INFRACTIONS OF EU LEGISLATION
Infraction proceedings are taken by the European Commission against Member States for failure to comply with an obligation under the Treaty. This arises most commonly from improper or non-implementation of a Directive or inadequate enforcement within the community. Infraction proceedings are taken under Article 226, 227 and 228 of the European Communities Treaty.
Stages of Infraction Proceedings
Infraction proceedings go through a number of stages, which are as follows:
- Pre-226 letter: an informal letter of inquiry. The Commission is not required to start proceedings with a Pre-226 letter but may do so, particularly in response to a complaint from a member of the public or a NGO, or where the case looks odd.
- Article 226 letter: this is the first formal stage of the process. The letter puts the Member State on notice that the Commission considers it may be in breach of Community law. The Member State is normally given two months to reply.
- Article 226 Reasoned Opinion: this is a formal determination by the Commission that the Member State is in breach of its Treaty obligations. The opinion requires the Member State to comply with its EC obligations (and not merely to reply to the reasoned opinion letter) within a given time limit, normally two months.
- European Court of Justice (ECJ) referral under Article 226: if the Member State fails to comply with a reasoned opinion within the prescribed period, the Commission can apply to the ECJ for a ruling that the Member State is in breach of the Treaty.
- Article 228 letter: this is the first formal stage of the 228 process. The letter puts the Member State on formal notice that it has failed to comply with an ECJ judgment.
- Article 228 Reasoned Opinion: this is a formal determination by the Commission that the Member State has failed to comply with the ECJ judgment. The Member State is required to take the necessary measures to comply with the ECJ judgment within a time limit.
- ECJ referral under article 228: in these Court proceedings the Commission can recommend to the ECJ that it should impose a lump sum or penalty payment on the Member State.
Consequences of Infraction Proceedings
The failure to properly transpose and enforce an EU obligation can eventually lead to a fine. The maximum fine that could be imposed on the UK is some €534,000 (£350,000) per day, approximately £127 million per year. Scotland would be required to pay a percentage of any UK fine if the infraction related to a devolved matter. It should be noted that fines are extremely rare and there is a comprehensive resolutions process in place to avoid the likelihood of such an outcome.