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Legal Remedies – State Responsibility Revisited

A new course on Legal Remedies in Europe begins today at the Faculty of Law of the University of Tartu, and during the recent days I have worked with the recent changes to the area. Leaving the case law developments aside, one area most affected by the changes is state responsibility for breach of EU law under Articles 258-260 TFEU (distinct from the cases where a breach of EU law causes damages to individuals). Setting state responsibility for breach of EU law before internal courts aside, Articles 258-260 distinguish between three different actions – the European Commission’s action for declaration of an infringement; the Member State’s action for declaration of an infringement; and the European Commission’s action for compliance with the judgment of the CJEU. When prior to the Lisbon Treaty the European Commission could indicate the lump sum and penalty payment only when it submitted the action for compliance with the judgment of the CJEU, the Lisbon Treaty allows in Article 260 (3) the Commission to specify the amount of the lump sum or penalty payment to be paid by the Member State concerned already when it submits an action to the CJEU pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure. This means that the Lisbon Treaty distinguishes between failure of transposition of directives, and failure to notify measures transposing a directive; distinguishing directives adopted under a legislative procedure from other directives. The Lisbon Treaty also distinguishes between the consequences of general action for compliance with the judgment of the CJEU – if the CJEU finds general non-compliance it may impose a lump sum or penalty payment on the Member State concerned (it is not expressly stated here that the CJEU may not exceed the amount specified by the Commission), but if the CJEU finds failure of the obligation to notify measures transposing a directive adopted under a legislative procedure it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. Amendments have been made to the Communication of the Commission: „Application of Article 228 of the EC Treaty“ (SEC(2005) 1658), by the Communication of the Commission: „Application of Article 260 of the Treaty on the Functioning of the European Union, up-dating of data used to calculate lump sum and penalty payments, to be proposed by the Commission to the Court of Justice in infringement proceedings“ (SEC(2010) 923); and the Communication of the Commission concerning implementation of Article 260(3) of the TFEU (SEC (2010) 1371). One amendment in SEC(2010) 923 is that the standard flat-rate amount for calculating the penalty payment is fixed at € 640 per day instead of € 600 per day. Another amendment concerns the standard flat rate for the lump sum payment that is fixed at € 210 per day instead of € 200. The Lisbon Treaty changed the procedure in the Commission for compliance with the judgment of the CJEU more effective – no formal notice is required before the Commission may give reasoned opinion to a Member State. State responsibility for infringement of EU law is distinguished from liability of the States for the damage caused by them by infringing EU law, the latter disputes belong under the exclusive jurisdiction of the Member States’ courts.



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