3. The European Commission’s Infringement Mechanism

The European Commission is the guardian of its Treaties. As such, it has a responsibility to ensure proper implementation and enforcement of EU law, i.e. the acquis communautaire. The Commission identifies possible infringements of EU law on the basis of its own investigations or following complaints from citizens, businesses or other stakeholders. It may refer to any measure (law, regulation or administrative action) or the absence of a measure or practice by a country of the European Union that is against Union law. The European Commission can only take up the complaint if it is about a breach of Union law by authorities in an EU country (not by a private individual or body).

A complaint must be submitted via the standard complaint form 42 . The complaint may be submitted in any official EU language and should include the following details:

description of how national authorities have infringed Union law, and which is the Union law infringed;
details of any steps already taken to obtain redress.

Complaints to the European Commission go through the following process 43 :

The European Commission will confirm that it has received your complaint within 15 working days.
Within the following 12 months, the European Commission will assess your complaint and aim to decide whether to initiate a formal infringement procedure against the country in question.
If the issue raised is particularly complicated, or if the European Commission needs to ask for more information or details, it may take longer than 12 months to reach a decision.
If the European Commission decides that the complaint is well-founded and initiates a formal infringement procedure against the country in question, it will inform the complainant about case progresses.
Should the Commission contact the authorities of the country against which the complaint is made, it will not disclose the identity of the complainant unless permission is given.
At any time, the complainant may give the European Commission additional material about the complaint or ask to meet representatives of the European Commission.

A formal infringement procedure follows a number of steps, each ending with a formal decision 44 :

The Commission sends a letter of formal notice requesting further information to the country concerned. The latter must send a detailed reply within a specified period, usually two months.
If the Commission concludes that the country is failing to fulfil its obligations under EU law, it may send a reasoned opinion: a formal request to comply with EU law. It explains why the Commission considers that the country is breaching EU law and requests, that the country informs the Commission of the measures taken within a specified period, usually two months.
If the country still does not comply, the Commission may decide to refer the matter to the Court of Justice. Most cases are settled before being referred to the Court.
If the Court finds that a country has breached EU law, the national authorities must take action to comply with the Court’s judgment.
If, despite the Court’s judgment, the country still does not rectify the situation, the Commission may refer the country back to the Court.
When referring an EU country to the Court for the second time, the Commission proposes that the Court imposes financial penalties, which can be either a lump sum and/or a daily payment.

CASE LAW EXAMPLE

Case C-441/17 European Commission v Republic of Poland 45

The following Case law example presents a ruling of the Court of Justice indicating that the Republic of Poland did not comply with the Habitats Directive when it started the logging of trees in a Natura 2000 site.

In July 2017 the European Commission referred Poland to the Court of Justice and requested interim measures to stop increased logging operations in the Białowieża Forest – one of Europe’s last remaining primeval forest, which is a protected Natura 2000 site. The removal of century old trees posed a major threat to the integrity of this Natura 2000 site. The site protects species and habitats that are dependent on old-growth forests, including the availability of dead wood. For some of these species, the Białowieża Forest is the most important or the last remaining site in Poland.

As logging operations have started on a significant scale, the Commission also requested the Court for interim measures compelling Poland to suspend the works immediately. According to EU law, the Court of Justice can prescribe interim measures to require a Member State to hold back from activities causing serious and irreparable damage before a judgement is given.

In the case C-441/17 European Commission v Republic of Poland the Court of Justice, first issued the emergency ban on logging in Bialowieza Forest, saying it will impose fines of at least €100,000 a day if Poland’s Environment Minister keeps ignoring the Court’s decisions, and later ruled that the Republic of Poland has failed to fulfil its obligations under the Habitats and Birds Directives.

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The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

the number of individuals, their density or the area covered;

the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);

the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations);

the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage:

negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;

negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;

damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Toolkit

3. The European Commission’s Infringement Mechanism

CASE LAW EXAMPLE

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Toolkit

3. The European Commission’s Infringement Mechanism

CASE LAW EXAMPLE

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