“Member State v Member State” and other peculiarities of EU Law
The European Union prides itself for being based on the rule of law. Indeed, the success and longevity of the EU as an integration project can be partly explained by, on the one hand, the willingness of Member States to abide by the obligations that stem from the Treaties and, on the other, the resilience of the EU itself in the face of non-compliance by Member States. Aberrant behaviour does not stop it from functioning.
When a Member State fails to fulfil its obligations, it is normally the Commission that initiates the infringement procedure of Article 258 TFEU. Between 2002 and 2018, the Court of Justice ruled in 1418 cases of infringement brought by the Commission and found against Member States in 1285 cases. In other words the success rate of the Commission is a staggering 91%. This raises the intriguing question which many papers in the literature have tried to answer but as yet no one has provided a convincing explanation: Why do Member States persist all the way to the Court if statistically the odds are overwhelmingly against them?
A very recent judgment has highlighted another intriguing aspect of the enforcement of EU law. It is extremely rare for a Member State to take action against another Member State. Perhaps Member States do not do it because they can rely on the Commission to do it on their behalf. But the Commission is not obliged to launch the infringement procedure. This is another issue discussed in the literature without arriving at a satisfactory answer: What determines the decision of the Commission to start infringement proceedings?
The Treaty does empower Member States to seek redress before the Court of Justice. Article 259 TFEU specifically provides that a “Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.”
Yet, so far there have been only eight cases in the history of the EU involving action by one Member State against another. Of these eight cases, five have been adjudicated by the Court of Justice, one is pending while the remaining two were withdrawn.
The five judgments were delivered in the following cases:
- France v United Kingdom, C-141/78, October 1979: Fisheries dispute.
- Belgium v Spain, C-388/95, May 2000: Designation of origin of wine.
- Spain v UK, C-145/04, September 2006: Eligibility to vote in EP elections in Gibraltar.
- Hungary v Slovakia, C-364/10, October 2012: Refusal to allow entry to President of Hungary.
- Austria v Germany, C-591/17, June 2019: Passenger car vignette.
The pending case is Slovenia v Croatia, C-457/18, concerning a maritime border dispute.
The most recent case concerned action brought by Austria against Germany, objecting to the intention of Germany to require all cars operating on German roads to pay an annual vignette [or road use tax] of about EUR 130. Although Member States are free to decide whether to levy such taxes, the Court of Justice found on 18 June 2019, contrary to the opinion of the Advocate-General, that the measure would have discriminated against drivers from other Member States because Germany also intended to relieve owners of cars registered in Germany of an equivalent amount that would have been deducted from the motor vehicle tax.