Commission > Records complaint, determines type of complaint to see if it is suitable for Pilot > returned to national authority (central contact point) which can choose whether or not to accept the complaint (it may be too complicated) > Commission informs the complainant > Commission can launch the formal procedure instead. OR if the CCP accepts it > CCP communicates with complainant to resolve the issue.
- It is always used now as a precursor to all complaints: increases speed and involvement
- Individuals bringing proceedings