Monthly Archives: November 2017

Defences by MSs

Force majeure

    • Usually rejected by ECJ! MS is responsible for breach, regardless of which agency of the State caused the failure to fulfil obligations
      • Even fact that institution is constitutionally independent is not a defence (Comm v Belgium, 1970)
      • Comm v Belgium, 1970: ECJ rejected dissolution of Parlt as a defence – normally have significant amount of time for implementation anyway, longer than it’ll take to dissolve Parlt.
  • MS cannot argue that national provisions/circumstances/practices justify failure – Comm v Italy, 1984
    • In a rare case of Comm v Italy, 1970, ECJ agreed force majeure could be pleaded where a bomb attack presented ‘insurmountable difficulties’ (but not on the facts!)
  • Lack of intentional wrongdoing by MS
    • ECJ has rejected such arguments, holding that admissibility of art 258 action is based on objective test, whether MS failed to fulfil obligation. No need to look for subjective intent/deliberateness.
  • EU measure on which infringement proceedings are based is illegal


    • Comm v Greece, 1988: MS contested lawfulness of Comm’s initial decision, after action brought against it for failing to amend national legislation.
      • **ECJ held that system of remedies under the Treaty distinguishes between (i) remedies under art 258/259 (declaration that MS failed to fulfil obligations), and (ii) art 263/265 (JR of measures adopted by EC institutions). Just like Manchester Taxi, Hence, in absence of express provision of Treaty, MS can’t plead unlawfulness of decision under (ii) as defence to action under (i).
      • Once time limit for art 263 expired, MS cannot call into question validity of EU measure! Only possible defence will be absolute impossibility of implementation.
      • If MS had objected to decision, it had opportunity to bring direct action for annulment under art 263.
  • But plea of illegality might be defence where Union measure was so gravely flawed it was legally ‘non-existent’, or if it was a regulation (as opposed to decision addressed to MS) and illegality was not apparent to MS until Comm brought enforcement proceedings.