Infringement Procedure Research Articles

The Possibility and Desirability of Rule of Law Conditionality

The paper claims that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with backsliding Member States the EU institutions using both the traditional mechanism (infringement procedures and Article 7), and the newly established Rule of Law Framework have proven incapable of enforcing compliance, which considerably undermined not only the legitimacy of the Commission, but also that of the entire rule of law oversight. Hence, new means of value conditionality should also be activated, such as cutting funds for member states that do not comply with certain basic institutional requirements of the rule of law. As the paper argues, this is possible through implementing the Common Provision Regulation, and can be carried out on a case-by-case basis. Putting conditionality into the Multiannual Financial Framework after the 2020 budget period is another potential avenue to enforce compliance with joint values.

Optimal enforcement of competition policy: the commitments procedure under uncertainty

The introduction of a commitments procedure in EU antitrust policy (Article 9 of Council Regulation 1/2003) has entitled the the European Commission to extensively settle cases of alleged anticompetitive conduct. In this paper, we use a formal model of law enforcement to identify the optimal procedure to remedy cases in a context of partial legal uncertainty (Katsoulacos and Ulph in Eur J Law Econ 41(2):255–282, 2016). We discuss in particular the merits of a policy of selective commitments where firms either take strong commitments or are investigated under the standard infringement procedure.

The Cost Sharing Exemption Under Debate - Part I

It can be concluded from the working papers that the following points are a point of attention: - The requirements (conditions) for applying the cost-sharing exemption; - Application of the exemption in cross-border scenarios, and - Interaction of this particular exemption with the VAT grouping provision of the VAT Directive. This article aims to discuss in two parts all of these issues and provide some thoughts as to the current interpretation and application of the exemption, as well as to point out questions that remain to be answered. This is all done as well in light of the cases DNB Banka and Aviva that are currently pending before the Court of Justice of the European Union (hereinafter: the CJEU) and two infringement procedures against Germany and Luxembourg. In accordance with the above, the first part of the article will list the requirements that need to be satisfied in order for the exemption to apply (section 2). Then a deep dive into interpretation and application of these requirements in practice will be taken (section 3). We will end the article in section 4 with some concluding remarks. In part II of our article we will look at the issues with respect to the application of the exemption in cross-border scenarios that include both EU and non-EU situations and how the exemption interacts with the concept of VAT grouping as set out in Article 11 of the VAT Directive.

Načela krivičnog i prekršajnog postupka za postupanje policije Republike Srpske

In the Republic of Srpska, Police is the body practising state authority, entrusted with the monopol of administrative enforcement aiming at protecting the State, its citizens and its legal order from threat of force. So as to enable unobstacled performance of the tasks and duties delegated to the Police, the legislative authorities have defined this force as an unavoidable factor in all criminal and infringement procedures. This is what really makes Police the State body no criminal and infringement procedure can possibly be imagined without. When analysing the role of Police in criminal and infringement procedures, conclusion can be made that it is exactly Police who is in charge of collecting evidence necessary to initiate, successfully conduct and finalise all criminal and infringement procedures. Aiming at meeting its obligations concerning such procedures, and in the course of own practical actions, Police is en­titled to restrict and limit human rights and freedoms in many different instances. Such restrictions are justified if brought about observing the Law i.e. if and when aiming to collect evidence necessary for the main court hearings, in cases and in manners envisaged by Law. In order to conduct all actions in harmony with the domestic and international legal regulations concerning human rights and freedoms protection, Police must necessarily carry out all activities observing the general principles of criminal and infringement procedures deriving from international legal documents, as well as from the general principles governing implementation of the Police authorizations.

PV infringement procedure vs Roche now closed by EC

PV infringement procedure vs Roche now closed by EC

Ability of EU Legislation to Deter: the Volkswagen Case

After the discovery of the fraud committed by Volkswagen to circumvent emission control tests, it became clear that the current EU legal framework on type approval and emission standards for cars shows structural weaknesses. The Member States are primarily responsible for implementing and enforcing the legislation, but often fail to do this. Consequently, the Commission has started infringement procedures against several Member States. Nevertheless, there is no doubt that the current legal framework has to be updated. In a first part, the current legislation is examined. However, not only the EU legislation on type approval and emission standards is considered, but as well other legislation that can have a deterrent effect for the carmaker. Besides, public law actions and private law claims can also incentivize the car manufacturer to honour the emission standards, and complement the type approval legislation. Still, strengthening the current environmental legislation is necessary to overcome the present problems, such as the quality and independence of testing, the effectiveness of the market surveillance system and the European oversight in the type-approval process. The Commission proposed to replace the current framework with a new Regulation. In a second part, this proposal is dealt with. The Parliament and the Council already expressed their position at first reading.

Prekogranično sticanje svojine na poljoprivrednom zemljištu i pojedini problemi mađarskog prava s tim u vezi

While Serbia is working on a new EU-conform land law, the EU law concerning the cross-border acquisition of agricultural lands cannot be considered as a static phenomenon. Namely, the issue is quite controversial among the EU's institutions and Member States. Evidence of this is the high number of infringement procedures launched by the EU Commission against the Member States joined the EU in 2004 or afterwards (hereinafter referred to as New Member States). However, it is worth stressing that the debate is not merely a New-Member-State-issue but a general one, and there are numerous uncertainties which may affect even the old Member States' land law regimes. That is the reason (or one of the most important reasons) why the European Parliament adopted a report on the state of play of farmland concentration in the EU in 2017. It seems that nowadays land issues have also become one of the topical questions of the EU, which questions could be raised because the EU is in a kind of the crisis. The EU should redefine itself and its goals, furthermore, it also should determine a new structure in numerous parts of life. The European Council for Rural Law (more usually known as the CEDR from its French name 'Comite Europeen de Droit Rural'), a think-tank which regularly provides assistance and advice to the institutions of the European Union, also dealt with the cross-border land law issues of the EU; namely, in a commission (COM II) concerning rural areas of the CEDR Congress (Potsdam, 2015) and at the conference on the 60th anniversary of the CEDR (Brussels, 2017). In a Hungarian conference (Budapest, 2017), the legal experts were gathered by the Hungarian Association for Agricultural Law and the Public Law Sub-Commission of the Hungarian Academy of Sciences in order that they could present the possible ways of the improvement for the EU and its Member States. With regard to this development, the present article focuses on the EU's main rules concerning the acquisition of agricultural lands, the infringement procedures against Hungary (hereinafter referred to as Hungarian cases), the report of the European Parliament and the general conclusions of the Budapest conference. The Hungarian cases are relevant not merely for Hungary as the European Commission has expressed its concerns about the most of regulations of the Hungarian land law in comparison with other concerned New Member States. Taking the low numbers of the CJEU cases (concerning land law) into consideration, the Hungarian cases might be significant for the whole of the EU and its future.

Electricity Sector Reforms in Bosnia and Herzegovina: Results and Policy Implications

Analysis shows that electricity sector reforms in Bosnia and Herzegovina have not been implemented as they should according to the Third Energy Package and obligations deriving from the Energy Community membership. Despite the sanctions and infringement procedures for non-transposition of the Third Energy Package that has been adopted against Bosnia and Herzegovina, its legal and regulatory framework for the electricity market is still non-compliant with the Energy Community acquis. Legal framework harmonization with the Acquis communaitaire is completely missing on the state level in Bosnia and Herzegovina while the legal compliance with the Acquis is somewhat better on entity levels. Still, they do not comply with the Third Energy Package as well and this situation strongly hinders the required structural reforms and liberalization of the electricity market. Development of electricity market in Bosnia and Herzegovina has been also influenced by regional electricity market that started by European Union’s incentive. Extending the European Union internal energy market to its neighboring countries, the Energy Community aims to create a regulatory and market framework capable of securing reliable energy supply and attracting investments in the energy sector. All Contracting Parties from Southeast Europe started to implement reforms in the energy sector at a different pace, but Bosnia and Herzegovina has been marked as the worst performer. It is not wondering because Bosnia and Herzegovina is a victim of its own constitutional framework and political complexity. However, during 2016 some new developments have occurred that give some hope for this country to solve some of the obstacles for functioning national and regional electricity market.

Hungarian spirits palinka as a “hungaricum” II. The effect of tax-free production in Hungary and in the European Union

Palinka is a traditional Hungarian fruit spirit prepared exclusively by the distillation of fruit mash or fruit pulp. As an alcohol product, it is subject to the Act CXXVII of 2003 on Excise Duties and Special Regulations on the Distribution of Excise Goods amended several times. The present government of Hungary pledged to grant the right of free palinka distillation again in the previous election campaign. As of 27 September 2010, the excise duty of subcontract-distillation was repealed, and the previously non-existent “official” home distillation was introduced, which resulted in explicit revenue losses for the state budget. The modification of the law mentions distillate instead of the word palinka. The difference between the two notions will be discussed in the present study. Presumably, lawmakers did not consider the fact that at the time of Hungary’s EU accession we entered into an agreement stipulating that the tax on subcontract-distillation should not be lower than 50% of the tax on alcohol products. Having been unable to agree on a solution to the problems in question, Brussels launched an infringement procedure against Hungary. Finally, Hungary was convicted; therefore, tax exemption or palinka distillation shall be ceased. This regulation came into force on 01 January 2015. The reactions of those who used the services of subcontract distillation were negative; turnover plunged by approximately 85% compared to the year of 2014. The present research will present the amendments concerning home distillers due from 2016 and the elements of the bill intended to amend the Act LXXIII. of 2008.
 JEL CODE: K34, L51, L66

The Commission’s Omission to Use Article 267 tfeu as a Tool to Enforce eu Environmental Law

The present contributions examines if and to what extent preliminary judgments by the Court of Justice were used as an enforcement tool and helped the full legal and practical application of eu environmental legislation. Looking at available data about the use of this procedure and at the enforcement practice of Member States and the eu commission it is concluded that neither the means of preliminary reference according to Article 267 nor the infringement procedure under Article 258 tfeu are systematically exploited for effective enforcement of eu environmental law. In particular, it becomes evident, that Commission does not assume its role as environmental law enforcement authority. It rather acts as an opportunist political body which sometimes takes into consideration the rule of law, but sometimes not.

The European Parliament's Role: Towards New Copenhagen Criteria for Existing Member States?

AbstractThe new own‐initiative report the European Parliament is preparing has three aims: to provide a formal evaluation of the recent initiatives by the Commission and the Council; to present a viable alternative; and to do so in the form of a legislative report, so as to obtain a formal reaction from the Commission. The institutions have proposed several possible solutions to the crisis of the Rule of Law in the EU. It is time to put them into a coherent system. The report will focus on five issues: the body for a permanent country‐by‐country monitoring of democracy, the Rule of Law and fundamental rights in the EU; the role of the Agency for Fundamental Rights; whether and how infringement procedures should be revisited in this context; what a proper pre‐Article 7 Treaty on European Union (TEU) procedure should look like; and what a valid legal basis for the proposed changes should be.

EUROPOS SĄJUNGOS VERTYBIŲ LAIKYMOSI UŽTIKRINIMO PROBLEMOS

Šiame straipsnyje tiriama ES vertybių, įtvirtintų Europos Sąjungos sutarties 2 straipsnyje, laikymosi užtikrinimo mechanizmai, numatyti ES teisėje, jų tinkamumas ir pakankamumas. Dėmesio skiriama Europos Sąjungos sutarties7 straipsnyje įtvirtintam mechanizmui ir jo efektyvumui, kartu įvertinamos Europos Komisijos ir Tarybos pasiūlymuose pateiktos papildomos priemonės, skirtos ginti pamatines ES vertybes, ypač teisinės valstybės principą.

Better Late than Never? On the Commission's Rule of Law Framework and its First Activation

This article first describes how the election of national governments intent on implementing ‘illiberal’ agendas has led the European Commission to adopt a new instrument known as the Rule of Law Framework. The mechanism’s potential effectiveness and the Commission’s reasoning to justify its activation against Poland, when it has failed to do so against Hungary, are subsequently analysed. It is argued that while the Commission should be commended for seeking to address increasing rule of law backsliding at the EU Member State level, it may also be criticised on five main grounds: its procrastination with respect to Hungary; its lack of consistency in the light of the reasoning used in the case of Poland; its misrepresentation of Article 7 TEU as a ‘nuclear option;’ its continuing failure to trigger Article 7(1) TEU against Hungary; and finally, its unwillingness to more forcefully apply the infringement procedure in a situation where a pattern of systemic breaches of EU values has clearly come to light, as has been the case in Hungary since 2011. More fundamentally, it is submitted that reliance on the Rule of Law Framework alone, if only because of its many shortcomings, will not remedy a situation where systemic violations of EU values form part of a governmental plan to set up an ‘illiberal’ regime.

Acquisition of the ownership of agricultural lands in Hungary, taking the EU's and other countries' law into consideration

The present article concentrates on the acquisition of ownership (and in some respects: use) of agricultural and forestry lands, especially as to the cross-border aspects. One of the hypotheses of the article is that the above mentioned issue is a topical question almost all around the world. Nevertheless, the article focuses on a European aspect of the cross-border acquisition, namely the new land law rules of the EU's Member States having joined the European Union in 2004 and 2007. In 2014 and 2015, the European Commission had assessed the land law of these Member States (i.e. Bulgaria, Hungary, Latvia, Lithuania, Slovakia) and initiated infringement procedures against these countries at the Court of Justice of the European Union. Besides the regulation of these new Member States of the EU, the present article deals with the legislation of other Member States as well as the provisions of non-EU states. The article gives substantial consideration to phenomena such as sovereignty, land-hunger or soil degradation which may exercise significant influence on the land law of a state.

Typology of Pre-Lisbon Acts and Their Legal Effects According to Protocol No. 36

The legal effects of acts in the field of police cooperation and judicial cooperation in criminal matters, adopted on the basis of the TEU prior to the entry into force of the Treaty of Lisbon, are preserved until those acts are repealed, annulled or amended. There is still a considerable number of such acts in force. The article looks into what exactly these legal effects are today, distinguishing between four categories of such acts (framework decisions, decisions, implementing decisions and conventions); one of the legal effects looked at is the possibility of infringement procedures. Reference is made to a recent ECJ judgment which clarifies the legal effects of implementing decisions and rules that such decisions can still be adopted today, under certain procedural requirements.

Article 260 TFEU Sanctions in Multi-Tiered Member States

Abstract The question at hand is located at the intersection of EU law and national constitutional law, and aims to answer the following problem: namely, how to mitigate federal concerns in the context of infringement procedures and financial sanctions under art. 260 TFEU. This article approaches this question both from the perspective of the Commission and the Court of Justice, as well as from the vantage point of the central and regional governments involved. After analysing the composition of the financial sanctions, we cover the involvement of subnational entities in the infringements proceedings in six tiered Member States (Austria, Belgium, Germany, Italy, Spain, and the UK) and the relevant national provisions for the partition of financial sanctions. The conclusions pertain to both the central and regional level and the EU institutions concerned, adhering to the multi-level relationship subjacent to this article.

EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections

The troublesome Hungarian, and possibly Romanian, developments regarding democracy, constitutionalism and the rule of law call for the attention of the European Union and its Member States, in particular regarding violations of the principles of Art. 2 TEU. Various proposals for monitoring mechanisms or even new institutions of oversight have been made, including a Copenhagen Commission and a systemic infringement procedure.1 The core problem faced by the European Union regarding the democratic nature of its Member States seems one of the ‘safeguarding of the core values on which the Union has been established’. If one can find reasonable justifications of why the EU should engage in safeguarding those values, then it is adamant to scrutinize the structural efficacy of potential instruments and mechanisms.3 The larger part of the debate on this matter – which particularly erupted with the Hungarian constitutional 'coup' and subsequently the Romanian constitutional and rule of law crisis – identifies a generally legalistic approach to the problem and endorses distinctive legal remedies, which either need reform of the Treaties or not. My argument here will problematize a purely formalistic and legalistic approach, and for that matter, will be less ‘policy-applied’ and ‘problem-solving’, but rather a suggestion for a more comprehensive analysis grounded in sociological and political reflections. My take will be a sociology of constitutional democracy and the rule of law, and I will ask whether current considerations and solutions offered sufficiently take into account distinctive dimensions of the functioning of constitutional democracy. Such dimensions are crucial for the actual ‘safeguarding of the core values’ of the EU, but are in my view unlikely to be satisfied through a one-sided legalistic and formal-procedural approach.

La multa coercitiva y la suma a tanto alzado en el recurso por inejecución de sentencia ante el Tribunal de Justicia de la Unión Europea

El presente artículo se centra en la evolución, naturaleza y ejecución de la multa coercitiva y la suma a tanto alzado como medidas pecuniarias que han previsto los Tratados de la Unión Europea para garantizar la aplicación efectiva del Derecho de la Unión por parte de los Estados miembros. Para comprender el contexto en el que se desarrollan estas medidas se ha comenzado desarrollando el procedimiento por inejecución de sentencia regulado en el art. 260.2 del Tratado de Funcionamiento de la Unión Europea. En virtud del mismo y para aquellos casos en que los Estados no ejecuten una sentencia declarativa de incumplimiento, la Comisión Europea, tras la tramitación de una fase precontenciosa, puede solicitar al Tribunal de Justicia de la Unión Europea que imponga una serie de medidas pecuniarias para inducir al Estado miembro incumplidor a que cumpla con lo dispuesto en la sentencia anterior.

Guarding the guardian: ‘Article 258 TFEU complaints’ before the European Ombudsman

The infringement procedure of Article 258 TFEU has been consistently viewed by the EU administration and judges as a bipolar bargaining game between the European Commission and the defaulting member state, in which individuals have no role to play. The European Ombudsman's efforts to triangularize the infraction process have resulted in the introduction of a number of soft-law, non-justiciable commitments for the Commission, which are currently set out in the 2012 Communication on its relations with complainants. This article considers the Ombudsman's contribution in the field of infringement complaints by empirically examining the application of the principal provisions of the Commission's Communication in his decision-making. The resulting finding is that Article 258 TFEU complainants have substantially benefited from the Ombudsman's creativity beyond the tight constraints of legality. Points for practitioners The analysis brings to the fore a number of key soft-law, non-justiciable commitments that the European Union administration is expected to honour in its everyday dealings with the European citizenry. The discussion also explores the transformative impact that extra-judicial means for the delivery of administrative justice can have on the ethos and praxis of supranational management. The European Commission's reaction to the European Ombudsman's investigative pressure and the resultant restraints on the former's discretionary powers are useful lessons, which transcend the European Union context and could set the tone for relevant developments in the domestic spheres of the EU member states.

Italian Golden Shares A Never-Ending Story?

The Italian ‘golden shares’ created on the basis of Decree-Law No.332/1994 have been overruled by the Court of Justice of the European Union (CJEU) back in 2000 in case C-58/99. In 2007 the CJEU has once again pointed on the incompatibility of the GSs with the Community law in Federconsumatori. The Italian government has been reluctant to comply and remove the contested Law. Instead it has tried to justify it by new provisions amending the original law. These new amendments became subject of the second judgement in 2009 on case C-326/07. In 2010, Berlusconi has issued a controversial decree which aimed to comply with the golden share cases C-58/99 and C-326/07. However, the measures proved to be insufficient and the breach of the Community law persisted nonetheless. Now, following the infringement procedure for non-compliance, after more than a decade of procrastination, the Italian government seem to have finally addressed the issue. New Italian technocratic government led by the former EU Competition Commissioner Mario Monti significantly amended the original golden share law. Yet again, the original golden share legislation has been amended, not repealed, which in turn has the potential to be incompatible with the EC law. This paper analyses compliance obligations and initiatives which stem from the judgments of the CJEU on the Italian golden shares, assessing whether Italy has acted in good faith towards the sincere co-operation principle enshrined in the Treaty.