The Commission’s fresh approach to infringement cases

© Carlo Schrodt / pixelio.de

The fresh approach to infringement was the Commission’s response to a series of failures in previous cases against member states. Sweden, Slovenia, Portugal and Italy were referred to the Court of Justice of the European Union (CJEU) and found to be in non-compliance with the Directive. However, these rulings failed to have any practical effect because the court simply declared that the member states had breached PM10 limit values in certain years in the past. The Court declined to rule on whether the member states where in continuing breach of the PM10 limits. These judgments were therefore practically useless as they did not require the member states to take any action to comply. The Commission therefore abandoned similar cases against member states on two grounds:

  • Breach of the primary duty to ensure compliance with limit values by the relevant deadline (article 13)
  • Breach of the consequent duty to prepare an air quality plan containing measures to ensure that the period of breach of the limit values is kept “as short as possible” (article 23)

The Commission infringement procedure comprises several informal and formal steps:

  1. Letter of formal notice – a first written warning, setting out the grounds on which the commission thinks the member state is failing to comply with EU law and requiring a formal response (usually within two month)
  2. Reasoned opinion – a final written warning, typically giving the member state two months to take steps to rectify the breach
  3. Referral to the CJEU (under article 258)
  4. First CJEU judgment – if the Court agrees with the commission it will make a declaration that the member state has failed to comply with the EU law. The member state must then take the necessary measures to comply with the court’s judgment.
  5. Second referral to the CJEU – if the commission thinks that the member state has failed to take the necessary measures to comply with the first court judgment, it must then initiate a second round of infringement action and make a second referral to the CJEU with a recommendation for a fine (under article 260)
  6. Second CJEU judgment – if the CJEU rules that the member state has failed to comply with its first judgment, it can issue either or both a daily and lump sum fine.

It is impossible to predict with any real accuracy how large the penalties will be. Penalty payments are based on three criteria: N factor depending on the member state's size (based on GDP and votes in Council), the seriousness of the infringement and the duration.

In November 2014 the EU Commission delivered a reasoned opinion to Germany. The reason is the ongoing breach of PM10 limit values in Stuttgart and Leipzig. The Government has failed to take necessary measures that should have been in place since 2005 to protect citizens’ health. This second step in the infringement procedure follows an additional letter of formal notice sent to Germany on 26 April 2013. If the Member State fail to act, the Commission may take the matter to the EU Court of Justice.

In February 2017 the European Commission issued a final warning to Germany on the grounds that the limits for nitrogen dioxide (NO2) are still being exceeded. The commission therefore calls on the federal government to take measures to ensure air pollution. The reasoned opinion concerns 28 air quality areas, including Berlin, Munich, Hamburg and Cologne. The Commission has launched legal action against several Member States since 2008 because of poor air quality (Belgium, Denmark, Germany, France, Italy, Austria, Poland, Portugal, the Netherlands, Spain, the Czech Republic, Hungary and the United Kingdom). If the member states fail to react, the commission may bring an action before the CJEU.

The table below shows the countries against which the EU Commission has already initiated reminders or infraction proceedings.

Current statistics on infringements