What is Article 258

Infringement proceedings, Art. 258 II TFEU

Proceedings in European law, schemes for infringement proceedings according to Art. 258 II TFEU, supervisory action


This article deals with the infringement procedure in the form of the Commission's supervisory action. In addition, there are infringement proceedings in European law in the form of the state action, the annulment action, the failure to act action and the preliminary ruling procedure.

The supervisory action is briefly presented below and processed in more detail using an audit scheme.

A. The procedure under Art. 258 TFEU in general:

The procedure under Art. 258 TFEU enables the Commission to appeal to the ECJ if it is of the opinion that a member state has breached an obligation under the Treaties, Art. 260 I TFEU.

A breach of contract is generally understood to mean that a standard under Union law has not been applied or has been applied incorrectly. Primary and secondary Union law are covered equally.

The infringement procedure is therefore an action for declaratory judgment. This serves to fulfill the Commission's task of ensuring that the Treaties and secondary law are applied. The Commission acts as the “guardian of the Treaties”.

The consequence of the infringement procedure is always a declaratory judgment: the Member State is required to remedy the infringement, see Art. 260 I TFEU. The relevant enforcement options are regulated in Art. 260 II TFEU.

B. Test scheme:

I. Admissibility of the action

(1.) Legal process - Attention: preliminary mental examination!

The legal process to the ECJ is opened in accordance with Art. 19 III TEU in conjunction with Art. 258 II TFEU if a violation of EU law is complained about. In this respect, the principle of limited individual authorization generally applicable in European law, Art. 19 III TEU, applies. See in particular Art. 19 III lit. c TEU: “in all cases provided for in the treaties”. In European law, however, the opening of the legal process is not included in the report, it only serves as a preliminary mental examination and does not constitute a separate examination point!

1. Material jurisdiction

The CJEU is solely responsible for the infringement proceedings, there is no assignment to the CJEU or a specialized court, see Art. 256 I TFEU (principle of special jurisdiction).

2. Ability to participate / ability to participate

The Commission is actively involved in the case of Art. 258 II TFEU. Active party ability means the ability to sue in court.

The member state that is accused of violating Union law is passively party to party. Passive party ability means the ability to be sued in court.

3. Preliminary proceedings

It is necessary that the Member State concerned is given the opportunity to comment on the allegations in advance as part of a so-called preliminary procedure. The preliminary proceedings are an indispensable prerequisite for legal action, see Art. 258 I TFEU. The only exceptions are Art. 108 II subparagraph 2 TFEU, 114 IX TFEU, 348 II TFEU, only in these constellations a direct appeal to the ECJ by the Commission is permissible. The aim of the preliminary proceedings is an amicable settlement of the dispute before the ECJ is called upon.

The preliminary procedure is divided into three sections:

a) Letter of reminders

The preliminary proceedings begin with the Commission giving the member state the opportunity to comment on every breach of contract, Art. 258 I a.E. TFEU. This is usually done with an initial warning letter from the Commission. It contains the following components:

aa) Specification of the violation, stating the norm that may have been violated

bb) Announcement of the initiation of the infringement proceedings

cc) Request to comment on the allegations within a certain period. The deadline is usually two months. The member state is not obliged to comply with this.

b) Opinion

After the deadline for submitting comments, the Commission issues a reasoned opinion if it is still convinced of a breach of contract, see Art 258 I TFEU. The aim of the reasoned opinion is to give the Member State the last opportunity to remedy the infringement by restoring lawful conditions. The reasoned statement includes:

aa) Legal assessment and presentation of the facts and reasons for the violation, including evidence.

bb) However, no expansion of the subject matter of the dispute compared to the first warning letter, as otherwise there would be a violation of the legal hearing of the member state.

cc) Another deadline to remedy the breach of contract. Here, too, the period is usually two months.

c) Unsuccessful expiry of the deadline

If the member state does not remedy the violation within the set deadline, the Commission can appeal to the ECJ, Art. 258 II TFEU. Subsequent filing of the action is then not bound to any deadline.

4. Subject matter of action

The subject of the action consists of violations of primary and secondary Union law. It must correspond to the subject of the dispute in the form as it was determined in the preliminary proceedings. Widening the breach would render the action inadmissible.

5. Interest in legal protection

The Commission has privileged legal standing to bring infringement proceedings. It takes its authorization to do so from Art. 17 I p. 1 and 3 TEU. In the opinion of the ECJ and the prevailing literature, the bringing of the action is therefore at the discretion of the Commission; an objectively possible breach of contract is sufficient in this regard. Another view provides that the Commission must bring an action. The following requirements must be met in any case:

aa) Convince the Commission of the breach of contract

bb) The Member State does not remedy the breach of the infringement after the deadline set in the preliminary proceedings or after an action has been brought.

cc) If the violation has already been remedied, the Commission must have a continuing interest in establishing the violation. With regard to the declaratory interest, the case groups designed analogously for a continuation action according to § 113 I S. 4 VwGO can be used: This is usually to be answered in the affirmative if there is a risk of repetition, the legal questions raised are of considerable importance or if the conviction of the Member State may be a prerequisite for liability claims (e.g. in the context of a state liability claim).

II. Substance of the action

The action is well founded if the alleged violation of Union law actually exists. This is the case if the alleged facts are correct, can be attributed to the Member State and a violation of primary or secondary law of the Union can be established and there are no grounds for justification.

Of particular importance in this regard are violations of the fundamental freedoms or of the duty to timely and properly implement guidelines.