What action can the Commission take against the UK? Does the UK have any defences that it can rely on?

Introduction The European Commission is required to ensure that all Member States comply with EU law and thereby seek out any infringements that are taking place. If necessary, the Commission may bring an end to such infringements by commencing proceedings in the European Court of Justice (ECJ); Van Gend en Loos v Nederlandse Administratie der Belastingen. Such proceedings are brought under Articles 258, 259 and 260 of the Treaty on the Functioning of the European Union (TFEU) (previously Articles 226, 277 and 228 of the European Community (EC)). In the instant scenario, the Commission has decided to take action against the UK under Article 258 TFEU for failing to fulfill its obligations under the Treaty. This is being done on the grounds that the UK has failed to implement the new Directive (the Directive), adopted by the Council of Europe, that was to be implemented by all Member States by the 1 February 2014. Article 258 states; â€Å"If the Commission considers that a Member State had failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations†. The UK will therefore have an opportunity to raise any defenses within the time that has been specified by the Commission. If the UK fails to submit its observations, the Commission may then bring the matter before the ECJ as shown in Commission v United Kingdom. Here, it was held by the ECJ that; â€Å"assuming the Commission’s submissions are correct, it is not for the Court to give such an interpretation with the aim of correcting Article 2(1) of the Thirteenth Directive†. This case demonstrates that even if the Commission does take action against the UK, this does not mean that the ECJ will intervene. As pointed out by Haynes; â€Å"the Court has over the years been somewhat inconsistent in terms of the degree of interventionism in which it is prepared to engage in order to protect and p reserve the integrity of Community legislation and to iron out those inconsistencies that inevitably creep in.† Despite this, it is up to the Commission to decide whether infringement proceedings ought to be commenced; Alfons Lutticke GmbH v Commission. The Commission thus plays an important role in launching infringement proceedings against Member States and is capable of taking â€Å"whatever action it deems appropriate in response to either a complaint or indications of infringements which it detects itself.† An investigatory process will first be undertaken, which will then be followed by a letter of formal notice that will be served upon the Member State. Once a letter of formal notice has been served upon the Member State, where necessary, a referral to the ECJ will then be made. The procedure that has been established under Article 258 TFEU consists of two phases; pre-litigation and litigation. The intention of the pre-litigation phase is to provide a Member Stat e with the opportunity to comply with the Treaty requirements or provide a justification of its reasons for not doing so; Commision v France. Therefore, the Commission is capable of using the pre-litigation phase as a tool to persuade the UK to comply with the Directive. If the Commission is unsuccessful in persuading the UK to comply with the Directive, the pre-litigation phase will be used as a means of defining the subject-matter of the dispute; Joined Cases 142/80 and 143/80 Essevi and Salengo. It will then be up to the ECJ to determine whether the UK has breached its duties under the Treaty; Germany v Commission. In communicating with the UK on its infringement, it is likely that the Commission will use the EU Pilot that was established as a means of communication between the Commission and Member States. If the EU Pilot fails to resolve the dispute, the Commission may instigate infringement proceedings by giving the UK the opportunity to submit its observations. This is done b y issuing a letter of formal notice; Commission v Austria. The UK will consequently have the chance to submit its reasons for not implementing the Directive as shown in Commission v Portugal. Accordingly, it will thus be argued that there was pressure on parliamentary time and that the Directive will be implemented shortly. The UK will also be able to put forward its observations on Portugal’s non-implementation of the Directive and the fact that it is very early to bring an enforcement action against the UK. If the Commission does not agree with the UK’s response and the UK has not made any attempt to implement the Directive, the Commission may follow this up with a reasoned Opinion, which may then lead to an action before the ECJ; Commission v Germany. The Commission, in its reasoned Opinion, will set out the action it requires the UK to take in order to comply with the Directive and the reasons why it thinks the UK has failed to fulfil one of its Treaty obligations; Commission v Italy. Whilst the time limit that is to be laid down will be based upon a number of different factors, including the urgency of the matter, it is likely that the UK will have around 60 days to respond to the reasoned Opinion. This is intended to give the UK an opportunity to comply or put forward its right of defence as illustrated in Commission v Luxembourg. If the UK does not comply with the reasoned Opinion, the Commission will be capable of deciding whether the matter should be brought before the ECJ. The ECJ will not be concerned with the nature or seriousness of the infringement; Commission v Netherlands, but instead whether there has been a failure to fulfil obligations; Commission v Italy and the burden of proof will be on the Commission. Given that there has been a failure by the UK to fulfil its Treaty obligations under the new Directive, the ECJ will find that there has been an infringement. Although the UK may be able to put forward a defence that the Direc tive will be implemented shortly, it is doubtful that this will suffice as there is very little chances that defences to infringement are successful; Commission v Germany and Commission v Austria. Nor will the UK be able to argue that there has been pressure on Parliamentary time since it was evidenced in Commission v Spain that Member States may not plead that situations or practices existing in its internal legal order have caused the infringement as this will not justify a failure to comply with obligations under EU law. Nevertheless, in Commission v Italy Italy was able to rely on force majeure to justify non-compliance when it encountered temporary insuperable difficulties preventing it from compliance. Pressure on parliamentary time is not likely to be considered a temporary insuperable difficult. Furthermore, the fact that Portugal has failed to implement the Directive will be irrelevant as it was made clear in the Commission v France case that a Member State cannot rely on a possible infringement of the Treaties by another Member State to justify its own infringement. Since the UK has contended that it will implement the Directive shortly, it is likely that the principle of sincere loyalty (Article 4(3) TFEU) will apply. This principle demonstrates that Member States shall act in good faith by co-operating and providing the Commission will the relevant information it requests; Commission v Luxembourg. 2. Does Mr Steymann have any legal right to pursue the matter himself in EU Law? Mr Steymann will not be able to bring an action to the ECJ on the basis that his interests have been harmed by the UK’s failure to implement the Directive; Star Fruit Co. v Commission. However, he will have two options available to him. He can either make a complaint to the Commission, which might result in the Commission initiating proceedings under Article 258 TFEU, or he can bring proceedings in the UK courts under the principle of direct effect. Once a complaint is received by the Commission, a decision will then be made as to whether proceedings ought to be initiated against the UK. In making this decision, the Commission will insist on its discretionary power to determine whether it is worth commencing proceedings. In Commission v Greece a complaint was made to the Commission, which resulted in proceedings being commenced. The Commission, in its reasoned Opinion, established that there was an interest in bringing proceedings and the action was deemed admissible in so far as it concerned the subject matter of the dispute. EU law infringements may also be challenged before national courts, through the principle of direct effect. As such, Mr Steymann may be able to pursue the matter himself the UK courts he if can demonstrate that the Directive has direct effect and that there exists an appropriate remedy. Once the UK implements the Directive, Mr Steyman will most likely sell more gas boilers as he appears to be disadvantaged by the fact that the UK has failed to implement the new Directive. It will be more expensive to manufacture the equipment in the UK in compliance with EU law, which will prevent UK manufacturers from being able to sell the boilers at a much lower price. The principle of direct effect allows Member States to be challenged at national level by litigants seeking to rely on the direct effect of EU law. Mr Steymann will therefore be capable of taking advantage of the direct effect principle, which enables individuals to immediately invoke a European provision before a national or European court as highlighted in Van Gend en Loos v Nederlandse Administratie der Belastingen. As the consequence in the instant scenario is between an individual and the State, Mr Steymann will be able to invoke the European provision through vertical direct effect. For a Directive to have direct effect, nonetheless, the obligations must be clear, precise and unconditional. This was identified in Van Duyn v Home Office it was h eld by the Court of Justice that Article 3 (1) of the Residence and Public Policy, Security and Health Directive 54/221 was sufficiently precise to be capable of having direct effect, despite the fact that the scope of public policy and public security would require determination by the Court. Therefore, it is likely that the Directive on the environmental performance of gas boilers will be capable of having direct effect if it is shown to be clear and precise as enunciated in Defrenne v Sabena. It may also be deemed ‘unconditional’ on the basis that Member States are obliged to manufacture gas boilers in accordance with the provisions in the Directive; Van Gend en Loos v Administratie der Belastingen. However, if the Directive is subject to additional measures, then it will not be capable of having direct effect; Costa v ENEL. Overall, it seems as though the Commission has the ability to bring an end to the UK’s infringements of EU law by commencing proceedings in the European Court of Justice. As there has been a failure by the UK to fulfil its treaty obligations, it is likely that the Commission will be successful in taking action against the UK. Nevertheless, the UK will still be able to put forward a number of defences, though it is unlikely that these will prove to be a success. Since the UK has made it clear that the Directive will be implemented shortly, the principle of sincere loyalty will most likely apply. Mr Steymann also has a legal right to pursue the matter himself through the national courts under the principle of direct effect. Before doing so, however, it would be appropriate for him to make a complaint to the Commission as this could then lead to the initiation of proceedings. In bringing the action himself, Mr Steymann will be required to show that the Directive has direct effect and that there is an appropriate remedy available. Bibliography Books D Chalmers and G Davies. European Union Law: Cases and Materials, (London: Cambridge University Press, 2010). S Anderson. The Enforcement of EU Law: The Role of the European Commission, (Oxford: Oxford University Press, 2012). S Weatherill. Cases and Materials on EU Law, (Oxford: Oxford University Press, 2012). Journals EUR-Lex. ‘Document 12008E258’ (2008) [27 July, 2014]. Europa. ‘The Direct Effect of European Law’ (2010) [27 July, 2014]. European Commission. ‘Infringements of EU Law’ (2010) European Commission Application of EU Law, [27 July, 2014]. R Haynes. ‘Case C-582/08 Commission v United Kingdom’ (2010) De Voil Indirect Tax Intelligence, Volume 12 Issue 173. R Rawlings. ‘Engaged Elites: Citizen Action and Institutional Attitudes in Commission Enforcement’ (2006) European Law Journal, Volume 6, Issue 4, 447. R White and A Dashwood. ‘Enforcement Actions under Articles 169 and 170 EEC’ (1989) European Law Review, Volume 14, 388-389. S Enchelmaier. ‘Always at Your Service (Within Limits): The ECJ’s Case Law on Article 56 TFEU (2006-11)’ (2011) European Law Review, Volume 36, No 5, 623. Legislation Treaty on the Functioning of the European Union (TFEU) Case Law Alfons Lutticke GmbH v Commission Case 48/65, [1962] ECR 501 Commission v Austria Case 10/10, [2011] ECR I-5389 Commission v Austria Case 194/01, [2004] ECR I-4579 Commision v France Case 159/94, [1997] ECR I-5815, para 103 Commission v France Case 232/78, [1979] ECR 2729 Commission v Germany Case 191/95, [1998] ECR I-5449, para 44 Commission v Germany Case 74/91, [1992] ECR I-5437 Commission v Greece Case 240/86, [1988] ECR 1835 Commission v Italy Case 289/94, [1996] ECR I-4405, para 16 Commission v Italy Case 78/00, [2001] ECR I-8195, point 65 Commission v Italy Case 101/84, [1985] ECR 2629 Commission v Luxembourg Case 473-93, [1996] ECR I-3207, para 19 Commission v Luxembourg Case 490/09, [2005] ECR I-9811 Commission v Netherlands Case 359/93, [1995] ECR I-157, para 15 Commission v Portugal Case 20/09, [2011] ECR I-2637 Commission v Spain Case 195/02, [2004] ECR I-7857 Commission v United Kingdom Case C-582/08, (15 July, 2010) Costa v ENELCase 6/64 [1964] ECR 593 Defrenne v Sabena Case 43/75 1976 ECR 455 Germany v Commission T-258/06, [2010] ECR II-02027, para 153 Joined Cases 142/80 and 143/80 Essevi and Salengo [1981] ECR 1413, para 15 Star Fruit Co. v Commission Case 247/87, [1989] ECR 291 Van Duyn v Home Office Case 41/74 [1975] Ch 358 ECJ Van Gend en Loos v Administratie der Belastingen Case 26/62 [1963] ECR 1 Van Gend en Loos v Nederlandse Administratie der Belastingen Case 1953, [1953] ECR 1