Mirosława Kapko, Szymon Wesołowski
One-Shotters or Repeat Players? New Member States before the
European Court of Justice
Full text of this analysis was published in European Judicial Review [Europejski
Przegląd Sądowy] 2007, vol. 10, p. 55-62 and vol. 11, p. 52-59.
The aim of this article is to assess the potential influence of the 10 new Member
States on the evolution of acquis communautaire through an analysis of their
engagement in the proceedings before the Court of Justice of the European
Communities. Indeed, it is already a well-established fact that some Member States
make use of the litigation in Luxembourg to achieve far-reaching goals, exerting
influence on the direction of legal integration in the European Union. Marie-Pierre F.
Granger carried out a study on the Member States’ litigation policies, proving their
growing interest in contributing to the development of the Community case-law2. New
Member States have not, however, been subjected to such a scrutiny yet. In the
following article the participation of their governments in the preliminary reference
proceedings and the procedures in the case of direct actions will be subsequently put
under examination, in order to identify the potentially most influential actors before the
ECJ and their litigation strategies.
1
I.
An alternative to Brussels?
The main reason behind Member States’ increasing interest in proceedings before the
Court of Justice of the European Communities (henceforth referred to as the ECJ or the Court)
is probably their weakening position in the process of Community law-making. In the
enlarging European Union, where the European Parliament’s position in the legislative
procedures is rising and qualified majority voting (QMV) replaces unanimity, the influence of
a single Member State on the direction of legal integration is shrinking rapidly. It seems
therefore quite natural that, taking into account the growing juridification of European
societies that has turned judicial processes into sites of policymaking3, and the specific
features of the EC judiciary, Member States tend to resort to litigation before the ECJ.
The Court, which performs a dual function as the supreme and constitutional court of
the European Communities, has a significant influence on the Community’s legal order
through its case-law. Its role goes beyond simple application of legal rules and is getting
closer to that of courts in the common law legal systems. In fact, the ECJ rulings are regarded
as quasi-precedents and its jurisprudence constitutes an important source of Community law.
Thus, an efficient impact on case-law may result in a change in the EC legal framework.
1
The term “new Member States” refers in this article only to the 10 Member States which acceded to the
European Union in 2004. Although Bulgaria and Romania, which joined the EU in 2007, are indubitably new
Member States too, they are not taken into account in the analysis owing to the lack of sufficient data.
2
M.-P. F. Granger, When governments go to Luxemburg… : the influence of governments on the Court of
Justice, European Law Review 2004, vol. 29, no 1, p. 8.
3
L. Malferrari, The Functional Representation of the Individuals’ Interests Before the EC Courts: The Evolution
of the Remedies System and the Pluralistic Deficit in the EC, Indiana Journal of Global Legal Studies 2005,vol.
12, issue 2, p. 667.
1
Furthermore, it should be emphasised that procedural regulations4 favour Member States over
other litigants before the ECJ, e.g. granting them an opportunity to participate in the
proceedings they are formally not party to.
Consequently, governments’ involvement in the proceedings before the Community
courts has quickly become one of their preferred means to influence the development of
European Union law. The statistics reflect well their growing interests in the litigation before
the ECJ (see point III.2. of this article).
II.
One-Shotters and Repeat Players
Despite the obvious advantages of Member States’ judicial activity in the proceedings
before the ECJ, their participation policies vary greatly. Some governments are very active
litigants, whereas others seldom take part in the proceedings, focusing exclusively on the most
seminal cases or on the defence of their direct interests. Needless to say, the assessment of
their influence on the case-law is difficult, and makes the identification of the most efficient
litigation strategies before the ECJ a really onerous task.
Yet reference shall be made here to the sociology of law and, precisely, to Marc
Galanter’s theory of the limits of legal change5. He divided parties in the court proceedings
into two categories: ‘one-shotters’ and ‘repeat players’, according to their capabilities to
influence the evolution of the American legal order through courts’ case-law. One-shotters
refer to the courts only occasionally, but their interest in winning a particular case is usually
very keen. Repeat players, on the other hand, engage in the litigation frequently, even if they
have low stakes in the outcome of any particular case, as they focus primarily on their longterm interests. Thus, repeat players often enjoy economies of scale and have low start-up costs
for any case they decide to take part in. It will be also noticed that they usually have the
resources to develop necessary expertise and build a team of specialists representing and
assisting them in the litigation6.
Although the judicial activity of one-shotters might sometimes provoke a substantial
legal change, most often their influence on the legal order is negligible and – what is more
important – totally random. Member States may be classified as one-shotters, for example, if
they tend to participate in the proceedings before the ECJ as defendants, rarely taking part in
the litigation on their own initiative.
Repeat players, on the contrary, develop long-term litigation strategies, with the
intention of provoking a legal change through their consistent and regular judicial activity7.
Such an attitude seems to be an optimal strategy of influencing the evolution of acquis
communautaire. Thus, governments frequently participating in the proceedings, which do not
limit their activity to defence of their current interests but act rather in the pursuit of certain
predefined objectives, will stand, according to Marc Galanter’s theory, the best chance of
impacting on the ECJ case-law and, consequently, the Community’s legal order as a whole.
III.
Member States’ activity in the preliminary proceedings
4
Articles 220 to 245 of the Treaty establishing European Community (henceforth referred to as TEC), the
Statute of the Court of Justice and the Rules of Procedure of the Court of Justice.
5
M. Galanter, Why the „Haves” come out ahead: speculations on the limits of legal change, Law and Society
Review 1974 (9), p. 97.
6
Ibidem, p.98.
7
The best example of a “classical” repeat player’s approach to the participation in the proceedings before the
ECJ is the activity of the European Commission, which has never missed a chance to submit its observations in a
preliminary reference case, whatever their implications for the Community’s legal order might be.
2
Participation in the preliminary reference proceedings is usually regarded as the most
efficient – and the most widely used – of all accessible judicial means to influence the
evolution of the Community’s legal order. The ‘attractiveness’ of the Article’s 234 TEC
proceedings to governments can be explained in three ways.
Firstly, the very nature of the preliminary rulings procedure ensures that the rulings
usually have a significant impact on the acquis communautaire. Indeed, the majority of the
most seminal judgments – constituting true milestones in the evolution of the EC
jurisprudence – were delivered in that procedure8. Secondly, a special role of the preliminary
rulings in the Community’s legal framework shall be also taken into account, as such rulings
have de facto character of legal precedents. Whereas an ECJ ruling is formally binding only
on the national court hearing the case on which the decision is given, the Court tends to
respect its own jurisprudence and expects national courts, from all the Member States, to
follow its rulings. That conclusion can be deduced from Article 104(3) of the Rules of
Procedure of the Court of Justice. According to its provisions, the ECJ may, in the ‘obvious’
cases9, give its decision by reasoned order in which reference is made to its previous
judgement or to the relevant case-law. Consequently, a national court seeking an
interpretation of the Community law should not refer the case to the ECJ unless there is no
case-law concerning the relevant question. Apparently, such an approach might even be
regarded as a step towards an implementation of the stare decisis doctrine in the EC legal
framework.
Finally, the procedural framework of the preliminary reference proceedings makes it
particularly convenient for Member States to present their observations to the ECJ. Although
the preliminary reference procedure is based primarily on the cooperation and dialogue
between the courts (the ECJ and national courts), Member States’ participation is an
important element in the process of interpretation of the Community’s legal provisions. It is
already settled case-law that information contained in the preliminary references shall not
only give the ECJ the possibility to handle the questions referred, but also provide
governments with a real possibility to submit their observations in the case (see orders in
Cases C-480/04 d’Antonio, para. 6, C-116/05 Dhumeaux and Cie and others, para. 22 or C234/05 BVBA de Backer, para. 1010). Indeed, in the preliminary proceedings Member States
not only may submit observations in the written procedure (pursuant to Article 23 of the
Statute) but may also – independently – present their positions in the oral hearing (Article
104(4) of the Rules of Procedure).
III.1. Methodology
The scrutiny is based on the analysis of the governments' participation in preliminary
ruling procedures initiated in the years 2004-2006. In order to ensure a level playing field for
the old Member States (EU15), as well as for the new ones (EU10), only those cases were
taken into account where preliminary references were notified by the ECJ after the accession
of the new Member States to the EU (that took place on 1st May 2004). Thus, all Member
States had an opportunity to engage in the cases that were under examination. As already
mentioned, Member States may take part in the written and/or oral phase of the preliminary
8
The now obvious fundamental principles of Community law were established by the ECJ in the preliminary
rulings – e.g. the principle of primacy (Case 6/64 Costa v ENEL E.C.R. [1964] 1194) or the doctrine of direct
effect (Case 26/62 Van Gend & Loos E.C.R. [1963] 3).
9
Where a question referred to the Court for the preliminary ruling is identical to a question on which the Court
has already ruled, where the answer to such a question may be clearly deduced from existing case-law or where
the answer admits of no reasonable doubt.
10
None of the three orders have been reported yet.
3
reference procedure, but for the purposes of this analysis their involvement was counted only
once – whether they submitted written observations or presented their position in the oral
hearing or both.
The scope of the examined material covers ca. 522 cases, from C-125/04 Denuit and
Cordenier11 to C-534/06 Industria Lavorazione Carni Ovine12. Member States decided to
present their views to the ECJ in 431 proceedings, whereas the total number of governments’
observations (in written or oral form) reaches 1206. The material is, however, not complete,
as some data, concerning mainly preliminary references registered at the end of 2006, are still
missing. Some Member States, for example, often participate solely in the oral part of the
procedure, which makes it impossible to measure their judicial activity until all the hearings in
2006 cases have been closed. The actual number of Member States’ observations will
therefore rise. Despite those obvious shortcomings, the sample – 431 cases that Member
States were interested in – seems to be representative enough to draw some important
conclusions about the governments’ approach to the litigation before the ECJ.
III.2. General trends
In May–December 2004 an EU15 country participated, on average, in almost five (4.9
to be precise) times more preliminary cases than a new Member State (EU15s presented their
views in 311 cases, while EU10s presented theirs only in 42). The huge gap between the
judicial activity of the new and the old Member States was evident (see Chart 1).
Chart 1.
The activity of an average EU10 and EU15 Member State as a function of time.
30
25
20
15
10
EU15 - average number of observations per
Member State
5
0
EU10 - average number of observations per
Member State
2004
2005
2006
EU10 - average number of observations per Member State
11
12
EU15 - average number of observations per Member State
E.C.R [2005], p. I-923.
Not yet reported.
4
Nevertheless, that gap is gradually closing. In 2005, the average number of
observations made by a single old Member State exceeded by 4.3 times a new Member
State’s result. Finally, in 2006 its supremacy shrank to 3.2 observations more than an EU10
country. New Member States have already participated in 68 preliminary proceedings started
in 2006, compared with the EU15 at 330 (the considerable decline in the global EU15 activity
– when compared with the previous year – is probably because the data concerning 2006
cases have not been completed yet). That process will definitely take some time –
‘newcomers’ need to learn the benefits of active participation policy first, and also they have
to develop a system for their interests’ representation before the ECJ and define their
priorities in the litigation policy.
Austria, Finland and Sweden, who joined the European Union in 1995, had a similar
path to travel. Right after their accession, in 1995, each one submitted, on average, three times
fewer observations than an old Member State did. In 1996 the level of those new Member
States’ judicial activity was twice as low as that of the rest. In 1997, however, the gap had
almost disappeared, as an average ‘old’ Member State submitted only 15% observations more
than an average ‘newcomer’13. The progress made by those three countries must look
impressive when compared with the EU10’s judicial activity growth. Yet account must be
taken of the fact that Austria, Finland and Sweden are medium-sized countries, with sufficient
resources to participate actively in the judicial proceedings, whereas the majority of the EU10
Member States are relatively small. Besides, at the moment of their accession all three
countries were far better prepared for membership of the European Union than an average
EU10 country, as they had been closely cooperating with the Member States in economic and
political affairs for years, thus being fairly familiar with the basic mechanisms of the EC
judiciary.
III.3. The analysis of EU10 activity in preliminary reference proceedings
The statistics for the 10 new Member States’ activity in preliminary reference
proceedings show the very strong dominance of Poland, which decided to take part – either
lodging written observations or presenting its views at the oral hearing – in 62 cases (see
Chart 2). It is worth noting that the average for the EU10 is only 19 observations per Member
State, that is three times less than Poland’s result. Nonetheless, such an outcome should not be
very surprising, given that Poland is the biggest and most populous state in the examined
group. Indeed, the new Member States’ involvement in preliminary proceedings is to some
extent determined by their size and population. Big countries usually have larger and more
specialised public administration structures, better access to human resources and financing,
so stand a better chance of presenting their views often in the proceedings before the ECJ. The
good results of Poland and of the Czech Republic suit that logic well. The ‘size-does-matter’
principle, however, is not absolute. Some big Member States do not benefit from their
privileged position and seldom participate in the judicial proceedings, whereas some small
and medium Member States, as will be further proved, have nearly mastered the art of
influencing the ECJ case-law through active litigation policies.
13
The comparison is made on the basis of data presented by M.-P. F. Granger in: When governments go to
Luxemburg… , op. cit. p. 8.
5
Chart 2.
Observations in preliminary cases made by the new Member States in the years 20042006.
70
60
50
40
30
20
10
0
Cyprus
the Czech
Republic
Estonia
Lithuania
Latvia
Malta
Poland
Slovakia
Slovenia
Hungary
A good example of such a ‘success story’ is Cyprus, which seems to be well on the
way to contradicting the correlation between a Member State’s size and the extent of its
engagement in preliminary reference proceedings. A relatively high number of observations
submitted (Cyprus took part in 20 cases), that exceeds the average for EU10 as well and the
results of the majority of new Member States too (except for Poland and the Czech Republic),
proves that any Member State may be an active litigant before the ECJ, whatever its size or
political position in the European Union. Indeed, influencing the development of acquis
communautaire by means of active participation in the judicial proceedings should be most
attractive to ‘small and medium’ Member States, providing them with compensation for their
small influence in the process of Community lawmaking. If it is rarely the case – as that
conclusion can be drawn from Chart 1, too – that is probably because the conditio sine qua
non for active participation in judicial proceedings is an efficient system of Member States’
representation before the ECJ. The development and implementation of such a system usually
favours bigger countries, which have better access to necessary specialists (highly-qualified
lawyers with an excellent competence in European law) and finance (salaries and professional
training for staff, outsourcing of certain tasks, etc.). Last but not least, an assumption can be
made that not all of the EU10 governments have already recognised the advantages of active
litigation policy before the Community’s courts.
Poland is also, up to now, the only new Member State in the group of the 10 most
judicially active Member States in the European Union. Its observations lodged with the ECJ
in 62 cases assured it the 8th position in the ranking (see Chart 3), right after Austria, but
before Belgium and Spain. Yet a distance between the leading states – the Netherlands, Italy,
Germany and the United Kingdom – and other Member States remains noticeable. Each of the
four most active Member States presented its views to the ECJ in twice as many cases as
Poland.
6
Chart 3.
The 10 most active Member States in preliminary ruling proceedings.
140
120
100
80
60
40
20
0
the
Netherlands
Italy
Germany
United
Kingdom
France
Greece
Austria
Poland
Belgium
Spain
The most judicially active Member States – the Netherlands and Italy, ex aequo – took
part in the proceedings in 133 preliminary cases. The ‘first division’ also includes Germany
(131 cases) and the United Kingdom (120 cases). The outstanding result of the Netherlands is
the best proof that a high level of engagement in proceedings before the ECJ is not
determined simply by the size of the country or the development of its public administration
structures (although both factors are important). Small and medium Member States may also
create an efficient system of interest representation in the proceedings, guaranteeing
themselves the chance of preparing and submitting observations in any preliminary case they
deem to be important.
It should be emphasised, however, that even a considerable number of observations
put by a Member State in the course of judicial proceedings does not necessarily imply the
existence of a well-defined litigation strategy behind the scenes. In fact, its public authorities
may submit observations only to defend its particular, current interests in the preliminary
cases that directly concern its legal order. Thus, a basic analysis of the number of observations
submitted appears to be insufficient to determine whether a Member State really intends to
influence the EC case-law in the pursuit of long-term objectives or if it is contenting itself
with defensive, one-shotter tactics. Consequently, in order to identify potential repeat players,
the focus will be shifted first onto Member States’ participation in those cases that originated
from other Member States’ courts. An assumption can be made that observations submitted in
such cases serve more to present Member States’ general views on economic, social and
political aspects of European integration than to defend their current interests.
Chart 4 illustrates the 10 best results achieved by the Member States which submitted
most observations in those preliminary cases that originated from other Member States’
courts. The bar chart includes 12 countries, as Ireland, Finland and Belgium submitted 32
observations each.
7
Chart 4.
The most active Member States - observations in preliminary cases that originated from
other Member States’ courts
100
90
80
70
60
50
40
30
20
10
0
ly
It a
e
th
d
ite
Un
m
do
ng
Ki
y
an
m
er
G
e
th
s
nd
rla
e
th
Ne
G
e
ec
re
ce
an
Fr
nd
la
Po
Observations in preliminary cases originated from other Member States' courts
ri a
st
Au
n
ai
Sp
nd
la
Ire
d
an
nl
Fi
iu
lg
Be
m
Observations in preliminary cases originated from Member State's own courts
In that ranking Italy takes the lead, overtaking, together with the United Kingdom and
Germany, the former champion, the Netherlands. The good result of the latter can now be
better explained, as much of its activity (49% of the observations submitted) is generated by
its own courts. The national courts’ readiness to refer cases to the ECJ strongly determines
also the judicial activity of Belgium and Germany (41% and 40%, respectively, of their
observations were made in ‘domestic’ cases). In contrast, the bulk of observations submitted
by Ireland, Greece or Poland do not concern their own legal systems – for example, out of 33
cases Ireland participated in, only 1 originated from an Irish court. The results of Poland and
Greece are very similar – 95% and 88% of observations were submitted in ‘foreign’ cases.
Italy and the United Kingdom attach more importance to the defence of their current interests:
nonetheless, the sheer number of observations submitted by those Member States in the cases
that do not directly concern their own legal orders make them powerful players, seeking to
‘leave their footprints’ in all important ECJ rulings.
Although the examination of Member States’ activity in preliminary reference
proceedings originated in their own courts, and in those originated abroad is an important
element in the process of evaluation of governments’ influence on case-law, a further
clarification is required. Indeed, the conclusions that can be drawn from the analysis of Chart
3 may be ambiguous. Firstly, it is impossible to determine which pattern of defensive activity
Member States follow in their ‘domestic’ cases. The high ratio of observations submitted in
such cases may signify a classical one-shotter’s approach, but not necessarily. There is also a
possibility that a government, flooded with notifications of its own courts’ preliminary
references to the ECJ, decides to take part only in the most important cases, which implies the
submission of a considerable number of observations, anyway. Secondly, the interpretation of
the high level of judicial activity in cases originated from other Member States’ courts is also
far from being clear. It may well signal an ‘orthodox’ repeat player’s attitude: in the execution
of a fixed litigation strategy the Member State carefully selects cases, whether its own legal
8
provisions are at stake or not. The explanation may be, however, more mundane: national
courts in those Member States may rarely make use of the Article 234 TEC procedure,
leaving the governments spare resources to participate in other preliminary cases.
The remaining doubts may be – to some extent – clarified through the analysis of the
correlation between the number of preliminary references made by a Member State’s court
and the number of observations submitted in those cases by the government of the very same
Member State (see Chart 4).
Chart 5.
Number of the preliminary references originating from a Member State’s courts in
contrast with the number of observations made by its government in those cases.
160
140
120
100
80
60
40
20
0
ly
It a
e
th
d
ite
Un
m
do
ng
i
K
y
an
m
er
G
e
th
s
nd
rla
e
th
Ne
G
e
ec
re
ce
an
Fr
nd
la
Po
Observations in preliminary cases originated from Member State's own courts
ri a
st
Au
n
ai
Sp
nd
la
Ire
d
an
nl
Fi
iu
lg
Be
m
Total number of preliminary references from Member State's courts
Despite its apparently defensive character (see Chart 5, above), Germany’s litigation
policy appears to have a very selective character in domestic cases (in the period under
scrutiny, the government lodged its observations with the ECJ in only 52 out of 142
proceedings). If that outcome, as well as its considerable activity in cases originated from
other Member States’ courts, is borne in mind, the German government may be identified as a
potential repeat player, focusing primarily on those cases that are likely to influence the EU
policies and legal framework.
Governments of Belgium, Greece or, on a smaller scale, Ireland also tend to engage
only in the most important domestic cases. Consequently, they gain the ability to react in
seminal cases originated from other Member States, which could be otherwise reduced –
owing to insufficient human or financial resources (that is especially true in the case of small
and medium Member States).
The judicial activity of other governments, however, is much more defensive in
nature. The United Kingdom, the Netherlands or France rarely miss a chance to present their
views in the preliminary cases that concern their own legal order. At the same time the United
Kingdom and France are somehow privileged actors, as the number of preliminary references
from their courts is not very high – 36 and 29, respectively. Thus, their participation in those
proceedings does not constitute a heavy burden for their system of government’s
9
representation before the ECJ, leaving them a chance to engage in other preliminary
proceedings. By contrast, the Netherlands’ activity in preliminary proceedings is much more
concentrated on the defense of its legal order, as a significant number of Dutch cases before
the ECJ must hamper the government’s involvement in other proceedings. Nevertheless, the
overall judicial activity of the Netherlands remains spectacular.
The only new Member State that was taken into account in Charts 4 and 5, Poland,
requires a different approach, along with the other EU10 countries. Its government submitted
observations in all preliminary cases that originated from Polish courts, at the same time
maintaining a relatively high judicial activity in ‘foreign’ preliminary cases. It cannot be
deduced from that fact, however, that in the future Poland will keep on steering the middle
way: defending its interests and realising long-term objectives at once. So far Poland – as well
as the other new Member States – has rarely had a chance to take part in preliminary
proceedings directly concerning its legal orders, owing to the low number of references sent
to the ECJ by its own courts (see Table 1).
Table 1.
New Member States’ participation in preliminary cases originated from their own courts
in contrast with the total number of references lodged by those courts.
Member State
Observations in preliminary cases Total number of references
originated from the Member State’s from the Member State’s
own courts
courts
Czech Republic
3
3
Hungary
5
6
Lithuania
1
1
Poland
3
3
Not surprisingly, each of the new Member States concerned – except for Hungary –
decided to present their views in all the preliminary cases referred to the ECJ by their own
courts. It is also noticeable that, until the end of 2006, the majority of EU10 (namely Cyprus,
Estonia, Latvia, Malta, Slovakia, Slovenia) did not have an opportunity to submit
observations in their own, domestic preliminary cases. New Member States remain therefore
privileged actors in the EC judiciary, enjoying the possibility of concentrating all their
disposable means on the most important cases with which the ECJ is dealing. That may
explain the outstanding activity of some of the EU10 representatives, notably Poland. Yet it is
difficult to extrapolate the future position of Poland and other EU10 countries from the
current trends.
The gradual europeanisation of the new Member States’ courts will eventually result
in a higher number of preliminary references brought before the ECJ. Faced with the choice
between the defense of their current interests and the realisation of certain long-term strategies
– which would inevitably happen, given their limited ‘capacity to deliver’ – governments may
tend to favour participation in the cases directly concerning their legal orders. Although shortsighted, such a litigation policy may bring more short-term profits for the Member State’s
public authorities. When participating in the preliminary proceedings that originated from the
Member State’s own court, the government usually takes part in a classical zero-sum game,
which makes the stakes represented by the tangible outcome of the case particularly high. In
fact, a failure to defend the compatibility of the national law provisions with the Community’s
10
legal order may force a government not only to amend the national legislation but also to pay
damages to the individuals concerned (see Case C-313/05 Brzezinski14).
Another threat to the new Member States’ judicial activity in preliminary proceedings
is a possible avalanche of actions for infringement of Community law. Indeed, it must be
borne in mind that the majority of the EU10 countries have been benefiting from the ‘Article
226 TEC holiday’. Until now, the burden of infringement proceedings against the new
Member States has been rather negligible, but nonetheless the prognosis is not optimistic (see
point IV.1. of this article and Table 3 in particular).
Thus, on the presumption that they will soon have to handle numerous cases directly
concerning their national legal orders, new Member States will establish an efficient interests
representation system that would guarantee a fair balance between defending their current
interests and the pursuit of long-term strategic objectives.
The analysis of Member States’ participation policies in preliminary proceedings
brings us to the conclusion that so far potential repeat players might be identified solely
among the EU15 countries – Germany, the United Kingdom or Italy may serve as best
examples. The evaluation of the new Member States’ judicial activity cannot provide us with
such an answer yet, owing to an insufficient amount of data. There is, however, no doubt that
some of the EU10 Member States – e.g. Poland, Czech Republic or Cyprus – have good
prospects for the future and may transform one day into influential actors of the EC judiciary.
III.
Activity of new Member States in direct actions
New Member States’ participation in the preliminary reference cases, which is not
obligatory and depends only on the Member States’ will, aims at influencing indirectly the
development of the EU law. In contrast, their participation in the direct actions implies a
direct encounter with the Institutions, where Member States defend the status quo or try to
annul legislative acts that were passed despite their objection. Then, direct actions also ensure
the effectiveness of the EU law.
III.1. Actions for failure to fulfil obligations
The Commission initiates a preliminary procedure first which may eventually evolve
into infringement proceedings based on the Article 226 TEC. The proceedings may be a result
of the Commission's own investigations, identification of the litigious matters in the preaccession stage or lack of the notification of the national transposition measures (henceforth
referred to as MNE). The procedure may also be initiated by citizens' complaints and
petitions, as well as by questions received from the European Parliament. A significant
number of proceedings conducted (in 2004 - 2,993 cases, in 2005 - 2,653 cases, and in 2006 –
2,518) results from the fact that the Commission is taking notice of the alleged infringements
of the EU law by Member States.
The number of proceedings initiated by the Commission on the basis of its own
information rose from 328 in 2004 to 433 in 2005, which constitutes 38.3% of all registered
proceedings. In 2006 that number reached 565.15 As far as the new Member States’
infringements are concerned, the Commission had a rather simple task because, since the
accession negotiations, it has been aware of the areas where problems may be expected. Their
14
Not yet reported.
24th annual report from the Commission on monitoring the application of community law (2006), COM(2007)
398 final, s. 3.
15
11
identification, apart from other problems, was made during twinning projects, financed from
the EU budget and designed to assist in the implementation of the acquis communautaire.
At the same time a significant number of cases (in 2004 - 1,519, in 2005 - 1,066 and in
2006 – 1,049) related to non-notification were registered, most of them against Italy and
Spain. As regards the EU25, the number of proceedings for failure to notify the EU of
measures to be implemented fell by 29% in 2005 (from 1519 to 1079 cases), and by 16% in
2006, down to 904 cases (Table 4). The number of proceedings for failure to notify carried
out against the new Member States decreased from 738 in 2004 to 393 in 2005. This can be
partly explained by the fact that the 2004 figures include not only the regular monitoring of
the transposition tasks, but also the monitoring of the whole pre-accession acquis that the ten
new Member States were supposed to notify. Most of the infringements concerned the Czech
Republic (9.5%), Slovakia (6.8%), Latvia (6.8%) and Malta (6.7%). As to the general
implementation deficit, in 2004 Poland was in third place among the EU10, behind Hungary
and Lithuania (and the eighth among the EU25). In the following year, only Lithuania had a
better outcome then Poland, but at the end of 2006 it was also overtaken by Latvia.16
Table 2.
Comparison of the source of information about the infringements of the EU law by
Member States 01.01.2004-31.12.2006.
Source of
information
Own investigation
Year
2004
EU10 (incl.
43
Poland)
(10)
Total (EU25) 328
Complaints
2005
Non-communication
2005
2006
2004
2006
2004
2005
2006
151
(22)
433
227
(38)
565
66
185
154
738
393
342
(22) (51) (53) (44) (35) (30)
1,146 1,154 1.049 1,519 1,066 904
It can be expected that, in the future, the number of proceedings against the new
Member States launched on the basis of the non-communication of MNE will approach the
number of proceedings initiated by the complaint from the private party, as can be observed in
the old Member States. In 2004 the Commission received 1,146 and in 2005 – 1,154
complaints from individuals. In 2005 most of them came from Italy (13.8% of all complaints)
and Spain (12.5%), as well as from the new Member States – from Poland (4.4%), Hungary
(2.4%) and Malta (2.5%). During that year, the number of complaints sent from the new
Member States tripled and reached 185. Most of them came from Poland (22 in 2004 and 51
in 2005). In 2005 the number of complaints originating from Hungary increased (from 9 in
2004 to 28), as well as from Malta (13 and 29 respectively) and the Czech Republic (from 11
to 22). Nevertheless, the number of notices received from EU10 citizens cannot be compared
with the activity of the citizens from the EU15. For example, in 2005 the Italians sent 159
complaints, the Spanish - 144 and the Greeks - 115. The difference can be explained firstly by
the lack of awareness among the EU10 nationals about the possibility of lodging a direct
complaint about the national authorities’ activities, secondly by the unpopularity of the
Commission’s General Secretariat webpage, where the information about the monitoring of
the application of the Community law17 as well as the standard form of complaint18 are
published, and finally, by an unreasonable fear that the plaintiff’s identity will be disclosed.
16
Annex to the 23rd annual report from the Commission on monitoring the application of community law
(2005):Situation in the different sectors, COM(2006) 416 final, p. 6.
17
http://ec.europa.eu/community_law/eulaw/index_en.htm#infractions.
18
http://ec.europa.eu/community_law/complaints/form/index_pl.htm.
12
Irrespective of the source of information about the infringement, the highest number of
them concerns the internal market, protection of the environment, employment and social
matters, customs union and taxes. In the case of the proceedings initiated by the Commission
on the basis of its own investigations, however, the increase in the number of infringements in
the transport and energy sector (they consist of 32% of the total) can be observed. In the case
of non-communication, there are also a lot of complaints about the industry sector (15.7%)
and in the area of public health and consumer protection (31%).19 On the basis of the
Commission’s yearly reports on the monitoring of the application of the Community law, the
areas in which collective violation of the EU law or common delays in the transposition take
place are easily identifiable. The first situation occurs in the field of environmental protection
and, to some extent, labour law, customs union and taxes.20 The second situation takes place
in the domain of pharmaceutical law, transport and environmental law.21
The number of the initiated proceedings has no direct effect on the number of actions
before the ECJ. In 2004 the Commission conducted 4,489 investigations, of which 834 were
against the new Member States (in 2005 they numbered 3567 and 575 respectively). The
Commission decided to dismiss and discontinue 2,046 cases in 2004 and 3,213 cases in 2005.
Most frequently the Commission abandons the case before sending the letter of formal notice
(in 47% of cases in 2004 and 33% of cases in 2005) or before delivering a reasoned opinion
(in 30.7% of cases in 2004 and in 49% of cases in 2005).22 The Member State’s reply to the
reasoned opinion restrains the Commission from lodging a complaint with the ECJ in 9.5% 11.3% of the cases (in 2004-2005, but it happens each year that in 2-3% of the cases this
institution decides to withdraw the complaint from the ECJ).
The length of the procedure is considerable. Actions for failure to notify transposition
measures are concluded in the Court, as cases easy to prove, as the first ones. The same
applies to the actions based on the Article 228 TEC. Contrarily, an action for an incorrect
transposition or wrong application of the Community law takes a lot of time. The
Commission announced that for infringements originating in failure to notify national
measures to transpose directives, the average time of the proceedings amounted to 14,5
months. The average time needed to process cases originating in complaints and those
detected by the Commission’s own investigations equaled on average 28 months. Finally, the
average time of processing all the infringements in the period 1999-2005, from the time of
registration of the case within the specified time limit till the moment of sending the letter of
referral to the Court, was 20,5 months. 23 In the case of Poland, the longest time between the
receipt of the letter of formal notice and the reasoned opinion was 18 months24, while the
shortest was 2 months25, with an average being 10 months and 1 week26. The average time
20
In 2005 most of the proceedings in course - 51 - concerned the non-implementation of the Council Directive
92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992, p. 7).
21
21 Member States in 2005 were late with the implementation of the Directive 2004/28/EC of the European
Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the Community code
relating to veterinary medicinal products (OJ L 136, 30.04.2004, p. 58).
22
XXIIIeme rapport annuel sur le contrôle de l'application du droit communautaire. Annexe Statistique II:
Procédures d'infractions - ventilation par étape, base juridique, Etat membre et secteur (2005), p. 14, 16 and
(2004), p.4, 6.
23
24th annual report from the Commission on monitoring the application of Community law (2006), p. 4.
24
This case concerns the incorrect implementation of the Council Directive 89/105/EEC of 21 December 1988
relating to the transparency of measures regulating the prices of medicinal products for human use and their
inclusion in the scope of national health insurance systems (OJ L 40, 11.02.1989, p. 8).
25
This case concerns the non-notification of national implementing measures of the Directive 2004/39/EC of the
European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council
Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council
13
between the receipt of the reasoned opinion and the Commission’s decision to suit is 8 months
and 2 weeks.27
Table 3.
Comparison of the number of infringement proceedings against new Member States with
the distinction on the three stages of procedure in the period between 1.05.2004 and 31.12.
200628 and actions before the ECJ in the first half of 2007.
Member
state
2004
Stage of
procedure LFN RO ECJ
Cyprus
71
0
0
Czech
Republic
145
0
0
Estonia
76
0
0
Lithuania
15
0
0
Latvia
108
0
0
Malta
107
0
0
Poland
49
1
0
Slovakia
107
0
0
Slovenia
54
0
0
Hungary
32
0
0
2005
LFN
RO ECJ LFN
83
14
0
47
72
59
26
57
55
58
51
55
52
40
18
1
18
19
18
21
17
10
0
1
0
0
0
0
0
0
0
54
64
33
54
77
75
37
47
54
2006
1st half
2007
RO
ECJ
ECJ
20
0
18
12
10
12
18
21
17
14
18
4
2
0
0
2
3
2
0
0
0
5
0
1
0
2
4
0
1
2
The table above shows that in 2004 the Commission sent most of the letters of formal
notice to the new Member States: the Czech Republic, Latvia, Malta and Slovakia, which
could have been expected beforehand on the basis of the number of investigations. Not many
of them, however, ended before the Court. Till the end of 2006 the Commission conducted
only 13 investigations in which this institution lodged complaints with the Court. The first
case registered concerned an incomplete transposition by Estonia of the directive establishing
common rules for the internal market in natural gas29 (C-51/0530). Later, Estonia was sued for
sustaining the state monopoly in the postal services31 (C-78/0632). This case, however, as well
as the previous one, was dropped by the Commission. In 2006 two complaints against Malta
were sent to the Court, for non-transposition or non-communication of MNE on the common
rules on waste electrical and electronic equipment33 (C-36/0634) and for delays in the
and repealing Council Directive 93/22/EEC (OJ L 145, 30.04.2004, p. 1) and of the Commission Directive
2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the
Council as regards organisational requirements and operating conditions for investment firms and defined terms
for the purposes of that Directive (OJ L 241, 2.09.2006, p. 26).
26
The average concerns proceedings in course for which the Commission has already sent a reasoned opinion.
27
The average concerns 12 proceedings in course in which the Commission has already lodged a complaint at
the Court.
28
The table is prepared on the basis of the XXIVth and XXIIIrd annual Report on monitoring the application of
Community law.
29
Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common
rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ L 176, 15.07.2003, p. 57).
30
OJ C 281, 12.11.2005, p. 12. The case was removed from the register on the basis of the Commission’s
decision on May 2006 (OJ C 224, 16.09.2006, p. 33).
31
Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive
97/67/EC with regard to the further opening to competition of Community postal services (OJ L 176, 5.07.2002,
p. 21).
32
OJ C 143, 17.06.2006, p. 26.
33
Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical
and electronic equipment (WEEE) (OJ L 37, 13.02.2003, p. 24) and Directive 2003/108/EC of the European
14
preparation of the national plan on decontamination of equipment containing polychlorinated
biphenyls (C-8/0635). That year the Commission lodged another two cases related to freedom,
security and justice36 (C-79/07 and C-87/0737), but they were removed from the register in
August 2007.
So far the Commission has lodged two complaints against Slovakia. The first one,
concerning the lack of transposition of the directive on minimum level of training for some
road transport drivers38 (C-69/0639), was withdrawn from the register on 23 February 2007. In
the second case, on the non-implementation of the provisions concerning the interoperability
of the trans-European high-speed rail system40 (C-114/0641), the Court delivered its judgment
on 8 February 2007, when it confirmed the infringement. Another two complaints lodged with
the Court concerned Hungary: the non-transposition of the directive concerning the status of
third-country nationals who are long-term residents42 (C-30/0743) and for territorial
restrictions in delivering services on electronic communication by a cable television
provider44 (C-148/0745). Slovenia has only one case before the Court (C-267/0746), for nontransposition of the trans-European high-speed rail system47, as does Lithuania for not
ensuring in practice that caller location information is available to authorities handling
emergencies, to the extent technically feasible, for all calls to the single European emergency
call number (infringement of article 26(3) of the Universal Service Directive)48 (C-274/0749).
The statistics are most unfavourable for Poland and the Czech Republic. As for the
first Polish case, the Commission asked for a declaration that, by not ensuring actual
availability of at least one comprehensive directory and one comprehensive directory inquiry
service, Poland failed to fulfill its obligations under the directive 2002/22/EC50 (C-416/0651).
In the subsequent cases the Commission accused Poland of non-recognition of the certificates
Parliament and of the Council of 8 December 2003 amending Directive 2002/96/EC on waste electrical and
electronic equipment (WEEE) (OJ L 345, 31.12.2003, p. 106).
34
OJ C 131, 3.06.2006, p. 30.
35
Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and
polychlorinated terphenyls (PCB/PCT) (OJ L 243, 24.9.1996, p. 31).
36
Respectively, Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the
purposes of removal by air (OJ L 321, 6.12.2003, p. 26) and Council Directive 2003/86/EC of 22 September
2003 on the right to family reunification (OJ L 251, 3.10.2003, p. 12).
37
OJ C 82, 14.04.2007, p. 24.
38
Directive 98/30/EC Council Directive 76/914/EEC of 16 December 1976 on the minimum level of training
for some road transport drivers (OJ L 357, 29.12.1976, p. 36.).
39
OJ C 74, 25.03.2006, p. 12.
40
Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail
system (OJ L 235, 17.09.1996, p. 6).
41
OJ C 96, 22.04.2006, p. 7.
42
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are
long-term residents (OJ L 16, 23.01.2004, p. 44).
43
OJ C 69, 24.03.2007, p. 8.
44
Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic
communications networks and services (OJ L 249, 17.09.2002, p. 21).
45
Not yet reported.
46
Not yet reported.
47
Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council
Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive
2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European
conventional rail system (OJ L 164, 30.04.2004, p. 114).
48
Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service
and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ
L 108, 24.4.2002, p. 51).
49
Not yet reported.
50
See footnote 44.
51
OJ C 326, 30.12.2006, p. 27.
15
of ability and competence or attestations issued by the competent authorities in other Member
States in activities related to trade and distribution of toxic products and activities entailing
the professional use of such products52 (C-422/0653 and C-423/0654). Furthermore, in the
fourth case, it is alleged that Poland failed to establish a specific legal framework for granting
authorisations for the parallel import of plant protection products into its territory (C149/07).55 The Commission did not approve the obligation of the technical examination of
used imported vehicles before their registration in Poland (C-170/0756). The Court also
received a complaint in the infringement procedure against Poland on the Augustow and
Wasilkow highways (C-193/0757).58 Finally, in the last registered case (C-227/0759) the
Commission claims that Poland has failed to transpose correctly the provisions of the
directive 2002/19/EC, as Polish national rules infringed article 4(1) of the directive, imposing
a general duty to negotiate access on all market operators, whereas article 5(1) para 1 of the
directive was not transposed at all.60
The Commission brought to the Court the same number of cases against the Czech
Republic. The first two (C-46/0661), concerning the non-implementation of certain provisions
of the copyright and related rights directive62 and directive on assessment and management of
environmental noise63 (C-140/0664), have already been withdrawn from the register. The
following two alleged infringements, concerning the non-recognition of doctors'
qualifications65 (C-203/0666) and of the qualifications of dentists67 (C-204/0668) were
confirmed by a judgment on 18 January 200769.
52
The complaint is based on the non-notification of national transposition measures of the Council Directive
74/556/EEC of 4 June 1974 laying down detailed provisions concerning transitional measures relating to
activities, trade in and distribution of toxic products and activities entailing the professional use of such products
including activities of intermediaries (OJ L 307, 18.11.1974, p. 1) and Council Directive 74/557/EEC of 4 June
1974 on the attainment of freedom of establishment and freedom to provide services in respect of activities of
self- employed persons and of intermediaries engaging in the trade and distribution of toxic products (OJ L 307,
18.11.1974, p. 5).
53
OJ C 326, 30.12.2006, p. 28; On 1 June 2007 the case was removed from the register.
54
OJ C 326, 30.12.2006, p. 28.
55
(OJ C 129, 09.06.2007, p. 5); On 27 June 2007 the Commission notified the withdrawal of the case from the
register.
56
Not yet reported.
57
Not yet reported.
58
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and
flora (OJ L 206, 22.7.1992, p. 7).
59
Not yet reported.
60
Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and
interconnection of, electronic communications networks and associated facilities (OJ L 108, 24.4.2002, p. 7).
61
OJ C 74, 25.03.2006, p. 9.
62
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights of the information society (OJ L 167, 22.06.2001, p. 10).
63
Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the
assessment and management of environmental noise (OJ L 18, 18.07.2002, p. 1).
64
OJ C 108, 06.05.2006, p. 14.
65
Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual
recognition of their diplomas, certificates and other evidence of formal qualifications (OJ L 165, 7.07.1993, p.1).
66
OJ C 143, 17.06.2006, p. 28.
67
Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and
other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the
effective exercise of the right of establishment and freedom to provide services (OJ L 233, 24.08.1978, p. 1).
68
OJ C 143, 17.06.2006, p. 28.
69
OJ C 56, 10.03.2007, p. 11.
16
Another six cases are to be examined. They concern the non-transposition of
pharmaceutical directives70 (C-114 to 117/0771) and the directive on technical requirements
for blood and blood components (C-60/0772)73.
It is worth noting that the number of direct actions against the new Member States is
relatively small when compared with the permanent statistics’ “champions”. Between 2004
and 2006 Italy was unquestionably the leader (88 cases), followed by Greece (70),
Luxembourg (59) and France (43).74
Table 4.
Comparison of the number of direct actions against old and new Member States on each
75
stage of procedure between 01.01.2004 and 31.12.2006.
Year
2004
2005
2006
Stage of procedure LFN
RO ECJ LFN
RO
ECJ LFN
RO
ECJ
UE15
1182
453 202 1055
561
165
998
520
180
UE10 (incl. Poland 764 (49) 1 (1) 0 568 (58) 176 (18) 0 538 (75) 160 (21) 14 (2)
III.2. Direct actions against Institutions
A Member State can launch a direct action against the Commission, the Council, the
European Parliament and the European Central Bank if they fail to act (Article 232 TEC) or to
verify the legality of the legislative procedure (Article 230 TEC).76 The first situation is very
rare, in fact there has not been such a case for the last 3 years. The same is true of the action
for annulment, which happens only occasionally. In most cases a Member State lodges a
complaint for annulment if the legislation in question was not a subject of unanimity and the
applicant State was outvoted, if the act concerns decisions taken unilaterally by the institution,
or if the acts concern irregularities in the state aid.
70
Case C-114/07 concerns non-notification of the national transposition measures of the Directive 2004/24/EC
of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal
medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use
(OJ L 136, 30.04.2004, p. 85).
Case C-115/07 concerns non-notification of the national transposition measures of the Directive 2004/27/EC of
the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the
Community code relating to medicinal products for human use (OJ L 136, 30.04.2004, p. 34).
Case C-116/07 concerns non-notification of the national transposition measures of the Directive 2004/28/EC of
the European Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the
Community code relating to veterinary medicinal products (OJ L 136, 30.4.2004, p. 58).
Case C-117/07 concerns non-notification of the national transposition measures of the Commission Directive
2005/28/EC of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards
investigational medicinal products for human use, as well as the requirements for authorisation of the
manufacturing or importation of such products (OJ L 91, 9.04.2005, p. 13).
71
Not yet reported.
72
Not yet reported.
73
Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European
Parliament and of the Council as regards certain technical requirements for blood and blood components (OJ L
91, 30.03.2004, p. 25).
74
The number of direct actions against Member States was taken from the ECJ reports for 2004 - 2005 and data
for 2006 and 2007 from the ECJ webpage.
75
XXIVth annual Report on monitoring the application of Community law (2006), not yet reported.
76
Other bases for the Member States’ direct action against the Institutions (for example: art. 237, art. 235 TEC)
were omitted as irrelevant to the present analysis.
17
In 2004 the Member States' direct actions against the institutions equalled 11.42 %
(25) of all new direct actions (219)77, and in 2005 – 5% (9 out of 179)78. Most of them
concerned agriculture and fishery.
Table 5.
Comparison of the number of registered direct actions against the institutions lodged by
79
each Member State with the ECJ from 1.01.2004 to 30.06.2007.
2004
2005
2006
1st half of
2007
Austria
1
1
0
0
Total
2
Belgium
1
0
1
1
3
Denmark
0
0
1
0
1
Finland
1
0
2
0
3
Germany
0
1
0
0
1
Greece
2
0
1
1
4
Ireland
0
0
1
0
1
Italy
2
0
1
0
3
Netherlands
1
0
0
0
1
Poland
1
1
0
0
2
Spain
6
2
1
1
10
Sweden
1
2
0
0
3
United Kingdom
2
2
0
0
4
Member State
Poland as the only new Member State decided to bring before the ECJ an action for
annulment against an act issued by the Council and the European Parliament. In Case C273/04 Poland claims that the Court should declare null and void Article 1(5) of the Council
Decision 2004/281 (which constitutes the extension of the restricted scope of payments on the
new direct payments for farmers from the new Member States), challenging the decision’s
legal basis.80 The opinion of the Advocate General, not favourable to Poland’s case, was
pronounced on 21 June 2007 and the judgement was expected to be given in October 2007.
In Case C-460/05 Poland asks for annulment of regulations concerning the recognition
of professional qualifications of nurses and midwives. Poland claims that an essential
procedural requirement was breached by virtue of the inadequacy of the reasons given for the
wording of Article 33 (2) and 43(3) of the directive 2005/36.81 These articles set out separate
rules on the recognition of acquired rights which are to apply to the Polish qualifications of
77
The number 25 in relation to cases concerning actions for annulment lodged by Member States comes from the
ECJ annual report for 2004, p.176. According to the information coming from relevant issues of the OJ there
were only 18 such cases.
78
The ECJ annual report for 2005, p. 200.
79
The numbers come from the ECJ webpage and relevant issues of the OJ.
80
Council Decision of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech
Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the
Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of
the common agricultural policy (OJ L 93, 30.03.2004, p. 1).
81
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition
of professional qualifications (OJ L 255, 3.09.2005, p. 22).
18
nurses responsible for general care and midwives. They constitute a derogation from the rules
concerning the recognition of acquired rights which are in force with regard to the
qualifications obtained in other Member States. The hearing took place on 21 June 2007, but
eventually the Court dismissed the action in the judgement given on 17 July 2007.
Table 6.
Comparison of the number of cases brought by the Member States in the ECJ against the
82
institutions from 1.01.2004 to 30.06.2007, by domain.
No of cases
8
8
4
3
2
2
2
1
Domain
Agriculture
Fishery
Consumers and environment
Institutional law
State aid
Regional policy
Area of freedom, security and justice
Free movement of people
Transport
Budget
1
1
External relations
1
The Court of First Instance (CFI) has no competences to examine the direct actions
from the Institutions or Member States unless they are against the Commission. In 2004 there
were only 15 actions for failure to act, in 2005 - 9, and in 2006 - 4. Actions for annulment are
not very common either: in 2004 the Member States lodged 35 complaints, in 2005 - 15, and
in 2006 - 34. Since the accession, the new Member States have sued the Commission only 11
times.
Table 7.
82
83
Comparison of the number of direct actions lodged with the Court of First Instance
83
against the Commission by Member States from 1.01.2004 to 30.06.2007.
Member State
2004
Austria
Belgium
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Italy
2
1
0
0
1
0
2
3
5
4
0
0
2005
1
1
2
0
0
1
2
1
0
0
0
0
1st half of
2007
2006
0
0
0
0
1
0
0
2
4
2
1
16
0
1
0
1
0
0
0
1
3
2
1
7
The numbers come from the ECJ webpage and relevant issues of the OJ.
The numbers come from the ECJ webpage and relevant issues of the OJ.
19
Total
3
3
2
1
2
1
4
7
12
8
2
23
Ireland
Netherlands
Poland
Portugal
Slovakia
Spain
Sweden
United Kingdom
0
7
2
0
0
4
1
2
1
0
0
0
0
4
0
2
1
2
2
1
0
1
0
1
1
1
1
1
1
5
0
0
3
10
5
2
1
10
1
5
Owing to the limited scope of jurisdiction, Member States can submit cases to the CFI
challenging mainly the executive regulations of the Commission. They are the most active in
the field of agriculture (33) and state aid (14). Poland was the first new Member State to lodge
such a case. It claims that the CFI should declare partially invalid the regulation no 1972/2003
on the basis of the introduction of customs duties on agricultural products in the amount of a
customs rate applicable erga omnes and exceeding the level of customs rates in force during
the period prior to Poland's accession to the European Union, as well as the adoption of
measures altering the conditions defined in that Accession Treaty of the rules governing the
customs union and through the inclusion by the contested provision of products that are not
covered by the Common Agricultural Policy84 (T-257/0485). The second case was brought
against the regulation no 60/2004, which introduced transitional measures for the levy in the
sugar sector86 (T-258/0487). At the end of 2005 Poland sought invalidation of the regulation
no 1686/2005 which sets out the production levies and the coefficient for the additional levy
in the sugar sector for the 2004/05 marketing year with a view to covering the outstanding
balance of the overall loss. The disputed article of the regulation sets out different coefficients
for the additional levy for, on the one hand, the States constituting the Community prior to 1
May 2004 and, on the other hand, the new Member States88 (T-4/0689). In the last case Poland
seeks a declaration that the Commission’s decision recognising the merger of the banks
Unicredito Italiano SpA (UCI) and Bayerische Hypo- und Vereinsbank AG (HVB) as
compatible with the common market is invalid90 (T-41/0691).
Cyprus and Estonia followed the Polish example and challenged the regulation no
832/2005 setting out the acceptable sugar surpluses in the new Member States92 (T-316/05
and T-324/05 respectively93). Cyprus also claims invalidity of the regulation no 651/2005
84
Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in
respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus,
Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ L 293, 11.11.2003, p. 3).
85
OJ C 251, 9.10.2004, p. 20.
86
Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar
sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
Poland, Slovenia and Slovakia (OJ L 9, 15.01.2004, p. 8).
87
OJ C 251, 9.10.2004, p. 21.
88
Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the
coefficient for the additional levy in the sugar sector for the 2004/05 marketing year (OJ L 271, 15.10.2005, p.
12).
89
OJ C 74, 25.03.2006, p. 27.
90
Commission decision of 18 October 2005 in case COMP/M.3894.
91
OJ C 96, 22.4.2006, p. 17.
92
Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of
sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta,
Poland, Slovenia and Slovakia (OJ L 138, 1.06.2005, p. 3).
93
OJ C 271, 29.10.2005, p. 68 and OJ C 271, 29.10.2005, p. 24.
20
concerning sugar surpluses which existed before the accession94 (T-300/0595). In 2006
Hungary lodged its first complaint, demanding a partial invalidation of the regulation on
procedures for the taking-over of cereals by intervention agencies96, which during the
financial year introduced a new requirement for the weight of maize (T-310/0697).
In the first half of 2007 four new Member States launched a direct action against the
Commission. The first complaint was lodged by Slovakia against the Commission's decision
concerning the national allocation plan for the emissions allowances for greenhouse gases98
(T-32/0799). Subsequently, the decision relating to the allocation of emissions allowances for
greenhouse gases was challenged by Poland (T-183/07100), Hungary (T-221/07101) and the
Czech Republic (T-194/07102).
Among the old Member States, the most active group between 2004 and 2006 includes
Italy, Spain and Germany, who lodged 23, 14 and 12 complaints respectively, mainly in the
fields of regional policy, agriculture and state aid.
Table 8.
Comparison of the number of direct actions lodged at the Court of First Instance against
103
the Commission by Member States from 1.01.2004 to 30.06.2007 by domain
Domain
Agriculture
State aid
Regional policy
Consumers and environment
Fishery
Social policy
Institutional law
Transport
Budget
Commercial policy
Concurrence
Euroatom
Freedom of establishment
94
No of cases
33
14
13
10
3
2
2
2
2
2
1
1
1
Commission Regulation (EC) No 651/2005 of 28 April 2005 amending Regulation (EC) No 60/2004 laying
down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia,
Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ L 108, 29.04.2005, p. 3).
95
OJ C 271, 29.10.2005, p. 19.
96
Commission Regulation (EC) No 1572/2006 of 18 October 2006 amending Regulation (EC) No 824/2000
establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of
analysis for determining the quality of cereals (OJ L 290, 20.10.2006, p. 29).
97
OJ C 326, 30.12.2006, p. 64.
98
Communicated by Slovakia in accordance with the directive 2003/87/EC of the European Parliament and of
the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the
Community and amending Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).
99
OJ C 69, 24.03.2007, p. 29.
100
OJ C 155, 7.07.2007, p. 41.
101
Not yet reported.
102
Not yet reported.
103
The table is prepared on the basis of data from the ECJ webpage and relevant issues of the Official Journal.
Data for 7 cases registered in 2007 have not been reported yet.
21
In principle, direct actions – either based on Article 230 or on Article 232 TEC – are
seldom used by the Member States (see Tables 5 and 7). Yet some countries – like Poland –
seem to be less reluctant with regard to that instrument, which - in the long run – may become
a permanent element of such a Member State's litigation strategy.
It is true that a direct action against Institutions may be an efficient mean for a
Member State to achieve certain objectives, e.g. to demonstrate its negative attitude to the
recent developments in the Community law. Nonetheless, it seems that a decision on suing an
Institution before the ECJ in the pursuit of exclusively ‘propaganda’ aims will be treated as
the Member State’s last resort. Otherwise such a Member State risks being stigmatised as a
‘vexatious litigant’.
IV.
Conclusions
Although the gap between the judicial activity of EU15 and EU10 Member States in
the proceedings before the ECJ is still considerable, and the group of potential repeat players
does not comprise any of the new Member States yet, the situation is dynamic and may
change soon. The growing EU10 readiness to participate in the proceedings (in preliminary
ones in particular) implies that there are chances for those positive trends to be maintained.
Poland’s judicial activity especially provides grounds for cautious optimism, as it seems that
Poland is aspiring to a repeat player status in the proceedings before the ECJ – and aspiring
with some success.
New Member States should, however, take the necessary steps in order to increase
their influence on the case-law. As has already been signalled before, a clear and consistent
litigation policy is a must and priorities have to be predefined. Furthermore, new Member
States need to develop an efficient system of their interests’ representation before the Court.
Otherwise, EU10 Member States may gradually become classical one-shotters, taking part in
the litigation before the ECJ only if they are forced to do so and whose influence on the
evolution of the Community’s case-law would eventually be marginalised.
22