Thursday, February 6, 2020

European union law Essay Example | Topics and Well Written Essays - 1750 words

European union law - Essay Example Moreover, the Commission can further rely on the provisions of Article 245 (ex 211) EEC as â€Å"guardians of the Treaty â€Å"and has to ensure proper application of Community law, in line with Article 245 of the TFEU3. However, the White Paper on European Governance published by the Commission in 2001 further highlights that the primary responsibility for the application of Community law lies with national administrations and courts in the Member States4. Therefore, the primary objective of enforcement of actions against Member States is to monitor compliance and respond to non-compliance. As such, the Commission aims to encourage voluntary compliance of the Member State5. Moreover, the underlying sentiment of the Commission’s strategic objectives for 2005-2009 is that vigorous pursuit of infringement actions under Article 258 are â€Å"considered critical to the credibility of European Legislation and the effectiveness of policies†6 Moreover, according to Article 2 58, Member States that fail to fulfil an obligation under the Treaty can be subject to the infringement procedure. The Article 258 procedure is provided to allow the Commission to pursue its task of policing the application and compliance with the Treaties and secondary Community law obligations7. In turn this has raised issues as to the extent of national court obligations to refer questions of Community law to the ECJ. This paper critically evaluates the parameters of the legal obligations of national judicial authorities to refer issues of community law to the ECJ with specific reference to the relevant treaty procedures and case law. Firstly, it is submitted that often the issue of reference is linked with infringement issues8 and in order for the infringement procedure to commence a breach of obligation by a Member State must be suspected by or brought to the attention of the Commission. A breach or failure to act is most often observed in the forms of a Member State failing to implement Community legislation9. Moreover, the Commission has taken several measures to adequately remedy problems encountered in the transposition, implementation and enforcement of directives in particular for example10. These include regular publication of calendar for transposition and annual reports to monitor the application of community law. Borissova further comments that: â€Å"By launching enforcement action against a Member State, the Commission is not asking the ECJ to recognise a Member’s State’s intention to breach the law but to deliver a declaratory judgment not the latter’s failure to comply with its Community obligations11†. However, Article 258 (ex 226) requires administrative procedural steps to be taken before court proceedings can be instituted. Article 258 further provides that â€Å"if the Commission considers that a Member State has failed to fulfil an obligation under this treaty, it shall deliver a reasoned opinion on the mat ter†. Having informed the Member State of its breach, the Commission gives the state the opportunity to answer the allegation or take corrective action prior to formal proceedings under Article 258, which in turn leaves significant discretion to member states and national courts to address issues of community law12. If the matter is not resolved informally in the first phase, then member state will be formally notified of the alleged infringement by means of a

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