Gáspár-Szilágyi on what constitutes a “failure to notify” the Commission when implementing directives

The treaties of the European Union grant the Commission the ability to ensure that EU law is consistently applied within the national legal systems of the Member States. Article 258 of the Treaty on the Functioning of the European Union (TFEU) provides that the Commission can initiate infringement proceedings towards a faulting Member State. Such proceedings may also involve the Court of Justice, providing the state in question fails to respect the opinion issued by the Commission. After the entering into force of the Lisbon Treaty, there have been changes in the provisions governing the Commission’s guardian role, specifically to article 260 TFEU, which is an exact replica of art. III-362 of the Constitutional Treaty, and according to the travaux préparatoires the aim of the change was to make the sanctioning system more effective. That provision provides that the Commission can request the European Court of Justice (ECJ) to issue monetary sanctions if a state “has failed to fulfil its obligation to notify measures transposing a directive”. Before the amendments to the treaties, the Commission had to commence a separate proceeding before the ECJ for sanctions to be levied (see art. 228(2) of the Treaty Establishing the European Community), the amendment therefore seeks to enhance efficiency in a procedure that is already overly tedious.

In his article What Constitutes ‘Failure to Notify’ National Measures? (published in March 2013 in European Public Law Journal, vol. 19, issue 2), Szilárd Gáspár-Szilágyi (PhD candidate at Aarhus University, Denmark) discusses the changes brought by the Lisbon Treaty to art. 260(3). He argues that the phrase “failed to fulfil its obligation to notify measures transposing a directive” is insufficiently clear as the term failure to notify has not been defined in the treaties or in the ECJ’s case-law. In practice there is a distinction between two types of infringement procedures. The first being non-communication proceedings in which the Commission brings a claim because there has been a lack of transposition measures, i.e. when Member States have not implemented a directive. The second is non-conformity proceedings, in which the Commission brings a claim due to incorrect transposition, i.e. the Member State in question has implemented the directive in an incorrect way. The possibility for the Commission to request monetary sanctions under art. 260(3) is limited to the former of these two procedures, i.e. non-communication proceedings. Although as Gáspár-Szilágyi mentions, the distinction between non-communication and non-conformity proceedings is not clear, as the term failure to notify has not been properly defined.

Gáspár-Szilágyi reaches a somewhat unsatisfying conclusion. He argues that due to the novelty of article 260(3) TFEU and the lack of proper case-law, “[the provision] as it stands now does not have its place in the TFEU. It lacks any definition and it is prone to have adverse effects on judicial certainty; it further blurs the way Commission discretion is exercised, which is already the subject of heavy criticism” (see p. 293-4). In order to reach this conclusion, Gáspár-Szilágyi examines the preparatory works preceding article 260(3), the Commission’s practice and the sparse case-law on the subject.

Albeit there is no shortage of discussion in Gáspár-Szilágyi’s findings, one can say that the preparatory works in general evidence that the primary aim of article 260(3) TFEU was to only encompass situations were Member States did not communicate any transposition measures whatsoever to the Commission. However that aim has not been realized by the Commission, which stated in a communication issued for the interpretation of article 260(3) TFEU that “[a] failure covered by Article 260(3) TFEU concerns both the total failure to notify any measures to transpose a directive and cases in which there is only partial notification of transposition measures.” Hence in the view of the Commission article 260(3) also covers situations when Member States decide to implement some provisions of the directive in question, but not all of them. The Commission also denotes quite clearly that when the sufficiency of the implementation is in question then proceedings will be initiated in accordance with the normal procedure, namely article 258 TFEU. Hence, the Commission makes a distinction between situations of insufficiency and only partial transposition, where partial transposition is regarded as non-communication proceedings falling under art. 260(3).

However, to draw the line between non-communication and non-conformity proceedings, as Gáspár-Szilágyi notes, is dependent on the gross discretionary power of the Commission official handling the case, because that official will have the authority to decide whether or not non-communication proceedings will be launched and consequently whether or not monetary sanctions will be at stake. This discretionary power is exercised through a so-called prima facie check, in which the official handling a case will briefly check the conformity of a Member States implementation of a certain directive. It includes an examination of the geographical and material scope of a directive’s implementation. That the Commission’s practice leaves a discretionary power in the hands of the official is from Gáspár-Szilágyi’s point of view problematic since there is no proper guidance for such a prima facie check. He considers such a prima facie check to be dubious and not helpful in the determination of the notion of failure to notify. The conformity-analysis is subject to a double role, checking national measure’s conformity to the wording of the directive(s) and granting the Commission the possibility to launch non-communication proceedings when missing measures are discovered. The Commission’s practice does therefore not give any proper guidance to the delineation between non-communication and non-conformity proceedings.

As to the case-law of the ECJ, it likewise has not proposed a proper definition of what constitutes a failure to notify measures transposing a directive for the primary reason that there is a severe paucity. Gáspár-Szilágyi refers in the article to the case of Commission v. Poland (C-48/12), which at the time was an ongoing case, but to date it is closed without a judgment ever being delivered. As Gáspár-Szilágyi notes, and as was made clear by the Commission in its communication on article 260(3) the procedure under that provision did not commence until after 15 January 2011. Hence, Case-law at this point does therefore still not shed any more light on the question.

Analysis

Gáspár-Szilágyi’s article shines a light on the important question of the interpretation of article 260(3) TFEU and he makes his standpoint in regard to that provision quite clear. However, the article itself seems to be overly analytical considering that the ECJ has not yet laid forth a definition on what constitutes a failure to notify.  He seems to be less rigorous with the sources, especially since some of the references and comments to cases in the article are inaccurate. The author’s analysis of the situation is however very clear and he fulfills the objective to problematize the subject even though some parts can be regarded as very speculative.

One of Gáspár-Szilágyi’s solutions to solve the existing deficiency in the prima facie check is to create a “speedier and more resource efficient check with a double role” (see p. 288) to ensure the continuity and uniformity of the procedure. The author refers to uniformity in terms of having the same official handling the same file, and he argues that this would circumvent the hypothetical situation that one official regards the matter to be of non-conformity and another official in a later stage of the proceeding regards the matter to be a failure to notify. However, Gáspár-Szilágyi’s solution would not improve the delimitation of the notion failure to notify and the author does not analyze this part of the problem. The proposal of a speedier check is not a solution to the issue but more of a way to circumvent the problem of the vague definition of failure to notify. However one could agree with the author that a one-step procedure with a double role would create some certainty as to the grounds of launching non-communication or non-conformity proceedings in the specific situation. Though not analyzed in the article, such a procedure would be positive from a Member State point of view in terms of legal certainty. As a second solution the author suggests that the Commission should be empowered to propose sanctions such as those under article 260(3) regardless of the procedure applied (i.e. non-conformity or non-communication). However, he does not analyze the grounds for the current separation of the two procedures and hence his suggestion seems too far-fetched.

The main issue for Gáspár-Szilágyi is that the vague definition of failure to notify grants the Commission a wide-ranging discretion under article 260(3). However as Advocate General Kokott stated in her opinion to the Commission v. Luxembourg Case (C-526/08):

Article 260(3) TFEU (…) underlines the importance of the Commission’s discretion in connection with the enforcement of Community law through Treaty-infringement proceedings (…) It is thus for the Commission alone to decide whether it will exert even greater pressure on the Member States in that phase in order to accelerate the implementation of Community law. However, it is clearly not obliged to do so (para. 72).

It thus seems like the Commission’s discretion can also be seen as a prerogative which has been granted to it by virtue of the construction of the sanction mechanism. One can therefore ask if the discretion given to the Commission might itself promote the effectiveness which was the primary purpose for the inclusion of article 260(3) TFEU.

Gáspár-Szilágyi’s final conclusion, that article 260(3) TFEU does not have its place in the TFEU, can also be criticized. The main reason for introducing the possibility for the Commission to request monetary sanctions so early in the infringement proceedings, as the author mentions, was to enhance the efficiency of such proceedings by forcing greater incentives on Member States to implement their directive obligations. As stated above, the procedure which existed prior to article 260(3) required the Commission to initiate a second proceeding before the ECJ in order for sanctions to be levied. This was a quite cumbersome process due to the fact that it could take several years before a faulting Member State was properly sanctioned. A good example to this effect was Greece’s failure to implement its obligations arising under two directives concerning toxic and dangerous waste. The ECJ found Greece accountable for not transposing the directives in 1992 (see C-45/91), but did not impose sanctions on it until 2000 (see C-387/97), which was only after the Commission had initiated proceedings for Greece’s failure to comply with the first ECJ ruling. Moreover, as shown by Harlow and Rawlings, Greece’s failure still remained after the rulings and it was later discovered in 2005 that the Member State’s new site for waste dumping was still unsatisfactory. One can therefore clearly deduce that the newly introduced ability of the Commission in article 260(3) TFEU serves an important function which Gáspár-Szilágyi fails to highlight in the article, namely to quite substantially increase efficiency and provide harsher incentives for Member States to fulfill their obligations under the treaty before incurring too large debts resulting from monetary sanctions. This has also been the conclusion of other scholars, such as Wennerås. Although as Wennerås also points out, due to the novelty of article 260(3), it still remains to be seen how effective the provision will be. With this in mind Gáspár’s critique becomes a bit too unwarranted since case-law is still under development and there will probably be a more satisfactory notion of what constitutes a failure to notify when the ECJ by case-law defines the term.

by Sofia Falkner Persson and Aljosa Noga

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About eulaworebro

Örebro Universitet (Sweden)
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