Infringement Procedure under article 267 FTUE.- Recurso por incumplimiento y artículo 267 TFUE sobre reenvío prejudicial.-

by María Luján López
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It is well known that the EU Commission has a powerful roll as guardian of the Treaties.

The mission of this work is to provide some precisions about the Commission's powers in the practice of the infringement procedure.

The task of supervising the enforcement of Community law has been entrusted to the Commission, as we have said in his capacity of guardian of the Treaties, by Article 211 ECT (former Article 155). In exercise, of this prerogative the Commission carries with specific responsibilities and obligations, from which it can not escape.

The existence of this feature, but particularly the practice of the infringement procedure under Article 226 ECT (former Article 169 ECT) is an institutional competence of the Commission and it is exclusive in nature.

Of course, the Member States also have an important role in the same direction. They must ensure the application of Community law fully and effectively at all levels of government. Under the same duty especially rests the obligation of the national courts . Failure to comply with this requirement may result in breach of Community law, and possibly in state responsibility.

We will put in connection the privilege of the Commission to initiate the infringement procedure, specially taking into account the latter case, that is to say, the hypothesis in which the action or inaction of a Member State is contrary to Community law, and in particular when the courts of last instance of a Member State is in breach of the obligation stated in Article 234.3 of raising a preliminary question to the European Court of Justice.

In the same way some of the virtues of the infringement procedure will be analyzed in conjunction with the duty marked by Article 234.3 ECT.

As a first step, we will inquire whether the Commission's power to open an infringement procedure is discretionary or ruled.

Secondly another question that arises in the context of the breach procedure for failure of Community law on the part of the Member State when the national courts of last resort fail to raise a preliminary-ruling before the ECJ, is whether or not the action of the Commission through the infringement procedure to control the task of the supreme courts contribute to a better functioning of the judicial system of the union without interfering in the principle of judicial independence. As it is known, the Commission has remained on the sidelines when the national courts against whose decisions there is no judicial remedy under domestic law, refuse to exert preliminary rulings to the ECJ, on the basis that the use of the infringement mechanism to avoid this behaviour on the part of the national courts would not be a suitable tool, since it may result in an interference with judicial independence.

However, this seems to have changed since the Commission started an infringement procedure, in concrete against Sweden, where the national courts of last resort refused to fulfil the mandate given by Article 234.3 ECT. As a result of the inquiries hold by the Commission in that procedure, it reached the conclusion that the third paragraph of Article 234 EC was not fully met for this Member State .

In this work we will also have the opportunity to see, how effective the Commission's action has proved to be, when it made to the Swedish Government the suggestion that internal procedural law had to be amended, and how the state agreed to this request, but not at the stage of the contentious proceedings .

Thirdly we will also study the implications of this change in the views of the Commission regarding the enforcement of the obligation stated in the third paragraph of article 234 ECT, and the consequences that it could have facing a possible application of article 226 ECT before failures of the national courts of last instance in referring preliminary rulings to the ECJ. The consequences are also obvious if a sentence of the Court of Justice upholding the Commission's reasoned opinion arises, taking into account that this could have ramifications for individuals, since a ruling by the Court in the same direction to settle a claim compensation for damages for violations of Community Law could confirm what the Commission indicates.

For the mission of this work, we won’t revise elementary notions about preliminary-ruling or the practice of the breach procedure , because the doctrine has extensively dealt with both. We will refer to these sources in the necessary and strict extent that allows us to complete the purpose of this study.

In the first place, we will analyze the discretion of the Commission to open infringement proceedings, the legal and jurisprudential background that indicate which courts are obliged to raise preliminary-ruling, and then the reasoned opinion issued by the Commission against Sweden, taking particularly into account how it gets tied with doctrine and criteria emanating from the Court of Justice, especially with that standard derived from the cases CILFIT and Köbler . In the end we will study the modification made within the domestic Swedish law and set the conclusions arising from the work of analysis.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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