Although the European Commission has improved the way it enforces EU law, it still takes too long to close infringement cases, according to a report published on Tuesday by the European Court of Auditors (ECA).
The Commission, as “the guardian of the Treaties”, is responsible for overseeing the application of EU law by Member States and taking action to enforce compliance. EU regulations apply automatically; directives require full “transposition” (incorporation) into national law. In both cases, Member States are responsible for implementation.
If breaches of EU are detected, the Commission has the power to initiate formal infringement procedures. More than 9000 infringement cases were opened between 2012 and 2023. They were initiated by the Commission or after petitions from the European Parliaments and complaints from citizens, businesses and interest groups.
The majority (over 80 %) of registered complaints are closed because a breach of EU law cannot be established, or the information provided is not sufficient to launch the infringement procedure. The number of complaints that are pursued shows a downward trend, falling from 854 in 2012 to 120 in 2023.
By policy area, most cases in recent years concerned environment law (17,1 %), followed by mobility and transport (15,2 %), justice and consumers (10 %), financial services (8,7 %), internal market (8,6 %) and energy (8,1 %).
“While the European Commission has improved its management to detect and correct infringements of EU law, it can still take years to rectify infringements,” said Lefteris Christoforou, the Cypriot ECA Member responsible for the audit and a former member of the European Parliament.
“Breaches of law must be remedied quicker to ensure equality and observance of EU common values and principles. Even though people and businesses have responsibilities stemming from EU legislation, they should be allowed to enjoy the benefits of commonly agreed rules without impediment, thus ensuring that their fundamental rights apply everywhere in the EU.”
The auditors carried out in an depth-assessment of a sample of 31 infringement cases and sent a questionnaire to 15 Directorates-General on their workload and used of resources. Surprisingly, the auditors did not find any correlation between time and workload. DGs CNECT (23 months, 147 cases), ENV (21, 1221 cases) and JUST (20, 512 cases) had the longest handling times of more than 20 months.
The main finding in the audit is that it is challenging for the Commission to improve the management of complaints and infringement cases in line with its own benchmarks. Although those benchmarks are not legally binding, the auditors consider it important for the Commission to report on public indicative benchmarks, as this would improve scrutiny.
It can take months to assess to assess the complaints and years to resolved cases. Average handling times can still be more than two years, when formal infringement procedures are in place. In some cases, Member States have not rectified breaches of EU law even if they have been subject to penalties for several years.
Four-phased infringement procedure
The infringement procedure consists of four phases - request for information in the form of a letter of formal notice, a reasoned opinion if the Member State's response is inadequate, referral to the European Court of Justice for a ruling and possible financial penalty calculated by the Commission if non-compliance persists after the court ruling.
According to the audit team, the Commission faces delays in all four phases with handling times often exceeding benchmarks. The ECA has criticized this as a systemic issue, suggesting reinforcing the management by monitoring progress in case-handling to identify potential bottlenecks and take proactive steps to address them.
Does the handling, time and outcome of infringement procedures depend on how they are initiated? Should the Commission be more proactive?
“Yes, they can differ depending on how the cases were initiated,” ECA Member Lefteris Christoforou told The Brussels Times. “Cases initiated through complaints or petitions could depend on prioritization, with criteria such as ‘serious damage to EU financial interests" and “systemic failure to enforce EU law’ which are generally treated as priorities. In 2017, the Commission updated its enforcement strategy and tried to focus on the most serious cases.
A significant number (16.5 %) of complaints were ineligible in 2012-23. If found eligible, registered complaints are further checked if they really constitute breach of EU law, which is time consuming. 95 % of complaints were closed in 2012-2023 because a breach of EU law cannot be established, or the information provided is not sufficient to launch the procedure.
What are the bottlenecks in the infringement procedure? The auditors identified a number of bottlenecks. The one-year benchmark from complaint registration to sending a letter of formal notice or closing the case was not met in almost 40 % of the cases. Another benchmark on shortening the handling time to nine months was not met in the majority of cases.
The complexity of cases requires thorough assessments and prolonging timelines, according to ECA. Resource allocation is also an issue because of insufficient planning for transposition checks of the legislation.
Commission’s response, no to benchmarking?
In its reply to the audit, the Commission accepted nine out of ten recommendations made by the ECA. It writes that it is committed to implementing the necessary changes to improve its performance in detecting potential infringements, in handling infringement cases and in monitoring on its enforcement action.
While acknowledging that timeliness remains a challenge and taking note of ECA’s conclusion that infringement cases take too long time to resolve, it did not accept one recommendation which could be crucial for improving the management of the infringement procedures - reporting annually on performance against all public indicative benchmarks.
According the Commission, the benchmarks are meant for internal use and are not strict targets. It believes “that it is essential to prioritise effectiveness and efficacy, which goes beyond quantitative benchmarks, as infringement cases can be multifaceted and require careful consideration, especially for cases where the necessary measures to ensure compliance with EU law may take a long time”.
That said, the Commission is currently reviewing its reporting requirements and exploring ways to enhance the transparency of its enforcement activities.
A Commission spokesperson clarified that the new Commissioners were asked in their mission letters to prepare an Annual Progress Report on Enforcement and Implementation of EU legislation. In parallel, the Commission plans to produce more user-friendly information and data on infringement cases online, on a continuous basis, to increase transparency of its enforcement action.
M. Apelblat
The Brussels Times
