Commission communication better monitoring of the application of Community law
Date: 2002-12-11
Institutions: European Commission
Subjects: EU control, application of EU law, infringement procedure (EU), national implementing measure

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 16.5.2003
COM(2002)725 final/4

Corrigendum
La dernière phrase du point (2) de la page 15
a été rectifiée.
Concerne uniquement la version EN.

COMMISSION COMMUNICATION

BETTER MONITORING OF THE APPLICATION OF COMMUNITY LAW

TABLE OF CONTENTS

COMMISSION COMMUNICATION ON BETTER MONITORING OF THE
APPLICATION OF COMMUNITY LAW

1.

2.

2.1.

Introduction.................................................................................................................. 3

Prevention of infringements......................................................................................... 4

Improving cooperation between the Commission and the Member States in the field
of prevention ................................................................................................................ 5

2.2.

Monitoring and facilitating the proper transposal of directives ................................... 6

2.2.1.

Improving transparency and knowledge of Community law....................................... 7

2.2.2.

Increasing cooperation before expiry of the transposal deadline................................. 7

2.2.3.

Improving the notification of transposal measures ...................................................... 9

2.3.

Providing more information on Community law ......................................................... 9

3.

3.1.

3.2.

3.3.

3.4.

3.5.

Monitoring the application of Community law and taking action against
infringements ............................................................................................................. 10

Effective use of the available instruments in accordance with the seriousness of the
infringements ............................................................................................................. 10

Complaints and their importance for monitoring the application of Community law12

Closer cooperation between the Member States and the Commission in investigating
infringements (strict application of Article 10 EC).................................................... 14

Better enforcement of Community law...................................................................... 14

Improving notification and monitoring the conformity of national measures
implementing directives ............................................................................................. 17

3.5.1.

Faster notification where transposal is outstanding ................................................... 17

3.5.2.

Speeding up the process of bringing implementing legislation into line ................... 18

4.

5.

Preventing repetition of infringements ...................................................................... 19

Conclusions and final provisions ............................................................................... 20

2

COMMISSION COMMUNICATION ON BETTER MONITORING OF THE
APPLICATION OF COMMUNITY LAW

1. 

INTRODUCTION

To ensure that Community policies are effectively implemented and have the desired effect,
thereby gaining the public’s confidence, the institutions must now try not just to improve the
quality of legislation but also to ensure further downstream that its application is efficiently
monitored.  In  this  regard,  the  discussion  on  the  White  Paper  on  European  Governance,1
focuses on the quality of Community legislation and the improvement of monitoring.

The two issues are clearly linked. The quality of legislation drafting, which was the subject of
the Commission communication Better lawmaking,2 is of  vital  importance,  influencing  both
the  capacity  of  Member  States  to  implement  Community  law  and  the  effectiveness  of
Community  legislation  and  its  monitoring  by  Community  institutions.  Potential  difficulties
with the application and monitoring of Community law should be taken more into account at
the stage at which legislative proposals are drafted, particularly by giving greater thought to
the  choice  of  legislative  instrument  (directive  or  regulation)  and  assessing  in  advance
foreseeable difficulties with incorporation into national law and potential litigation.

However,  this  communication  addresses  the  second  aspect  –  the  monitoring  task  entrusted
exclusively to the European Commission in its exclusive role as “guardian of the Treaty”. The
importance of this function is not widely known, even though it is essential to the interests of
European  citizens,  as  is  regularly  pointed  out  by  the  European  Parliament’s  Committee  on
Petitions and the European Ombudsman.

The Commission’s responsibility for monitoring the application of Community law is set out
in Article 211 of the EC Treaty. Article 226  provides  that  the Commission may take  action
against a Member State for failing to fulfil an obligation under the Treaty. Over the years the
Commission  has  significantly  developed  the  pre-litigation  phase,  commonly  known  as  the
“infringement  procedure”.3  Action  in  respect  of  failure  to  fulfil  Treaty  obligations  and  the
infringement procedure which precedes it are non-exclusive parts of the same objective, that
of  enforcing  Community  law.  As  the  Treaty  does  not  stipulate  a  specific  choice  of  these
means,  it  is  up  to  the  Commission  to  continually  adapt  them  to  carry  out  its  mission
effectively  and,  where  necessary,  make  innovations  designed  to  improve  the  application  of
Community law.

While  the  current  control  and  referral  procedure  has  proved  its  effectiveness  with  a  rate  of
referral to the Court of Justice of only 10% of suspected infringements (see box on p. 4), an
automatic  increase  in  this  work  following  enlargement  is  to  be  expected  and  account  must
also be taken of the extension of the Community acquis. This communication sets out various
actions to improve the monitoring of the application of Community law.

1

2

3 

COM(2001)428 final.
Communication from the Commission on an action plan for Simplifying and improving the regulatory
environment, COM(2002)278 final.
This communication  is  concerned  solely  with  the  application  of  Article  226  of  the  EC  Treaty  and  its
corresponding article in the Euratom Treaty, Article 141. It does not cover infringement actions under
other provisions of Community law such as competition cases.

3

                                                
It  first  distinguishes  between  preventive  measures  carried  out  in  sincere  and  reciprocal
cooperation between the Commission and the Member States to avoid infringements (Article
10 of the EC Treaty)4. It then sets out the conditions for effective management of controls and
action against infringements. This action is based on experience built up over the years. The
communication  brings  together  and  highlights  a  series  of  measures  resulting  from  practical
experience. In doing so, it complies with its duty of education and openness in a complex area
of exclusive responsibility of the Commission.

An efficient procedure5

The prosecution of suspected infringements of Community legislation is conducted in

several stages, intended to dispel any doubts or put an end to the infringement in question.

Potential infringements are first recorded in a single register, irrespective of how they
were identified; they can be complaints made directly to the Commission or forwarded from
the  European  Parliament’s  Committee  on  Petitions  or  from  the  European  Ombudsman  or
cases detected by the Commission’s own ex-ante or proactive work.

As the examination of each  case proceeds, the Commission sends the  Member  State
concerned, first, a “letter of formal notice”, then a “reasoned opinion” and, as a last resort, if
the  alleged  infringement  continues,  the  Commission  refers  the  case  to  the  Court  of  Justice
bringing  infringement  proceedings.  These  successive  stages  make  maximum  use  of
information and cooperation, leading in many cases to the infringement being terminated and
the case closed.

According  to  the  statistics  for  2001,  approximately  half  (49%)  of  the  suspected
infringements recorded gave rise to a letter of formal notice; slightly more than half (54%) of
the  letters  of  formal  notice  were  followed  by  reasoned  opinions  and  approximately  a
fifth(21%)  came  to  court.  In  the  end,  only  about  a  tenth  (10.3%)  of  the  suspected
infringements originally recorded culminated in infringement proceedings.

Registrations of new  cases  currently lie  at  around  2000 a  year;  for  technical  reasons
the 2001 figure was a little above the average at 2179. The caseload is comparable with the
number of cases finally concluded either by closure or by referral to the Court, with the result
that the ongoing caseload is stable at around 4000 (3868 cases on 10 June 2002). This figure
seems relatively small in the end in view of the number of Member States and the size of the
Community acquis,  which  is  made  up  of  several  thousand  items  of  secondary  legislation  in
addition to the Treaty. The rapid turnover of cases in hand is reflected in the short handling
time  of  procedures,  three-quarters  of  which  have  either  been  closed  or  have  reached  the
reasoned opinion stage within the first year following their registration.

2. 

PREVENTION OF INFRINGEMENTS

The  prime  responsibility  for  implementing  Community  law,  both  the  Treaty  and  secondary
legislation  (regulations,  directives  and  decisions),  lies  with  the  Member  States.  However,

4

5

The Court of Justice has established the reciprocal nature of the sincere cooperation imposed by Article
10 on both the Member States and the Community institutions.
For further details on the statistical aspects of the procedure, please see the annual report on monitoring
the application of Community law (2001) (OOPEC).

4

                                                
cooperation  between  the  Commission  and  the  Member  States  is  a  crucial  element  in  the
effective monitoring of the application of Community law.

By  requiring  the  Commission  to  respect  a  pre-litigation  administrative  stage  prior  to  the
infringement  proceedings,  Article  226  of  the  EC  Treaty  enshrines  the  adversarial  nature  of
this  procedure  and  the  duty  of  sincere  cooperation  between  the  Member  States  and  the
Community institutions. Since the purpose of this pre-litigation stage is to enable the Member
State to conform voluntarily with the requirements of the Treaty, its  effectiveness is closely
linked with contacts between the Commission and the Member State. Further progress must
be  made  in  improving  this  cooperation,  well  before  any  initiation  of  infringement
proceedings.

This implies a general upgrading or extension of a number of structures for cooperation with the
Member  States  (2.1).  Particular  attention  should  be  paid  here  to  monitoring  the  transposal  of
directives  (2.2).  The  network  of  contacts  recommended  by  the  White  Paper  on  Governance
and  the  Commission  Communication  Better  Lawmaking  would  provide  a  framework  for
publicising and discussing these improvements.

2.1. 

Improving cooperation between the Commission and the Member States in the
field of prevention

Preventive  action  to  enforce  Community  law  begins  with  selecting  the  best  instrument.  But
once a selection has been made, it continues with cooperation  on the implementation of  the
legislation. A variety of practical cooperation instruments have already been tried out with a
view to preventing infringements. These include:

(1) 

(2) 

(3) 

Interpretative  communications  on  a  specific  matter  of  Community  law  (both  the
Treaty and secondary legislation)6.

The  obligation  to  notify  the  Commission  of  draft  technical  regulations  arising  from
Directives 98/34/EC (goods) and 98/48/EC (information society services)7 in the non-
harmonised sector of the internal market.

The  regular  publication  of  statistics  by  the  Commission  in  the  internal  market
scoreboard; the annual report on monitoring the application of Community law which
aims  to  promote  peer  pressure  between  the  Member  States  by  creating  a  form  of
mutual monitoring of efforts to apply European legislation. Commission reports on the
application of directives provided for by certain of them play a similar role.8

(4) 

Anticipation  of  major  events,  linked,  for  example,  to  infrastructure  projects:
experience  shows  that  when  investments  have  to  be  made  on  a  national  scale  the

6

7

8

For  example,  interpretative  communications  on  the  major  freedoms  in  the  internal  market  and  public
procurement  or  on  the  removal  of  tax  barriers  to  the  cross-border  provision  of  occupational  pensions
(OJ C165, 8.6.2001, p. 4).
The  application  of  these  directives  makes  it  possible,  through  prior  notification  of  draft  national
technical rules, to identify possible barriers to trade before they enter into force and thus to avoid the
need to initiate many infringement procedures. This procedure also enables a particular emphasis to be
placed on the principle of mutual recognition (by the introduction of mutual recognition clauses). The
Court of Justice has also ruled that failure to notify a technical regulation can be invoked in a dispute
between individuals; it is then for the national judge to refuse to apply this provision and to establish the
consequences for the contract brought before him in the light of national law.
Example:  report  on  the  application  of  Council  Directive  98/49/EC  of  29.6.1998  on  safeguarding  the
supplementary pension rights of employed and self-employed persons moving within the Community.

5

                                                
national  authorities involved are occasionally inclined  to take  insufficient  account  of
Community  regulations.9  This  approach  has  been  followed  in  the  field  of  public
procurement,  in  the  case  of  both  the  Treaty  and  secondary  legislation,  and  could
usefully  be  extended  to  the  prevention  of  infringements  in  the  area  of  the
environment10 and, if appropriate to other sectors.

information  and 

Training, 
for  national
administrations  and  judges,  along  the  lines  of  the  Grotius  II  civil  and  criminal
programmes,11  or,  in  connection  with  enlargement,  twinning  arrangements  between
national administrations.12

transparency  campaigns 

intended 

For the purposes of the exchange of information and good practice, regarding both the
Treaty and secondary legislation, the use of expert committees and networks to assist
the Commission, or the setting up of ad hoc groups of experts in particular fields.13

(5) 

(6) 

Actions

(cid:1)  The Commission will draw lessons from the best instruments and practices set up over the
years, developing them and extending them to other areas of Community law, in order to
boost the preventive stage of monitoring.

(cid:1)  The Commission will consider the need for a training programme in Community  law  for
national  administrations  and  the  judiciary  (which  could  be  called  the  “Justinian”  or
“Irnerio”14 programme)14.

2.2.  Monitoring and facilitating the proper transposal of directives

For  the  purposes  of  monitoring  the  application  of  Community  law,  directives  require
particular  attention  because  of  the  specific  requirements  for  transposal  incumbent  on  the

9

10

11

12

13

14

In its Green Paper on public procurement, the Commission was thus able to state that the anticipation
of  certain  events  was  an  effective  preventive  element,  limiting  considerably  the  risk  of  incorrect
application  (e.g.:  dialogue  with  the  Greek  authorities  about  the  major  works  for  the  2004  Olympic
Games and with the Italian authorities for the Winter Olympics).
In particular, to fulfilment of obligations deriving from the environmental impact Directive 85/337/EC
on the assessment of the effects of certain public and private projects.
Council Regulation (EC) No 743/2002 of 25 April 2002 establishing a general Community framework
of  activities  to  facilitate  the  implementation  of  judicial  cooperation  in  civil  matters  and  Council
Decision of 28 June 2001 establishing a second phase of the programme of incentives and exchanges,
training and cooperation for legal practitioners (Grotius II Criminal).
European  Governance  -  A  white  paper,  COM(2001)428,  p.49.  The  possibility  of  extending  such
twinning  arrangements  to  all  Member  States’  administrations  had  already  been  mentioned  in  the
Governance White Paper.
The  Commission  has  set  up  such  groups  of  government  experts  in  the  field  of  the  directives  on  the
posting of workers (96/71/EC) and the “anti-discrimination” directives (2000/43/EC and 2000/78/EC).
These groups met before the transposal date and provided a forum for discussion and the exchange of
best  practice.  In  the  same  way,  Regulation  (EC)  1408/71  set  up  the  Advisory  Committee  on  Social
Security  for  Migrant  Workers,  made  up  of  government  experts,  which  is  playing  a  very  active  role
before  the  Commission  presents  its  proposals  for  updating  this  Regulation.  Another  example  is  the
network of contact points on professional qualifications.
Named  after  the  celebrated  lawyer  from  the  University  of  Bologna  who  at  the  beginning  of  the  12th
Century introduced the concept of “common law”, based on the traditions of “Roman law”, which was
common to many countries of Medieval Europe.

6

                                                
Member  States.15  Cooperation  between  the  Commission  and  the  national  authorities  must
therefore be developed at a very early stage.

2.2.1. 

Improving transparency and knowledge of Community law

By  31  December  2001,  the  Member  States  had  on  average  notified  97.4%  of  national
implementing  measures  necessary  for  the  implementation  of  directives  (in  all  sectors),  an
improvement  over  2000  (96.6%).  This  average  score  is  the  highest  since  1992,  although  it
remains below the target of 98.5% set by the Stockholm European Council for the transposal
of legislation relating to the single market alone.

The  regular  publication  by  the  Commission  of  transposal  rates  has  a  beneficial  effect  by
establishing  a  control  point  and  imposing  peer  pressure.  The  incentive  effect  of  this
information erga omnes could be further enhanced by the on-line publication of deadlines for
the  transposal  of  each  directive.  Sending  out  reminders  two  months  before  reaching  such
deadlines, using whatever means are most likely to get through to the target public, will be a
useful device.

Action

(cid:1)  The  Commission  will  publish  on-line,  via  a  Community  law  portal,  all  the  transposal
deadlines, the rates of transposal by sector and by Member State, and national transposal
measures.  The  most  appropriate  media  will  be  used  to  keep  the  public  up  to  date  with
transposal deadlines.

2.2.2. 

Increasing cooperation before expiry of the transposal deadline

The  quest  for  better  governance  in  the  application  of  Community  law  demands  better
evaluation and better use of  the transposal  period for  directives.  This  period  is  necessary  to
allow the adaptation of national rules and give economic and social operators time to prepare.
However, the Commission and the Member States, who are jointly responsible for the proper
application  of  Community  law, should also make use of  this  time  to  step  up  cooperation  to
ensure the swift and effective adaptation of national legislation.

Delays in transposing directives are all too often not the result of a deliberate refusal to act on
the  part  of  the  Member  State  but  of  domestic  administrative  problems  and  in  particular
problems of understanding often complex Community legislative texts.

Moreover, the Court of Justice has formally confirmed in its case law on Article 10 of the EC
Treaty  the  existence  of  an  obligation  of  cooperation  in  the  event  of  problems  with  the
implementation  of  Community  law,  an  obligation  which  for  the  Member  State  includes  the
possibility of submitting these problems for assessment by the Commission.16

To this end the Commission has for several  years been developing the  practice  of  “package
meetings”,  so  called  because  they  provide  an  opportunity  to  discuss  with  the  competent
national authorities any problems with transposal and all infringements detected or suspected
in  a  Member  State  for  a  given  sector.  At  present,  package  meetings  are  held  as  a  rule  only

15

16

It  should  be  pointed  out  that  in  this  communication  the  term  “transposal”  refers  only  to  directives,
although some regulations and decisions occasionally require national implementing measures.
Judgements of 15 January 1986, Case C-52/84 Commission v Belgium, [1986] ECR 89, point 16, and 2
February 1989, Case C-94/87 Commission v Germany, [1989] ECR 175.

7

                                                
after  an  infringement  procedure  has  been  initiated  against  the  Member  State.  It  would  be
helpful if such meetings were held at an earlier stage.

Although greater attention is now paid to the quality of legislative proposals and Community
texts  in  force  are  periodically  reviewed,  Community  law  can  still  be  complex.  The
Commission  is  therefore  willing  to  provide  Member  States  with  “technical  assistance”  in
transposing  legislative  texts.  Package  meetings  could  be  used  to  examine  with  the  Member
State concerned any problems it might be encountering in transposing Community texts and
to  shed  light  on  the  matter.  In  the  same  spirit,  some  of  the  the  committees  established  by
Community legislation could provide an adequate forum. Such assistance could also include
prior examination by the services of the Commission, at the request of the Member State, of
the transposal measures proposed; this prior examination would not affect the Commission’s
right to raise any errors of transposal at a later stage.

Another  approach  to  cooperation  at  an  early  stage  could  be  based  on  the  drafting  by  the
services  of  the  Commission,  in  certain  specific  cases,  of  guidelines  for  transposal,  which
would be recommended to the national authorities. The Member States could be involved in
drafting them, though this would have to be made clear in the basic document.

Nevertheless,  it  is  sometimes  difficult  for  the  Commission  to  identify  the  appropriate
contact(s) with whom to liaise in further discussions. The bodies in the Member States with
responsibility  for  transposing  Community  directives  vary  depending  on  the  subject  under
consideration  and  the  way  in  which  the  individual  Member  State  is  organised.  Often,  too,
transposal  requires  action  by  more  than  one  administrative  and/or  judicial  body.  This
proliferation of actors is more pronounced in the case of federal or decentralised States. The
setting  up  of  appropriate  coordination  points  in  Member  States  which  do  not  already  have
them  would  enable  these  difficulties  to  be  overcome  by  providing  the  Commission  with  a
single point of contact for questions concerning  transposal, for the application of Community
law  and  for  coordination  with  national  ministries  and  regional  or  local  authorities.  These
“horizontal”  contacts  would  serve  as  the  network  of  correspondents  desired  by  the
Commission  (see  introduction,  paragraph  2).  The  unified  chairmanship  of  the  package
meetings in the Member States is a kind of precursor for such a scheme.

Actions

(cid:1)  The Commission intends to make more generalised use of “package meetings”. It will do
its best to encourage the creation within the Member States of single  coordination points
responsible for the application of Community law.

(cid:1)  The services of the Commission will contact the Member States concerned in the month in
which the directive is to be adopted and in particular will offer “technical assistance” in the
event of transposal problems; they will declare themselves willing to examine preliminary
draft transposal measures and if necessary will organise a package meeting.

(cid:1)  Where appropriate, the services of the Commission, in liaison with the national authorities,

will draw up “transposal guidelines”.

8

2.2.3. 

Improving the notification of transposal measures

The  practical  arrangements  for  notifying  transposal  measures  have  never  as  yet  been
specified, the only obligation on the Member States being to notify the Commission of them.
This situation has long been a source of unnecessary delays and difficulties.17

As part of the quest for greater effectiveness in monitoring both the transposal itself and the
conformity of the national transposal measures, the procedures for this communication should
be  defined  and  restated  systematically  in  each  proposal  for  a  directive,  including  the
obligation to establish a “concordance table.”

Access  to  Community  law  and  monitoring  of  conformity  will  also  be  made  easier  by  the
electronic  communication  of  transposal  measures  which  will  be  developed  as  part  of  the
“EULEX  III”  project,  the  aim  of  which  is  to  interconnect  the  national  official  publications
databases by using a single portal for access to Community law.

(cid:1)  The Commission will include in proposals for a directive:

Actions

– 

– 

– 

an  obligation  on  Member  States  to  include  a  “concordance  table”  with  the
communication of transposal measures (at national and/or regional or local level);

a  standard  method  of  electronic  communication  of  transposal  measures  (single
electronic form);

a  reference  to  the  Commission’s  Secretariat-General  as  a  central  communication
point.

(cid:1)  The  Commission  will  successfully  conclude  the ”Eulex  III”  project  aimed  at  networking

national databases to allow electronic communication of transposal measures.

2.3. 

Providing more information on Community law

Better public information or improved participation in the decision-making processes improve
the quality of decisions. They also help to prevent difficulties of interpretation or subsequent
disputes.  That  is  the  purpose  of  the  press  releases  issued  by  the  Commission  on  ongoing
infringement  proceedings,  which  provide  information  to  all  sorts  of  people  concerned  by
same  problem  as  the  complainant.  The  Community  law  portal  connected  to  the  EUR-LEX
database (see paragraph 2.2.1) will be designed in such a  way  as to be  accessible to a wide
audience and to provide continuous information on decisions and discussions relating to the
application of Community law in the Member States.

Various  areas  of  Community  policy-making  are  conducive  to  specific  possibilities  for
informing the public on the policies established and involving them in their application. The
Aarhus  Convention  on  access  to  information,  public  participation  in  decision-making  and
access  to  justice  in  environmental  matters  provides  a  comprehensive  example  of  this
approach.  The  Commission  has  already  presented  proposals  for  directives  to  the  European
Parliament and the Council on the first two “pillars” of this Convention, dealing with access

17

For example, unjustified initiation or continuation of the infringement procedure, difficulty of access to
transposal measures, problems in monitoring conformity.

9

                                                
to  information  and  public  participation  in  decision-making  respectively.18  The  practical
application of such directives by the Member States after they have been  enacted should be
evaluated  so  as  to  serve,  if  appropriate,  as  an  inspiration  for  subsequent  Community
legislation.

Action

(cid:1)  The Community law portal will offer general information on the application of the law and

access to it, in a layman-friendly form, linked to the EUR-LEX database.

(cid:1)  The  application  of  directives  for  the  implementation  of  the  Aarhus  Convention  will  be

evaluated in terms of information for and effective involvement of the public.

3. 

MONITORING  THE  APPLICATION  OF  COMMUNITY  LAW  AND  TAKING  ACTION
AGAINST INFRINGEMENTS

The development of cooperation between the Commission and the Member States to prevent
situations  of  non-compliance  with  Community  law  does  not  replace  the  Commission’s
responsibility  for  monitoring  the  application  of  Community  law,  initiating  proceedings
against infringements and, if necessary, bringing legal action for failure to fulfil an obligation.
This  Communication  sets  out  the  priorities  that  the  Commission  will  apply  with  a  view  to
optimising management of the instruments provided for in the Treaty (3.1). It also covers the
handling  of  complaints,  a  vital  means  of  detecting  infringements  (3.2),  and  the  necessary
cooperation  of  the  Member  States  in  investigating  cases  (3.3).  Concrete  action  against
infringements  is  then  addressed,  with  separate  sections  covering  first  situations  of
non-compliance  with Community legislation, whether  directly or indirectly  applicable  (3.4),
and  second  the  specific  situation  of  non-notification  and  non-conformity  in  relation  to
directives (3.5).

3.1. 

Effective use of the available instruments in accordance with the seriousness of
the infringements

It is established case law of the Court of Justice that the Commission has discretionary power
in relation to infringements and is the sole judge of when to bring proceedings concerning the
application  of  Community  law.19  While  stressing  that  this  power  cannot  be  exercised
arbitrarily,20  the  European  Ombudsman  has  also  repeatedly  referred  in  his  opinions  to  the
Commission’s discretionary power.21

The task of acting as “guardian” of the Community legal system entrusted to the Commission
by  Article  211  of  the  EC Treaty  means  that  it  is  responsible  for  adopting  the  necessary

18

19

20

21

Proposal  for  the  revision  of  Directive  90/313/EC  which  includes  provision  in  Article  6  that  Member
States must establish judicial or administrative remedies in the event of refusal of access. Proposals for
a Directive of the European Parliament and of the Council providing for public participation in respect
of the drawing up of certain plans and programmes relating to the environment and amending Council
Directives 85/337/EEC and 96/61/EC. See COM(2002)839 final.
Judgment of 1 June 1994 in Case C-317/92 Commission v Germany [1994] ECR I-2039; judgment of
10 May 1995 in Case C-422/92 Commission v Germany [1995] ECR I-1097.
Critical  remarks  relating  to  the  P.S.  Emfietzoglou  –  Macedonian  Metro  Joint  Venture  complaint
(995/98/OV).
See  European  Ombudsman’s  1997  own-initiative  inquiry  into  the  Commission’s  administrative
procedures for dealing with complaints concerning Member States’ infringement of Community law.

10

                                                
internal organisation measures to allow it to carry out its task effectively and impartially, in
accordance with the Treaty.

With  this  in  mind,  the  Commission,  in  its  White  Paper  on  Governance,  announced  that  it
would conduct surveillance and bring proceedings against infringements effectively and fairly
by  applying  priority  criteria  reflecting  the  seriousness  of  the  potential  or  known  failure  to
comply with the legislation.22 Filling in the framework sketched out by the White Paper, the
criteria  are  based  on  accumulated  experience.  They  rank  the  following  infringements  as
serious:

(a) Infringements that undermine the foundations of the rule of law

– 

– 

– 

Breaches of the principles of the primacy and uniform application of Community law
(systemic  infringements  that  impede  the  procedure  for  preliminary  rulings  by  the
Court  of  Justice  or  prevent  the  national  courts  from  acknowledging  the  primacy  of
Community  law,  or  provide  for  no  redress  procedures  in  national  law:  examples
include  the  failure  to  apply  the  redress  procedures  in  a  Member  State  and  national
court  rulings  that  conflict  with  Community  law  as  interpreted  by  the  Court  of
Justice).

Violations  of  the  human  rights  or  fundamental  freedoms  enshrined  in  substantive
Community  law  (e.g.  interference  with  the  exercise  by  European  citizens  of  their
right to vote, refusal of  access to employment or social  welfare rights  conferred by
Community  law,    threats  to  human  health  and  damage  to  the  environment  with
implications for human health).

Serious damage to the Community’s  financial interests  (fraud  with implications  for
the  Community  budget,  or  violation  of  Community  law  in  relation  to  a  project
receiving financial support from the Community budget23).

(b) Infringements that undermine the smooth functioning of the Community legal system

– 

– 

– 

22

23

Action  in  violation  of  an  exclusive  European  Union  power  in  an  area  such  as  the
common commercial policy; serious obstruction of the implementation of a common
policy.

Repetition of an infringement in the same Member State within a given period or in
relation  to  the  same  piece  of  Community  legislation;  these  are  mainly  cases  of
systematic  incorrect  application  detected  by  a  series  of  separate  complaints  by
individuals.

Cross-border  infringements,  where  this  aspect  makes  it  more  complicated  for
European citizens to assert their rights.

White  Paper  on  European  Governance,  p.  45:  Priority  attached  to  treatment  of  possible  breaches  of
Community law.
In such cases, the new Financial Regulation in force from January 2003 will oblige the Commission to
suspend the financial assistance to the project concerned.

11

                                                
– 

Failure to comply with a judgment  given by the Court of Justice against a Member
State on an application from the Commission for failure to comply with Community
law (Article 228 of the EC Treaty).

(c)  Infringements  consisting  in  the  failure  to  transpose  or  the  incorrect  transposal  of
directives, which can in reality deprive large segments of the public of access to Community
law and actually are a common source of infringements.

The above criteria will help the Commission to make the best use of the various mechanisms
designed to restore a situation in line with the Treaties as rapidly as possible, bearing in mind
that the Commission’s purpose in monitoring the application of Community law and bringing
proceedings  against  infringements  is  not  to  “punish”  a  Member  State,  but  to  ensure  that
Community law is applied correctly.

In practice, where it is found that an infringement  meets these priority criteria, infringement
proceedings  will  be  commenced  immediately  unless  the  situation  can  be  remedied  more
rapidly by some other means. Other cases — of lower priority — will be handled on the basis
of  complementary  mechanisms,  detailed  below,  which  does  not  rule  out  the  possibility  of
bringing proceedings for failure to fulfil an obligation. This approach will meet a concern for
efficiency — more rapid and effective intervention including where proceedings for failure to
fulfil  an  obligation  would  not  be  the  most  appropriate  mechanism  —  while  ensuring  equal
treatment  for  the  Member  States  and  for  the  different  channels  for  identifying  presumed
infringements  (complaints,  cases  identified  by  the  Commission  itself,  cases  referred  by  the
European Parliament or the European Ombudsman).

When  the  annual  report  on  the  application  of  Community  law  is  discussed  by  the
Commission,  application  of  the  priority  criteria  will  be  assessed.  This  will  happen  in  June.
The report will point the way for subsequent monitoring of Community law and action against
infringements;  lessons  might  be  drawn  with  a  view  to  improving  the  quality  of  legislation
itself.  Its  conclusions  will  also  be  taken  into  account  when  the  annual  work  programme  is
adopted  in  September  of  each  year.  They  will  be  presented  during  the  public  debate  at
Parliament’s plenary session.

Action

(cid:1)  The Commission will apply the priority  criteria relating to the seriousness  of breaches in
order to manage its monitoring work and its action against infringements rapidly and fairly,
in an open dialogue with citizens and with the Member States.

(cid:1)  The  application  of  the  priority  criteria  will  be  assessed  annually,  when  the  report  on  the

monitoring of the application of Community law is discussed.

3.2. 

Complaints and their importance for monitoring the application of Community
law

As  the  Commission  has  stressed  on  several  occasions,  complaints  are  a  vital  means  of
detecting infringements of Community law.

12

While the volume of complaints registered rose markedly between 1996 and 1999, 2000 saw
a decline. The number rose again between 2000 and 2001, none the less remaining below the
maximum reached in 1999.24

Although  most  infringement  cases  registered  come  to  the  Commission’s  notice  via
complaints,  such  cases  give  rise  only  to  a  very  small  number  of  letters  of  formal  notice.  In
2001,  only  7%  of  complaints  registered  by  the  Commission  were  followed  by  a  letter  of
formal notice, and only 1% by a reasoned opinion25 (see box, page 4). Complaints registered
are  thus  sorted  effectively  so  as  to  follow  up  those  where  action  is  justified  and  to  resolve
situations of alleged infringement quickly;26 in many  cases the pre-litigation examination of
complaints is enough to prompt the Member States to put the situation right.

In a Communication to the European Parliament and European Ombudsman on relations with
the complainant in respect of infringements of  Community law (COM(2002) 141 final),  the
Commission  confirmed  its  willingness  to  handle  all  complaints  from  citizens,  by  taking
action,  where  appropriate,  against  the  alleged  infringement.  All  complaints  received  by  the
Commission are registered, without any selection, but the action to be taken in response to a
complaint is determined on the basis of the priority criteria referred to under 3.1. and on the
basis of whether it can be handled using complementary procedures. To make the action more
effective,  the  Commission  will  combine  in  a  single  infringement  proceeding  all  the
complaints relating to the same violation of Community law.

More generally, the Commission conducts its relations with complainants in accordance with
its code of  good  administrative  conduct, under which  complainants  are  entitled  to  receive  a
reply in line with their expectations, even if these exceed the Commission’s prerogatives.

Individuals  are  frequently  looking  for  simple,  practical  advice  rather  than  denouncing  an
infringement. It is also frequent that complainants turn to the Commission to obtain financial
redress for a breach of Community law, which can be granted only by a national court. Just as
frequently,  complainants  approach  the  Commission  to  obtain  amendment  of  a  national
provision where the Community has no powers to take mandatory action.

The obligation to reply under the code of good conduct should be applied in such a way that
citizens  are  given  careful  and  reasoned  replies,  with  useful  practical  advice  (e.g.  remedies
available  at  national  level,  conditions  for  obtaining  redress,  etc.).  Since  it  cannot  replace
lawyers for the parties, the Commission must ensure that it remains neutral and objective in
its replies. The Community law portal will contain valuable information and hints here.

24

25

26

The  statistical  peak  noted  in  2001  is  linked  to  the  fact  that  it  was  decided  that  year,  following  the
Ombudsman’s opinion on maladministration in the Thessaloniki Metro case, to systematically register
all  correspondence  from  civil  society  relating  to  Community  law  as  a  complaint,  irrespective  of  the
viability  of  a  potential  investigation  and  until  the  consolidated  version  of  the  rules  on  handling
complaints was adopted [COM(2002)141].
Nineteenth annual report on monitoring the application of Community law, Annex 2.
If we look at the origin of infringement proceedings (see 19th report annex, Tables 3 and 4), except in
2001,  the  proportion  of  proceedings  initiated  on  the  basis  of  a  complaint  is  lower  than  that  of
proceedings initiated on the basis of investigations by Commission departments (cases detected on the
Commission’s own initiative). If we add cases of non-notification, complaints account for a minority of
proceedings initiated. At the reasoned opinion stage, the proportion of proceedings initiated on the basis
of complaints is lower, in all years, than the proportion initiated on the basis of the Commission’s own
investigations, excluding non-notification cases.

13

                                                
Actions

(cid:1)  Complainants  will  be  given  clear  information  about  the  action  taken,  in  accordance  with
the commitments  given in  the Communication to  the European Parliament  and European
Ombudsman. In particular, the grounds for decisions taken on the investigation of a breach
of the law will be given on the most transparent basis.

(cid:1)  A clear administrative distinction will be drawn between correspondence likely to give rise
to the opening of an infringement file and other correspondence. All correspondence will
be processed in accordance with the code of good administrative conduct.

3.3. 

Closer  cooperation  between  the  Member  States  and  the  Commission  in
investigating infringements (strict application of Article 10 EC)

Cooperation between the Commission and national authorities must be constantly maintained,
since  it  is  vital  to  the  effective  monitoring  of  the  application  of  Community  law.  Such
cooperation can speed up the process of bringing a Member State into line and can thus more
rapidly attain the desired result of compliance with Community law.

During the investigation of infringements, considerable delays are often caused by difficulties
in  gathering  all  the  evidence  relating  to  an  infringement  owing  to  a  lack  of  cooperation  or
insufficient cooperation on the part of national authorities at all levels. The coordination fora
already mentionned (see paragraph 2.2.2) should play a useful role in this respect .

Member  States  must  therefore  be  reminded  of  their  duty  to  cooperate  in  good  faith  under
Article 10 EC. Manifest and  persistent  unwillingness  to  cooperate  on  the  part  of  a  Member
State would  make  infringement  proceedings  for breach of  Article  10  EC  inevitable.  For  the
sake  of  effectiveness  targeted  use  should  be  made  of  this  mechanism  (for  example  by
combining  a  given  Member  State’s  infringements  in  a  given  sector),  proceedings  should  be
accelerated to last no more than four months between the letter of formal notice and referral to
the Court, and wider publicity should be given to decisions.

Action

(cid:1)  Where Member States fail to take measures to ensure fulfilment of their obligations or to
facilitate the achievement of the Commission’s tasks, and in particular where the Member
State concerned is reluctant to cooperate in infringement proceedings, more systematic and
effective  recourse  will  be  had  to  Article  10  EC  in  conjunction  with  other  relevant  legal
bases in the Treaty.

(cid:1)  Where appropriate, this procedure could be underpinned by the Member responsible and/or

President of the Commission contacting the Member State directly.

3.4. 

Better enforcement of Community law

Generally speaking, failure to comply with Community law consists of violating the Treaty,
regulations or decisions or of incorrectly applying directives. Cases of the latter gave rise to
the  largest  number  of  letters  of  formal  notice,  reasoned  opinions  and  referrals  in  2001,  and
were identified following complaints (in most cases), or on the Commission’s own initiative.
Special  attention  will  be  paid  to  cases  of  failure  to  notify  measures  and  of  measures
incorrectly transposing directives (paragraph 3.5).

14

The White Paper on Governance stressed the fact that better compliance with Community law
was the joint responsibility  of  the  Member  States  and  the  European  institutions,  even  if  the
Commission  bore  the  ultimate  responsibility  for  securing  proper  application.  The  emphasis
was  on  the  direct  responsibility  of  the  national  courts  and  non-judicial  procedures  for
rectifying  infringements,  and  then  consideration  was  given  to  ways  of  making  the
Commission’s  review  more  effective.  The  opposite  order  was  followed  in  the  discussion  of
the  relationship  between  the  different  means  of  action:  instruments  that  complement  the
infringement procedure  will be implemented by the Commission to obtain rapid rectification
of  an  infringement  situation  without  necessarily  involving  immediate  compensation  for  loss
sustained,  the  purpose  of  extra-judicial  instruments  and  direct  actions  in  the  national  courts
being to provide the citizen with compensation.

(a) Mechanisms that complement proceedings for failure to fulfil an obligation

A number of  complementary mechanisms allowing  effective  and  rapid  handling  of  cases  of
non-compliance  have  been  identified.  A  case  handled  under  a  complementary  mechanism
may at any time be taken up by the Commission, and proceedings may be initiated for failure
to  fulfil  an  obligation.  The  positive  results  obtained  mean  that  more  frequent  use  of  such
mechanisms  can  be  recommended,  as  can  their  extension  to  other  branches  of  Community
law.  The  use  of  such  mechanisms  and  the  results  obtained  will  be  presented  in  the  annual
report on the monitoring of the application of Community law.

The following complementary mechanisms may be mentioned:

(1) 

(2) 

27

28

29

30

31

In  cases  of  numerous  and  repetitive  violations  of  the  Community  rules  in  a  given
sector,  overall  negotiation  with  the  Member  State  concerned  has  sometimes  proved
more effective than infringement proceedings.27

The  SOLVIT  problem-solving  network28  has  proved  its  effectiveness  in  the  internal
market  sphere.  A  Commission  Recommendation29  lays  down  the  working  principles
for SOLVIT centres and sets out their respective responsibilities and the deadline for
resolving  cases  (in  principle,  ten  weeks).  The  network  was  reformed  following  an
assessment  by  the  Commission,30  which  identified  ways  of  improving  the  system  in
order  to  turn  it  into  a  real  Community  tool  for  out-of-court  resolution  of  everyday
problems with the implementation of the internal market.31 The SOLVIT network will
be  able  to  handle  certain  complaints  which  raise  no  problem  of  incompatibility
between national law and Community law.

For  example,  in  the  case  of  the  problems  with  cross-border  vehicle  registration,  negotiation  with  the
national  authorities  concerned,  supplemented  by  an  interpretative  notice,  resolved  the  recurrent
difficulties with registration that were encountered by individuals.
“Effective  problem  solving  in  the  internal  market”,  Communication  from  the  Commission  to  the
Council,  the  European  Parliament,  the  Economic  and  Social  Committee  and  the  Committee  of  the
Regions, COM(2001) 702, 27 November 2001.
Commission Recommendation of 7.12.2001 on the principles for the use of the SOLVIT Network – the
problem-solving network in the internal market.
“Effective  problem-solving  in  the  Internal  Market”,  a  Communication  from  the  Commission  to  the
Council,  the  European  Parliament,  the  Economic  and  Social  Committee  and  the  Committee  of  the
Regions, COM(2001) 702 of 27 November 2001.
Numerous information measures aim to raise awareness of the SOLVIT network among the European
public  and  intermediaries  likely  to  know  of  cases  of  incorrect  application  to  submit  to  the  SOLVIT
network. Since 22 July 2002, a user-friendly on-line database allows SOLVIT centres (one per Member
State) to enter details of cases brought to their notice and to exchange information.

15

                                                
(3) 

(4) 

(5) 

The  “package  meetings”,  as  already  pointed  out,  allow  for  constant  dialogue  and
cooperation between the Commission and the  relevant authorities in  a  Member State
with  a  view  to  examining  a  “package”  of  cases  and  finding  solutions  outside  legal
proceedings.  These  meetings  are  a  practical  expression  of  the  subsidiarity  principle,
performing  an  educational  function  vis-à-vis  national  (as  well  as  regional  and  local)
authorities.

As regards the application of directives which have established rights for a very large
number of citizens and which require  case-by-case  handling  and  resolution,32 ad hoc
contact points can prove effective.

Establishing independent and specialised national authorities contributes in some cases
to  facilitating  achievement  of  the  Commission’s  tasks  in  its  role  as  guardian  of  the
Treaty.33

(b) Out-of-court resolution of infringements

The  attention  of  interested  parties  must  also  be  drawn  to  the  possibilities  which  exist  at
national  level  for  resolving  infringements  of  Community  law  out  of  court,  such  as  using  a
local,  regional  or  national  mediator.  In  its  White  Paper  on  Governance,  the  Commission
proposed  that  the  Member  States  link  up  existing  national  or  regional  ombudsmen  and
mediators34  in  a  network.  Some  could  receive  special  training  in  hearing  and  in  handling
complaints in the fields of the environment and health protection.

(c) Bringing cases before national courts

All  citizens  may  bring  cases  before  national  courts,  the  first  guardians  of  Community  law.
The European institutions and the Member States themselves could do more to promote this
possibility, in accordance with the principle of sincere cooperation.

In this connection, it is worth mentioning two recent or upcoming legislative initiatives by the
Commission:

–  the proposal for a Council Directive to improve  access to justice in cross-border disputes
by establishing minimum common rules relating to legal aid and other financial aspects of
civil proceedings,35

–  the  future  proposal  for  a  directive  on  access  to  justice  in  accordance  with  the
Aarhus Convention, being prepared by the Commission, which contains rules on access to
justice for non-governmental organisations in the event of environmental litigation.

32

33

34

35

An effective example in the internal market sphere concerns the recognition of diplomas, where there is
a  system  of  contact  points  or  coordinators  responsible  for  applying  the  directives  on  the  regulated
professions, to  which citizens can  turn  when  a  Member  State  infringes  their  rights  under  Community
law. The recent  proposal  for  a  Directive  on  professional  qualifications,  consolidating  and  simplifying
the existing 15 directives on the regulated professions, establishes and lays down rules on these contact
points,  while  also  requiring  them  to  inform  the  Commission  of  the  enquiries  with  which  they  are
dealing within two months of receiving them.
For  example,  the  independent  national  authorities  in  the  fields  of  competition,  data  protection  and
public  procurement  set  up  by  some  Member  States.  A  similar  contribution  is  made  by  national  and
regional ombudsmen that now exist in most Member States.
Cf. preceding footnote.
COM(2002)13  final,  18.1.2002.  This  directive  should  be  formally  adopted  by  the  end  of  December
2002.

16

                                                
In certain areas of the application of Community law where legal disputes are numerous, such
as the environmental sphere, it should be possible to have more effective recourse to national
courts,  hence  the  need  for  the  Commission  to  take  legislative  initiatives  to  facilitate  such
recourse.

Actions

(cid:1)  The  Commission  will  promote  the  development  of  complementary  systems  for  dealing
with cases of non-compliance with Community law in cooperation with the Member States
and in accordance with the specific characteristics of each sector. Where a case which does
not  meet  the  priority  criteria  (cf.  3.1)  could  be  investigated  rapidly  and  effectively  using
complementary mechanisms, the latter will be given preference.

(cid:1)  The  Commission  is  considering  adopting  a  proposal  for  a  directive  implementing  at
Community level the third pillar of the Aarhus Convention and will consider the possibility
of  a  supplementary  initiative  to  establish  non-judicial  procedures  for  the  handling  of
complaints.

3.5. 

Improving  notification  and  monitoring  the  conformity  of  national  measures
implementing directives

In the specific case of directives, an infringement can in theory result either from a delay in
transposal (in which case citizens are totally deprived of their rights under the directive), or
from the fact that the national legislation is not in conformity with the Community directive.
A distinction is made between these two situations in infringement proceedings.

3.5.1.  Faster notification where transposal is outstanding

Once  the  deadline  for  transposal  has  expired,  although  contacts  between  the  Commission
departments and the Member State must continue, it is possible for proceedings to be brought
in respect of the infringement of failing to notify the national implementing measures.

In order to improve uniform application of Community law, the Commission has, since 1990,
applied  specific  internal  rules  that  allow  it  to  systematically  monitor  notification  of  the
transposal of directives.

The system is based on empowering the Member of the Commission responsible for the field
concerned, together with the President, to send a letter of formal notice to the Member States
that  have  failed  to  transpose  directives  for  which  the  deadline  has  expired  and  have  not
notified the Commission of their national implementing measures. Since this system has been
tried and tested, it could be extended to the reasoned opinion stage in the absence of a reply
(and/or partial notification) from the Member State. In such cases, the infringement consists
merely in exceeding the deadline for transposal or for replying to the letter of formal notice,
leaving no room for assessing the substance of the case. This faster procedure should enable
the Commission to decide whether to take the case to the Court of Justice within six months
of the letter giving the Member State formal notice to act.

The database Asmodée II on the implementation of directives is used to analyse progress in
the  transposal  of  directives  for  which  the  deadline  has  expired.  A  system  for  notifying
Member States electronically is being developed.

17

The  Commission  will  look  at  the  possibility  of  developing  electronic  contacts  with  the
Member States in connection with proceedings for failing to notify.

Actions

(cid:1)  The Commission will maintain contacts with the Member State in the event of difficulties

with transposal without suspending the infringement proceedings underway.

(cid:1)  The systematic nature of monitoring transposal in the event of a Member State’s failing to
respond  to  a  letter  of  formal  notice  will  be  reinforced  by  extending  the  empowerment
procedure within the Commission to the reasoned opinion stage. The referral decision will
then be taken six months afterwards.

(cid:1)  The use of electronic communication between the Commission and the Member States will

be extended.

3.5.2. 

Speeding up the process of bringing implementing legislation into line

The Commission may be made aware of national implementing measures that are not in line
with the directive concerned either as a result of investigations by its own departments or via
complaints. The fact that the case law of the Court of Justice has recognised the direct vertical
effect of non-transposed or poorly transposed directives36 helps to overcome this problem in
part. However, it does not relieve the Commission of its monitoring role.

This type of infringement will be given priority by the Commission (c.f. 3.1, priority criteria
based on seriousness). By violating the principles of the primacy and uniform application of
Community  law,  they  deprive  citizens  and  businesses  of  the  individual  benefit  they  are
supposed  to  gain  from  Community  law.  The  risks  inherent  in  non-conformity  of  national
transposal measures will rise with the number of Member States, so the Commission will pay
special attention to preventing and detecting them at an early stage (see paragraph 2.2.3 with
the reference to concordance tables) in the post-enlargement situation.

For  certain  directives,  the  Commission  already  produces  implementation  reports,  at  the
request  of  the  European  Parliament.  This  involves  conducting  a  general  review  of
implementing  measures  and  techniques  in  all  Member  States.  It  thus  provides  a  good
opportunity for identifying incorrect transposal, as well as difficulties with transposal. Where
certain  Community  rules  pose  recurring  problems  when  transposed  into  national  law,  the
Commission  will  examine  the  reasons  for  this  and  will  propose  appropriate  solutions,
including giving consideration to a legislative initiative, if necessary.

36

Where  the  provisions  of  a  directive,  in  terms  of  content,  are  sufficiently  precise  and  unconditional,
individuals may plead them against a Member State where the latter has failed to transpose the directive
in time or has transposed it incorrectly, even if the deadline for bringing proceedings under national law
has  expired  (judgment  of  25  July  1991  in  Case  C-208/90  Emmott  v  Minister  for  Social  Welfare  and
Attorney General [1991] ECR I-4269).

18

                                                
Actions

(cid:1)  The Commission considers that it must give priority to infringements of non-conformity in
acting  as  guardian  of  the  Treaty.  Systematic  and  rapid  action  will  be  taken  against  such
infringements.

(cid:1)  In some sectors, the practice of producing implementation reports will be made systematic.

These reports will be submitted to Parliament.

(cid:1)  In  the  event  of  recurring  difficulties  with  the  application  of  the  same  directive,  the

Commission will consider introducing a legislative initiative to resolve the problem.

4. 

PREVENTING REPETITION OF INFRINGEMENTS

In  its  role  as  “guardian  of  the  Treaty”,  the  Commission  is  also  called  upon  to  take  all
necessary steps to avoid repetition of infringements. Under the Treaty, the Commission may
ask the Court of Justice to require a penalty payment or lump sum of a Member State which
has failed to take the necessary measures to comply with a first judgment that it has failed to
fulfil  its  obligations  (Article  228  EC).37  However,  there  is  no  general  penalty  for  violating
Community  law,  nor  is  it  possible  to  impose  a  penalty  likely  to  prevent  repetition  of  the
infringement under the EC Treaty.

Nevertheless,  infringement  proceedings  themselves  can  limit  the  risk  of  re-offences.
Minimum guarantees that it will not re-offend can be obtained from a Member State where it
has not been possible to put an end to an infringement as it had already been committed when
the Member State decided to come into line with the Commission’s argument (e.g.  a public
contract  has  already  been  awarded,  the  work  has  been  performed,  an  import  licence  not
required  by  Community  law  has  been  demanded  and  received  from  an  importer),  such  as
(a) recognition  by  the  Member  State  concerned  that  an  infringement  has  been  committed;
(b) commitment  from  the Member  State  to pursuing  a  proactive  prevention  and  information
policy  (for  example,  by  giving  the  necessary  “instructions”  to  the  authorities  concerned,
especially decentralised authorities, so that the latter correctly interpret and apply a provision
of the Treaty or of secondary legislation).

The  Commission  also  plans  to  publish  a  compendium  of  certain  types  of  infringement  case
that have been established and closed (without mentioning the Member State concerned) so as
to improve the information available to citizens and businesses about their rights but also that
available  to  national  authorities  (central  and  local)  about  the  correct  application  of
Community law.

At the end of the day, one of the best ways of combating recidivism in cases where the Court
of  Justice  has  already  given  judgment  against  the  offender  is  to  inform  the  public  of  their
rights  to  compensation  under  the  law  as  stated  by  the  Court  of  Justice.38  The  Court  gives

37

38

As regards the rules and method for calculating the penalty, the Commission has shown its preference
for a lump sum (OJ C 63, 28.2.1997, p. 2).
In  Case  C-6/60  Humblet  v  Belgium  [1960]  ECR  559  the  Court  held  that  “if  the  Court  finds  that  a
legislative  or  administrative  measure  adopted  by  the  authorities  of  a  Member  State  is  contrary  to

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individuals the possibilities of applying to the national courts for damages to compensate for
infringements of Community law or failure to transpose directives. The legal profession is by
now familiar with this ruling and its consequences for litigants who suffer loss as a result of a
Member  State’s  failure  to  comply  with  Community  law,  but  individuals  and  firms  are  less
familiar.

Commission  press  releases  announcing  the  termination  of  cases  will  accordingly  restate  the
fact that the termination does not affect the rights of individuals who have sustained loss nor
such actions for compensation as they may have brought in the national courts. It will publish
an interpretative communication on the right to seek damages for loss sustained as a result of
an infringement of Community law by a Member State.

Actions

(cid:1)  The  Commission  will  make  the  closure  of  infringement  proceedings  in  respect  of  an
infringement  that  has  been  corrected  subject  to  adoption  by  the  Member  State  of
commitments and measures to prevent repetition of the infringement.

(cid:1)  It will publish a compendium of certain types of infringement case established and closed.

(cid:1)  Press  releases  published  on  the  termination  of  major  infringement  proceedings  will
mention  the  right  of  injured  citizens  to  bring  proceedings  before  national  courts.  An
informative  communication  on  the  right  to  seek  damages  for  loss  sustained  will  be
published.

5. 

CONCLUSIONS AND FINAL PROVISIONS

The action that the Commission is proposing to undertake to improve  the monitoring of the
application of Community law may appear as modest as any other implementation measure.
But  they  will  be  decisive.  Applying  the  legislation  properly  and  complying  with  it  are
essential to a climate of trust between the Member States, who can be sure that the law will be
fairly enforced and trust by the citizen in the ability of the Union to gain respect.

This will be all the more important in the post-enlargement situation. It must be borne in mind
that  in  future  the  job  will  be  to  check  if  25  different  measures  implementing  the  same
directive are in line. More resources will have to be devoted to this, both in the Union and in
the  Member  States.  For  the  moment  the  Commission’s  plan  with  this  communication  is  to
prompt  a  change  of  enforcement  culture.  Merely  enforcing  the  law  against  infringements  is
not  enough;  there  is  a  need  for  prevention  also.  But  cooperation  will  not  release  the
Commission as guardian of the Treaties from its  duty  to remind the  Member States of their
commitments and to seek the best instruments at all times.

Community law, that state is obliged ... to rescind the measure in question and to make reparation for
any  unlawful  consequences  thereof”.  In  Joined  Cases  C-6/90  and  C-9/90  Francovitch  et  al  v  Italy
[1991] ECR I-5357 the Court of Justice reasserted in particular the possibility for an individual to seek
reparation of damage sustained as a result of an infringement of  Community law by a Member State.
The  Cases  here  concerned  Italy’s  failure  to  transpose  Directive  80/897/EEC  on  the  protection  of
workers in the event of the employer’s insolvency. It upheld and refined this ruling in Joined Cases C-
46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary
of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-1029.

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But  it  is  not  only  the  European  and  national  institutions  that  are  concerned  by  all  this.
Ultimately  this  communication  in  many  respects  concerns  the  citizens  themselves.  Through
information,  participation  and  access  to  justice,  they  are  to  be  the  actors  of  a  Community
based  on  the  rule  of  law.  And  in  the  sprit  of  the  Governance  White  Paper,  all  the  actions
called for here can be undertaken without any need to amend the current Treaties. They do not
preclude other improvements to the application of Community law, such as the Commission’s
recent  proposal  to  the  European  Convention  for  changes  to  the  infringement  procedure
whereby a Member State not wishing to act on a reasoned opinion could take the matter to the
Court of Justice itself.

The Commission will give an account of the implementation of the measures set  out  in  this
Communication in its annual report to the European Parliament on monitoring the application
of  Community  law.  This  report  is  published  in  the  Official  Journal  and  on  the  European
Communities’ “Europa” server at the following address:

http://europa.eu.int/comm/secretariat_general/sgb/infringements/19report_2001_en.htm

The report is also available on request from the Commission’s departments, and in Info Points
Europe and Euro Info Centres.

This  Communication  is  addressed  to  the  European  Parliament,  the  Council,  the  Member
States  and  the  European  Ombudsman  .  It  will  be  published  in  the  C  series  of  the  Official
Journal, and on the European Communities’ “Europa” server at the above address.

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