Article 260(2) TFEU: An Effective Judicial Procedure for the Enforcement of Judgements?

• Published date: 01 May 2013
• Author: Brian Jack
• Date: 01 May 2013
• DOI: http://doi.org/10.1111/eulj.12030

Article 260(2) TFEU: An Effective

Judicial Procedure for the Enforcement

of Judgements?

Brian Jack*

Abstract: Article 260(2) TFEU (ex 228(2) EC) enables the European Court of Justice

to enforce compliance with its judgements. This article analyses its use in doing so and

questions whether it could be applied more effectively. It commences by highlighting the

principally economic and environmental context of the case-law, and by examining the

initiatives taken to tackle delays in bringing these cases before the Court. The article

then critically evaluates the effectiveness of the financial sanctions available to the Court.

In doing so, it aims to fill a gap in present research by looking beyond the procedural

measures through which the Court and the Commission operate to examine the practical

impact of Article 260(2) itself.

I Introduction

The effectiveness of the EU law has often been undermined by poor implementation

and enforcement at the national level. As far back as 1992, the chair of the European

Parliament’s environment committee warned that ‘if we do not tackle implementation

and enforcement properly there seems little point in producing new environmental

law.’1Equally, at that time, Snyder noted that the EU faced the ‘new challenge of

compliance.’2The Commission has given a commitment to take up this challenge.3In

the past, however, its ability to do so was hampered by the absence of any mechanism

to enforce Member State compliance with Court judgements. This longstanding

vacuum was filled by the Treaty on European Union, which gave the Commission

discretion to bring non-compliant Member States back before the Court, where

* Lecturer in Law, Queen’s University, Belfast.

1K. Collins MEP, in evidence to the House of Lords European Communities Committee, 9th Report,

‘The Implementation and Enforcement of Environmental Legislation’, Session 1991–92, HL Paper 53-1,

19.

2F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Tech-

niques’, (1993) 56 Modern Law Review 19, 22.

3Commission Communication, ‘White Paper on European Governance’, COM(2001)428 final, Commis-

sion communication, ‘Better Monitoring of the Application of Community Law’, COM(2002)725

final/4, and Commission communication, ‘A Europe of Results-Applying Community Law’,

COM(2007)502 final.

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European Law Journal, Vol. 19, No. 3, May 2013, pp. 404–421.

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financial penalties could then be imposed.4This is now set out in Article 260(2)

TFEU.

This article analyses the impact that Article 260(2) has had in securing Member

State compliance with Court judgements. It commences by highlighting the princi-

pally economic and environmental context of the case-law, and by examining the

initiatives taken to tackle delays in bringing these cases before the Court. The article

then critically evaluates the effectiveness of the financial sanctions available to the

Court. In doing so, it aims to fill a gap in present research by looking beyond the

procedural measures through which the Court and the Commission operate to

examine the practical impact of Article 260(2) itself.

II Article 260(2) TFEU

Fourteen cases have now come before the Court under Article 260(2), with the Court

imposing financial penalties, whether a penalty payment, a lump sum penalty or both,

in eleven. Perhaps unsurprisingly, given its prominent position in the EU law, an

examination of these 14 cases reveals predominant concern with economic issues.

Equally, they also reveal Member State reluctance to comply with judgements con-

cerning EU environmental law. This reflects the expense often associated with apply-

ing and enforcing EU law in this area. All but one involved non-compliance with

judgements in these areas. In relation to economic issues, the judgements dealt vari-

ously with failures in the harmonisation of national laws,5the recovery of illegal state

aid,6public procurement,7and barriers to trade impeding the free movement of goods

and services or the freedom of establishment.8The one case not directly associated

with environmental or economic issues concerned Greece’s failure to comply with a

judgement establishing that it had not transposed Council Directive 2004/80/EC on

compensating the victims of crime.9Even here, the Court noted that Greece’s failure

had potential economic consequences, in discouraging the free movement of per-

sons.10 Overall, the case-law illustrates national self-interest at work. As empirical

research has shown, non-compliance results from a range of economic and political

factors.11 In particular, Article 260(2) must persuade Member States to implement

measures that create greater competition for national operators or result in significant

financial costs, for example in achieving the EU’s environmental objectives.

In practice, the evidence of Article 260(2)’s impact upon Member States appears

mixed. There may have been only 14 cases before the Court. However, at the end of

2009, the Commission’s Environment Directorate General alone was pursuing 61

4For criticism of this discretion, see A. Bonnie, ‘Commission Discretion Under Article 171(2) EC [now

Article 260(2) TFEU]’, (1998) 23 European Law Review 537.

5See Case C-121/07, Commission v France [2008] ECR I-9159.

6See Case C-369/07, Commission v Greece [2009] ECR I-5703 and Case C-496/09, Commission v Italy,

nyr.

7See Case C-70/06, Commission v Portugal [2008] ECR I-1.

8See, variously, Case C-121/07, Commission v France, cited n 5 supra, Case C-109/08, Commission v

Greece [2009] ECR I-4657 and Case C-568/07, Commission v Greece [2009] ECR I-4505.

9See Case C-407/09, Commission v Greece, [2011] ECR I-2467.

10 ibid,at38.

11 See G. Falkner, O. Treib, M. Hartlapp and S. Leiter, Complying with Europe: EU Harmonisation and

Soft Law in the Member States (Cambridge University Press, 2005), Chapter 14, ‘Why do Member

States Fail to Comply?’

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