The Year of the Infringement

Happy 2019! I wish all the readers of this blog a very successful and eventful new year.

And to start 2019, nothing better than a post on naughty States and the stellar role recently played by infringement actions before the Court. Who would have thought that the infringement procedure would be close to outmaneuver the preliminary reference procedure and overtake its position as the “jewel of the crown” among the remedies of the Court? But that is what we have started to witness in the past months, and will probably consolidate throughout 2019. Thus, 2019 could very well be… the year of the infringement.

This is not a completely new story. 2017 and 2018 provided extraordinary examples of how the infringement procedure could be used, particularly in the Polish forest case and, more recently, in the case of the Polish forcefully retired judges. Those cases proved that the interaction between the interim measures procedure and the infringement procedure can be crucial in order to ensure the effectiveness of EU law. The Grand Chamber ruled twice on these matters, the first time to confirm that the sanctions mechanism of Article 260 TFEU can be used in the context of interim measures (quite a ruling!), and the second to remind that interim measure inaudita parteagainst Member States can be retroactive (quite another ruling!).

But 2019 will provide us with further developments in the field of infringements, and some of them are of a huge significance, both in procedural and substantive terms.

First, the Polish proceedings concerning the independence of the judiciary will prove how far the Court of Justice is willing to go in the interpretation of a very broad and generic provision, as is Article 19 TEU, which generically ensures the independence of the judiciary. Is this provision enough to justify the launch of an infringement procedure against the reform of a national judiciary? If the Court of Justice sides with the Commission, what would happen next? Should Member States consult with the Commission any further amendments to their judiciary? Wouldn’t the EU be stepping into a closely guarded domain of national sovereignty, its domestic judiciary? It looks like the Court will probably side with the Commission, but the seismic consequences of that conclusion could be felt for many years.

Shortly after, the Court will be ruling on Commission/Hungary (C-235/17), a case that has nothing to do with the rule of law crisis in that country, but with a point that could be applied to any infringement action against any Member State: can the Commission bring an infringement action on an independent ground of review based solely on the Charter of Fundamental Rights? The case raises key issues of principle, not only about the scope of application of the Charter, but also on the Commission’s policy on infringements, which could leave the institution in a position closer to the one of an Ombudsman in the promotion and defense of fundamental rights. So far, in a thoroughly reasoned Opinion, AG Øe claims that the Commission cannot bring an action on such grounds, but the counterarguments are powerful too. Some fundamental rights are self-executing, even in horizontal situation, as the Court has stated recently in some high-profiled cases (Egenberger, Bauer…). Also, the Court’s decisions in preliminary judgments confirm that the Charter can act as a sole ground of infringement in areas only indirectly covered by EU law (think about consumer protection and the vast number of breaches of the right to an effective protection in civil judicial proceedings ruled by the Court). It would be strange if the Commission is subject to a stricter standard of proof of the link between the Charter and the implementation of EU law, simply because the case is brought through an infringement action. We shall see, but the case will condition the role of the Charter as a significant or insignificant legal instrument in the Commission’s infringement policy.

We will also hear about the unknown (to date) Article 14.2 of the Statute of the European System of Central Banks, which grants the Governing Council of the ECB the right to bring an action against a Member State having unlawfully removed a governor of a national central bank. The typical provision that was drafted with the hope that it would never be applied, finally ended up being put to the test in the case of ECB/Latvia (C-238/18), together with Rimšēvičs/Latvia (C-202/18). But is Article 14.2 an infringement procedure or an action of annulment? Or none of the above? AG Kokott has rendered a powerful Opinion arguing that the remedy looks like an infringement, moves like an infringement and talks like an infringement. But the Court will have the final say, again in Grand Chamber, in a case that will open the door to a new generation of sui generisinfringements brought by Institutions other than the Commission.

And yesterday we found AG Szpunar’s excellent Opinion in the saga of Germany’s reluctance to follow the Council’s voting instructions in the Intergovernmental Organisation for International Carriage by Rail. In yesterday’s Commission/Germany (C-620/16), an interesting procedural argument was raised by the defendant: Germany departed from the Council’s voting instructions and breached the Council Decision with which Germany disagreed. Germany took the Council to Court and challenged the Decision. Germany lost. However, in the meantime, the Commission launched infringement proceedings against Germany almost immediately after the recalcitrant vote. But the letter of formal notice and the reasoned opinion were issued once the rebellious vote had been cast, so there was nothing much to do by then. Thus, Germany argued that the Commission lacked any interest to bring the action, to which the AG has counterargued by claiming that the Commission was right to bring the action, or otherwise Member States would profit from their breaches of EU law by issuing acts of immediate effect. The AG argues, with the support of the case-law, that some breaches produce effects only in short segments of time, but that does not preclude the Commission from bringing an infringement action after the effects have faded, as long as the Commission brings the action immediately after the act takes place. This is the key: the Commission’s ability to react quickly, which it did in this case. But if the Commission had decided to await the Court’s decision in the action of annulment against the Council Decision, which could have a been a reasonable stance too, the AG’s proposal would ensue in the inadmissibility of the infringement action. We shall see what the Court finally says, but the issue is conceptually and procedurally complex, and crucial for the Commission’s infringement policy.

The infringement procedure became a rather unexciting area of practice for quite some time, mostly because the Commission did not have reasons to use it in novel ways. But the current times have put the Commission in a new role, struggling as it is now with phenomenal challenges unimagined year ago. The infringement procedure is proving to be a powerful ally in the Commission’s efforts to overcome such challenges, and so far the Court has been willing to play ball. But for how long? In 2019 we will find out.

In the meantime, happy new year to y’all.

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