The infringement procedure

The infringement procedure is, simply put, exactly what the term indicates; a procedure available to the European Commission to ensure that all Member States correctly apply European Union Law.

It is a procedure regulated in Articles 258 to 260 of the Treaty on the Functioning of the European Union, with certain peculiarities that we shall examine later.

In brief, Article 258 establishes the starting point through a reasoned opinion after giving the State the opportunity to submit its observations, and provides for recourse to the Court of Justice of the European Union.

Article 259 is somewhat longer and also develops the rights that States have between themselves; that is, regarding breaches that may occur if, for example, a Member State fails to fulfil one of its obligations under the Treaties. However, this requires prior intervention by the European Commission, acting as a sort of mediator, which will also issue an opinion after hearing the States concerned. In the absence of such an opinion, the path to the CJEU would be directly opened.

Article 260, in very general terms, addresses the phase of declaring non-compliance, determining the consequences once it has been established and declared.

In principle, there are two official ways to initiate infringement proceedings: i) ex officio by the European Commission; or ii) through a complaint lodged by any individual or legal person. We should remember that Article 17.1 of the Treaty on European Union grants the European Commission the role of guardian of the treaties: «The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties [...]».

Based on the treaties and publicly available material, three phases can be distinguished: i) initial detection phase; ii) a second phase, which would include structured dialogue; and iii) a third phase, which could be subdivided into pre-litigation and litigation phases.

As mentioned, this is a unique procedure that differs from judicial pronouncements as might be expected, because the European Commission will not be competent to deal with cases against acts of private bodies or individuals where national authorities are not involved, to substitute public bodies in their decisions, or to offer compensation for damages, among other assumptions.

One of the mechanisms for citizen participation in European life is precisely through complaints, as we are all, although we may not believe it, exposed to European Union law every day. It is more common than it seems, and we can see this in the infringement search engine. In fact, Spain —among other countries— has been called to attention (through a reasoned opinion) by the European Commission just a few days ago, specifically for deficiencies in the transposition of Directive (EU) 2023/2413.