European Commission v Republic of Malta.
Date: 2016-03-03
24


According to the settled case-law of the Court it is for the Commission, when it considers that a Member State has failed to fulfil its obligations, to assess whether it is appropriate to act against that State, to determine which provisions the State has infringed, and to choose when it will initiate infringement proceedings against it; the considerations which determine that choice cannot affect the admissibility of its action (judgment in Commission v Poland, C‑311/09, EU:C:2010:257, paragraph 19 and the case-law cited).
25


Given this discretion, the lack of infringement proceedings against one Member State is irrelevant in the assessment of the admissibility of infringement proceedings brought against another Member State. The admissibility of the present action cannot therefore be called in question because the Commission has not initiated infringement proceedings against the United Kingdom.
26


As regards the plea in law based on an alleged misuse of powers, suffice it to state that, in accordance with the Court’s settled case-law, the Commission does not have to show a legal interest in bringing proceedings or to state the reasons why it is bringing an action for failure to fulfil obligations. In the present case, since the subject-matter of the action as it is to be found in the application corresponds to the subject-matter of the dispute as stated in the letter of formal notice and in the reasoned opinion, it cannot validly be claimed that the Commission misused its powers (see, to that effect, judgment in Commission v Spain, C‑562/07, EU:C:2009:614, paragraph 25 and the case-law cited).
37


It follows from the principle of sincere cooperation, laid down in Article 4(3) TEU, that every Member State, for the purposes of the declarations covered by Article 5 of Regulation No 1408/71 and Article 9(1) of Regulation No 883/2004, must carry out a proper assessment of its own social security regimes and, if necessary, following that assessment, declare them as falling within the scope of those regulations (see, by analogy, judgment in FTS, C‑202/97, EU:C:2000:75, paragraph 51, and Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 22). It also follows from this principle that the other Member States are entitled to expect that the Member State concerned had fulfilled those obligations.
39


In addition, as long as the declarations made by a Member State are not amended or withdrawn, the other Member States must take them into account. It is incumbent upon the Member State which made the declaration to reconsider its merits and, if necessary, to amend it if another Member State expresses doubts as to the correctness of those declarations (see, to that effect, judgment in Banks and Others, C‑178/97, EU:C:2000:169, paragraph 43).
41


In the first place, if the declaration raises questions and if the Member States cannot reach agreement, in particular regarding the classification of laws or schemes within the scope of Regulations Nos 1408/71 and 883/2004, they may turn to the Administrative Commission, mentioned in Articles 80 and 81 of Regulation No 1408/71 and in Articles 71 and 72 of Regulation No 883/2004. In the second place, if that commission does not succeed in reconciling the points of view of the Member States on the question of the legislation applicable in the case in point, it is, where appropriate, for the Member State doubting the correctness of a declaration by another Member State to tell the Commission or, as a last resort, bring proceedings under Article 259 TFEU in order for the Court to examine, in the context of those proceedings, the question of the applicable legislation (see, to that effect, judgment in Banks and Others, EU:C:2000:169, paragraph 44).
42


Regard being had to the arguments set out by the Commission, it must be added that the finding that a Member State must take into account the declaration made by another Member State is not contrary to the case-law of the Court (see, in particular, judgments in Beerens, 35/77, EU:C:1977:194, paragraph 9, and Hliddal and Bornand, C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 46), according to which the fact that a Member State has included a national law or a national regulation in its declaration under Article 5 of Regulation No 1408/71 or Article 9 of Regulation No 883/2004 must be accepted as proof that the benefits granted on the basis of that law are social security benefits within the meaning of those regulations, whereas the fact that a national law or a national regulation has not been the object of such a declaration is not, of itself, proof that that law or that regulation does not come within the scope of those regulations.