The application of EU Law. Italy and the infringement procedure

The application of EU Law Italy and the infringement

procedure

May 2014

The European Commission is tasked with monitoring Member States’ efforts to ensure that their legislation complies with EU law. The Commission is responsible for ensuring that Member States fulfil their obligations under EU Law. The most important obligations are: !   transposition of EU Directives; !   compliance with EU Regulations; !   compliance with norms in Treaties; !   implementation and compliance with the judgements of the

Court and the European Court of Justice. When a Member State does not apply EU Law, the Commission can launch an    

infringement procedure vis-à-vis the State which fails to comply.

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Member States and the application of EU Law

The  infringement procedure:    !   is a formal procedure launched by the European Commission

under Article 258 of the Treaty on the Functioning of the European Union (TFEU) “if the Commission considers that a Member State has failed to fulfil an obligation under the Treaties…”;

!   is an administrative, pre-litigation procedure to enable the Member State to conform voluntarily with EU law.

   An infringement procedure may also be initiated due to violation of other provisions of EU Law, for example restrictions to free competition (arts. 101, 102 and 106 TFEU). If the State in question does not conform to the Commission’s requests, the latter can launch the litigation phase and refer the case to the European Court of Justice.    

What’s the infringement procedure?

Non-compliance of a Member State consists of an action or omission which infringes EU Law. A Member State can be non-compliant if it does or does not do something. A State is considered to have failed to comply irrespective of the authority – central, regional or local – to which non-compliance is attributable.

Nota Bene violations which can trigger an infringement procedure

do not include violations of obligations under the Stability and Growth Pact  (for which the excessive deficit procedure is

envisaged), or violations of the European Convention on Human Rights and Fundamental Freedoms.

How does the infringement procedure work

Every year the European Commission publishes a report on the application of EU Law by Member States based on its own continuous monitoring process. The Commission has recently published the “30th Annual Report on monitoring the application of EU Law” (2012) in which it reviews the performance of Member States regarding the application of EU Law.    

Do Member States really respect EU Law?

1,343 infringement procedures were open at the end of 2012 compared to 1,775 cases in 2011. Since 2009, there has been an annual decrease in the number of open infringement procedures. The policy areas with the most infringements in 2012 were:

The European Commission Report (2012)

20%  

15%  

14%  

38%  

13%  

Environment  

Transports  

Taxation  

Other policies

Internal Market

% out of the open infringement procedures

The virtuous and the defaulters

Belgio 91

Lituania 22

Estonia 22

Italy was the Member State with the most infringements in 2012.      

“Sorry for the delay”: transposition of EU Directives

Italia 99

Spagna 92

Belgio 91

Lettonia 20

Lituania 22

Estonia 22

Unlike EU Regulations which are directly applicable, European Union Directives have to be transposed to enter into force. !   If a Member State does not transpose a EU Directive in time,

the Commission can launch an infringement procedure. !   In 2012, 56 directives had to be transposed. Late

transposition gave rise to 447 infringement procedures, or 33.2% of the total. In 2011, the percentage was 66.7%.

!   The Member States with the highest number of open procedures for late transposition at the end of 2012 were Belgium and Poland (34 procedures). The one with the lowest number of open procedures was the Netherlands (6 open procedures).

Since transposition of Directives is very important to establish uniform EU Law within the European Union, reducing late transposition is a priority for the European Commission.

Italy is the Member State with the largest number of open infringement procedures at the end of 2012: !   in 2012 alone, the European Commission launched 58

infringement procedures against Italy, of which 36 for late transposition of EU Directives (19 were closed before year’s end);

!   a total of 99 procedures were still open at the end of 2012. No other EU Member State had more than Italy;

!   17 of the 99 procedures were due to late transposition of several Directives (17.1% of the total).

No other EU Member State

had more than Italy

Nessuno Stato Membro ha fatto peggio.

Italy: by no means an enviable record

25% of the infringements by Italy involve the Environment.

Italy: open procedures in 2012

25%  

12%  

9%  

44%  

9%  

Environment  

Internal Market

Taxation  

Other policies

Transports

% the total number of

infringement procedures open

The most important procedures launched against Italy

20%  

In 2012 Italy was referred to the EU Court of Justice (litigation phase) in 3 cases (4 in 2011): !   non-compliance with Directive 2002/91/EC regarding the

energy efficiency of buildings. Italian regulations do not conform to the provisions regarding energy performance certificates. Furthermore, Italian Authorities have not communicated the measures relating to inspections of air-conditioning systems;

!   non-adoption of measures to update national rules in order to implement EU legislation regarding collective redundancies. Directive 98/59/EC, not respected by Italy, obliges employers contemplating collective redundancies to consult with workers’ representatives with a view to reaching an agreement;

!   “significant and persistent shortcomings” in the application of EU legislation regarding the treatment of urban waste waters. Since 1998, Directive 91/271/EEC obliges States to create suitable collection and treatment systems for waste water from agglomerations with more than 10,000 inhabitants.

Referrals of Italy to the EU Court of Justice

In 2012 – at the end of procedures launched during previous years – the Court of Justice passed the following judgements convicting Italy:

!   case n. C-565/10: inadequate   urban waste water treatment in violation of Directive 91/271/EEC. Italy has not adopted the provisions required to equip a large number of urban agglomerations with sewage networks for the collection and treatment of urban waste water;

!   case C-68/11: excessive PM10 (fine particles) concentrations in 55 areas and urban agglomerations during 2006 and 2007 in violation of Directive 1999/30/EC.

Convictions by the EU Court of Justice

In the Government’s Report on Italy’s Participation in the EU in 2013, it emphasised how at the end of 2012 it had:

achieved the goal it had set itself: to reduce the infringement procedures to less than 100

for the first time in over 15 years. In that same document, the Government stated that: !   a further reduction in infringement procedures in 2013 was

a “priority goal”; !   the application of Law n.234/2012 (participation by Italy in

the application and elaboration of EU Law) would have had “very positive effects” on the reduction of the number of open infringement procedures regarding late transposition of Directives.

What is the Italian Government doing?

In the Report on Italy’s Participation in the EU in 2014, with statistics referring to 2013 (EU official statistics for 2013 are still not out), the Government states that:

!   on 31 December 2013, there are 104 open infringement procedures against Italy, of which 24 for late transposition of new EU rules into national legislation;

!   Italy continues to be the last amongst all the Member States with regard to compliance to EU Law.  

Despite all the above, the Government has provided reassurance that:      

“reduction of infringement procedures against Italy must be a priority goal”.

2013: the last will be the last… again!