Time runs out for EU law-breakers

Date: 25/07/1996

By Ole Ryborg

THE European Commission is preparing to crack down on member states which fail to comply with European Court of Justice rulings by invoking its right to fine recalcitrant governments for the first time.

Belgium and Germany look set to be the first targets of the new approach as the Commission seeks to use the power granted to it under the Maastricht Treaty to fine countries which do not implement EU laws properly, in defiance of Court rulings.

The Commission has already singled out 37 cases against eight member states for possible proceedings.

Of these, five - involving Belgium and Germany - have been selected as test cases which are likely to go before the European Court of Justice (ECJ) in the autumn.

The Commission had been expected to start proceedings in all five cases, three of which concern the implementation of EU environmental legislation and two relating to the internal market, before the summer break. But with some of the details of how the rules should be applied still not settled, officials say a decision has been postponed until October.

The power to fine member states which fail to comply with ECJ judgements was introduced into EU law under Article 171 of the Maastricht Treaty.

But until now, it has never been used. The Commission has been reluctant to take action partly because the unclear language used in Article 171 left several key questions unanswered.

It does not clarify how the Commission should go about forcing a member state fined under the procedure to pay up and whether this should be done by requiring the government concerned to pay the money directly to the Commission or whether the Commission itself should deduct the penalty from hand-outs owing to the member state.

It also does not explain how the fine should be calculated and whether it should be repaid once the country involved has complied with the ECJ ruling in question.

The Commission's legal services have been struggling for some time to come up with clear cases which would allow the Commission to test the strength of its new weapon.

According to officials, the cases against Belgium and Germany have been chosen because they are relatively clear cut.

All five concern judgements from the ECJ given more than five years ago, allowing both countries ample time to comply with them. Both have also received several warnings from the Commission, which therefore feels it is justified in taking tougher action.

The move comes amid mounting criticism of the Commission for its failure to ensure a level playing-field in the single market by forcing member states to implement laws agreed at EU level fully at home.

Critics say that the laxer approach taken to infringements of Union law up until now is in stark contrast to the Commission's rigorous enforcement of EU competition law.

Article 171 can only be applied to cases in which a member state has already been found guilty by the Court of flouting EU laws, and has failed to act on the ECJ's ruling.

In such cases, the Commission must first decide whether to start proceedings. Once it has done so, it must then go to the ECJ and ask it to fix the size of the fine that the member state concerned must pay.

The eight countries facing the prospect of future Article 171 proceedings are Belgium (with ten cases pending), Greece (seven), Italy (six), France (five), Spain (4), Germany (three), Luxembourg (one) and the Netherlands (one).