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.



Breaches which interfere with EU external relations

    • Where MS’ conduct allegedly
      1. Violates international agreement binding on EU, or
      2. Otherwise violates obligation of sincere cooperation by jeopardising EU objectives in external relations field.
        • Open Skies case, 2002: Comm brought proceedings against MSs for having entered bilateral negotiations with US on air transport agreements
        • Comm v Sweden, 2010: ECJ held Sweden was in breach, by unilaterally proposing to list particular substance under Stockholm Convention before EU had time to propose its position, in area of shared competence – Dentist Airdrie 
  1. Systemic and persistent breaches or general practices
    • Where each breach itself is relatively minor, but is part of a pattern of inadequate implementation and compliance in practice.
    • Possible for disputed act to be an administrative act, but higher threshold to find breach here.
      • Practice has to be consistent and general
      • MS’ breach must be shown by ‘sufficiently documented and detailed proof of the alleged practice’ – different kind of proof compared to alleged breach by national legislation.
      • Comm v Ireland, 2005: ECJ held that general admin practice can be deduced from selected number of indiv infringements, allowing finding of ‘general and persistent breach’ against MS. Once Comm has shown sufficient evidence of indiv complaints/act, to show persistent and repeated practice of breach, it is for MS to challenge the evidence in detail and the other Dentist Airdrie case.
  1. Action by the courts of a MS
    • Failure by MS’ judiciary to comply with EU law has NEVER been basis of art 258 judgment – politically sensitive! But ECJ holds that MSs are responsible for (in)action by constitutionally independent organs of the state, and might incur liable in damages.
    • NB: in 2004, Comm issued reasoned opinion against Sweden on basis of its Sup Ct’s failure to make prelim ref to ECJ, and absence of any national law/reg for prelim ref procedure. But resolved prior to judgment by ECJ!