Infringement cases before the Court

If the defaulting State takes no steps to correct the error, the Commission may at any time after the deadline for a reply to the reasoned opinion bring infringement proceedings before the Court of Justice. The existence of an infringement will be judged against the background of the situation prevailing in the Member State at the time of the expiry of the deadline.^{[1] [2] [3]} Only in a small percentage of cases where the Commission initiates a case concerning a suspected infringement will this lead to infringement proceedings before the Court.3⁸ In many cases, the dispute can be resolved through discussions between the Commission and the Member State. It is also common that cases that reach the Court are terminated without judgment because the dispute is settled during the process. A case may go all the way to judgment because, inter alia, the Commission and the Member State interpret the legal situation differently and thus disagree on whether an infringement actually exists, or because the Member State’s government, for political or constitutional reasons, finds it difficult to change some national legislation or practice.

It is incumbent upon the Commission to prove the alleged breach and provide the Court with the information it needs to determine whether there has in fact been an infringement.3⁹ If the Commission does manage to present a prima facie case, for example by providing ‘sufficient evidence’ that certain alleged circumstances actually occurred, the burden of proof will be transferred to the Member State.^{[4] [5]} According to Article 279 TFEU, the Court may prescribe any necessary interim measures while the case is being heard.

Even if the Court finds that there is an infringement, it cannot annul any national legislation that has given rise to the action, or decide what measures are necessary to correct the error. It is up to the Member State to determine how it will comply with the Court decision and align its legislation with EU rules.4¹ However, if the court finds that a Member State has failed to fulfil its obligations under the Treaties, that Member State shall, under Article 260 TFEU, take the necessary measures to comply with the judgment. This also follows from the general requirement of sincere cooperation in Article 4(3) TEU.

• [1] See, eg, Case C-494/01 Commission v Ireland (n 2), para 29.
• [2] Report from the Commission—2014 Annual Report on Monitoring the Application of EU Law(9 July 2015) COM (2015) 329 final, 15-16.
• [3] Case C-494/01 Commission v Ireland (n 2), para 41.
• [4] Case C-33 5/07 Commission v Finland ECLI:EU:C:2009:612, para 47; Wenneras The Enforcementof EC Environmental Law (n 26) 258.
• [5] Wenneras The Enforcement of EC Environmental Law (n 26) 259.