Tracker 6 - Infringement procedures

Contact: cristina.leal@cullen-international.com

Latest ref.
CI

The Lisbon Treaty, which entered into force on December 1, 2009, introduced two important changes to the
rules on infringement procedures (see EU Telecom Flash 113/2009).

Short
summary

If an EU Member State does not fulfil its obligation to implement Community law correctly, the Commission
may launch an infringement procedure and ultimately take that Member State to the European Court of
Justice (ECJ).
Such non-compliance can take the form of incorrect or late transposition of a directive, or any other incorrect
implementation of EC law.
A great deal of flexibility in the initiation and pursuit of infringement procedures is left to the Commission. The
Court has acknowledged the Commission's power to decide at its own discretion when to commence an
action.
The Lisbon Treaty has introduced two changes to the infringement procedure:
non-communication of transposition measures: the Commission can propose fines already in the first
referral to the ECJ (under the former treaty, a financial penalty could only be imposed after the Member
State had failed to implement the ECJ ruling)
non-compliance with ECJ ruling: if a Member State does not comply with the ruling, the Commission is
only required to go through one administrative phase (letter of formal notice). A second reason opinion is
no longer required.
The cases listed under the Milestones below relate to the infringement procedures for incorrect
implementation of the EU regulatory framework for electronic communications and of the EU Data Retention
Directive.

Legal
basis

Articles 258, 259 and 260 of the Treaty on the Functioning of the EU (TFEU), ex articles 226, 227 and 228 of
the EC Treaty.

Key
provisions

Step 1: Reminder letter

Preliminary step used by the Commission to try to avoid formal action (not part of the official procedure).
Reminds the Member State of the alleged failure to fulfil its obligations under EC law and specifies what
measures should be taken to remedy the situation.
If no reply or an unsatisfactory reply is received, the Commission may at any time move on to the next step.
Step 2: Letter of formal notice
First official step of the procedure.
The Commission sends the Member State an initial legal assessment through a letter of formal notice, and
invites the Member State to present its views on the facts within a given time limit.
Step 3: Reasoned opinion
If no reply or an unconvincing reply is received, the Commission adopts a reasoned opinion requiring the
Member State to stop the infringement within a specified time limit.
The reasoned opinion must give a coherent and detailed statement of the reasons that have led the
Commission to conclude that the Member State has failed to fulfil one or more of its obligations under the
Treaties or secondary legislation.
Step 4: Court of Justice (ECJ)
If the Member State fails to respond within the period laid down by the Commission (in practice, several
months), or if the Member States observations in reply cannot be considered satisfactory, the Commission
can refer the case to the ECJ. The referral by the Commission to the ECJ opens the litigation procedure.
The Commission can immediately propose pecuniary sanctions when referring a Member State to the ECJ
for failure to notify transposition measures.
Step 5: Failure to comply with ECJ judgement
Following the ECJ judgement, if the Commission considers that a Member State has not complied with the
ruling, it may decide to send a letter of formal notice to the Member State with a time limit for
implementation of measures to comply with the judgement.
If this limit is exceeded, the Member State can be taken to court for a second time and fined. The
Commission proposes financial sanctions which it considers appropriate:
penalty payment (by day of delay after the delivery of the judgment) and/or

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a lump sum (penalising the continuation of the infringement between the first judgment on noncompliance and the second judgment).
The final decision on the financial sanctions lies with the ECJ.
Milestones
Country

Issue

Step

Sources/Dates

AT

Non-transposition of the Data

Retention Directive

Referral to the ECJ

Apr. 2009

BE

Universal service (USO) funding

Referral to the ECJ

Jan. 31, 2008

Must carry rules (Brussels Region)

Referral to the ECJ

Oct. 8, 2009

Failure to implement fixed number

portability

Letter of formal notice

May 14, 2009

Non-implementation of Decisions
2005/928/EC and 2008/673/EC on
spectrum harmonisation

Letter of formal notice

Jan. 28, 2010

CY

Rights of way (mobile networks)

ECJ ruling (C-125/09)

April 2, 2009

DE

Regulatory holidays

Lack of notification of mobile

termination rates

Letter of formal notice

June 25, 2009

Non-implementation of Decision
2008/477/EC on 2.6 GHz spectrum
harmonisation

Letter of formal notice

Oct. 29, 2009

ES

Telecom tax to finance public

service TV

Letter of formal notice

March 18, 2010

FR

Taxation of operators of electronic

communications for financing of the
national public broadcasters

Letter of formal notice

Jan. 28, 2010

GR

Non-transposition of the Data

Retention Directive

ECJ ruling (C-211/09)

Nov. 26, 2009

IE

Non-transposition of the Data

Retention Directive

ECJ ruling (C-202/09)

Nov. 26, 2009

IT

Unavailability of caller location

information for 112

Use of databases for marketing

purposes

Independence of NRA

BG

LV

New

ECJ ruling (C-424/07): Dec. 3,

2009 (see EU Telecom Flash
112/2009)
Opinion of the Advocate General:
April 23, 2009 (see EU Telecom
Flash 48/2009)

Second reasoned opinion: Nov.

20, 2009
Second letter of formal notice:
May 14, 2009
ECJ ruling (C-539/07): Jan. 15,
2009
Letter of formal notice
Jan. 28, 2010
Complementary letter of formal
notice: March 18, 2010
Reasoned opinion: April, 14 2009

Administrative charges for radio

spectrum

Letter of formal notice

June 25, 2009

LT

Independence of NRA (effective

separation between regulatory and
ownership functions)

Letter for formal notice

June 25, 2009

NL

Non-transposition of the Data

Retention Directive

Referral to the ECJ (C-192/09)

May 28, 2009
(in the meantime, transposition rules

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of the Directive in force since Sep. 1,

2009)
PL

Non-conformity with the Framework

Directive (definition of subscribers)

Setting of prices in wholesale

telecom markets, using any
methodology, independently of an
imposed cost-orientation or cost
accounting obligation

Letter of formal notice

March 18, 2010

Broadband retail regulation (without

market review)

Referral to the ECJ

Sep. 18, 2008

Non-transposition of the Data

Retention Directive

Referral to the ECJ: April 2009

(Transposition of the Directive through
amendments to the
Telecommunications Law published
on April 24, 2009. See CEE Telecom
Update June 2009).

Designation of USO provider

Referral to the ECJ

Jan. 29, 2009

Lack of comprehensive directory

and telephone directory enquiry
services

Second letter of formal notice:

June 25, 2009
ECJ ruling (C-458-07): March 12,
2009

Independence of NRA (dismissal of

NRAs chairman)

Letter of formal notice

Jan. 29, 2009

Separation of government
ownership functions and regulatory
functions

Letter of formal notice

Oct. 29, 2009

SK

Independence of NRA

Letter of formal notice

May 4, 2009

SI

Independence of NRA

Letter of formal notice

March 18, 2010

SE

Dispute settlement powers of

Swedish NRA

Letter of formal notice

Sep. 18, 2008

Non-transposition of the Data

Retention Directive

ECJ ruling (C-185/09)

Feb. 4, 2010

Application of EU rules on
confidentiality of Communications
(Phorm)

Reasoned opinion
Oct. 29, 2009

PT

RO

UK

Second letter of formal notice:

Oct. 29, 2009
ECJ ruling: (C-492/07): Jan. 22,
2009

A list of infringement procedures for incorrect implementation of the EU regulatory framework for electronic
communications can be found on the Commission website (last updated on January 28, 2010).
Contacts

European Commission officials: Wolf-Dietrich Grussmann (DG Information Society Unit B.3) and Jacques
Verraes (Justice Freedom & Security DG)

Cullen International April 2010