EC decisions on infringements DATABASE : ACTIVE INFRINGEMENTS
ec Contacts for media
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Natasha BERTAUD +32 2 296 74 56 natasha.bertaud@ec.europa.eu
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Maya ANGELOVA +32 2 296 27 63 maya.angelova@ec.europa.eu
EU Pilot, is a tool that can be used where it is likely to lead to swifter compliance than a formal infringement procedure. It allows the Commission to resolve a number of cases at the EU Pilot stage without the need to move to an infringement procedure
The primary purpose of the ec infringement procedure, is to ensure that the Member States give effect to EU law in the general interest WPI….and not individual ints: On EU level, an alternative for individual redress in cross-border situations can be the SOLVIT network.
If a Member State fails to ensure compliance with EU law, the Commission may then decide to refer the Member State to the Court of Justice of the European Union
the Commission may request the Court to impose financial sanctions on the Member State
COCOO WILL THREATEN MEMBERS WITH REPORTING A POT.INFRINGEMENT, TO THE EC COLLEGE OF COMMISSIONERS
There are four main types of infringements of EU law:
- failure to notify: a Member State does not notify the Commission on time of its measures to turn a directive into national law;
- non-conformity: the Commission considers that a Member State’s law are not in line with the requirements of EU directives;
- infringement of the treaties, regulations or decisions: the Commission considers that a Member State’s laws are not in line with the requirements of the treaties, EU regulations or decisions;
- incorrect application: EU law is not applied correctly, or not applied at all, by national authorities.
https://eur-lex.europa.eu/collection/n-law/mne.html = members TRANSPOSITIONS
The Commission assesses for each directive whether the transposition by Member States is on time, complete (completeness check) and correct (conformity check)..For the Commission to understand how Member States transpose directives, they need to provide explanatory documents
What is an infringement package?:
The decision to open infringement proceedings or to take a next step in these proceedings against a Member State is taken by the College of Commissioners. This decision is based on the legal analysis conducted by the Commission services, based on the documents and information submitted by the Member States, the Commission services or complainants….The Commission receives numerous complaints from individuals and bodies, pointing to a breach of EU law. It also receives many petitions relating to EU law, forwarded by the Petitions Committee of the European Parliament. Even if the Commission cannot and does not investigate every single possible misapplication of EU law, it continues to value complaints, written questions and petitions as a source of information in broader cases related to systemic or structural breaches of EU law in Member States.
Commission urges SPAIN to transpose the Sustainability Factors Directive into national law
Today, the European Commission decided to send a reasoned opinion to Spain (INFR(2022)0356) for failing to notify measures for the transposition into national law of the Sustainability Factors Directive (Directive (EU) 2021/1269). Spain has failed to transpose the Directive by the deadline of 21 August 2022. The Directive is part of the ‘Financing Sustainable Growth’ Action Plan by the Commission. One of the plan’s objectives is to reorient capital flows towards sustainable investments to achieve sustainable and inclusive growth. The Directive clarifies the need for sustainability factors and sustainability related objectives to be taken into account in the product governance and oversight process of investment firms manufacturing financial instruments and their distributors. Spain has now two months to reply and take the necessary measures. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union
Anti-Money Laundering: Commission urges SPAIN and ITALY to apply correctly the Anti-Money Laundering Directive: The Commission has today, JAN 2023, sent letters of formal notice to Spain (INFR(2022)2151) and Italy (INFR(2022)2150) on grounds of their incorrect application of the Anti-Money Laundering Directive (4thAML as amended by 5thAML). These Member States had notified a complete transposition of the Directive. Nevertheless, the Commission has identified several instances of incorrect application of the Directive, which refer to the functioning of one of its keystones: the setting up of the central beneficial ownership registers. Enhancing transparency is fundamental to combat the misuse of legal entities. Member States have to ensure that information about the real owners of these legal entities (their beneficial owners) is stored in a central register. Member States can, for that purpose, use a central database which collects beneficial ownership information, or the business register, or another central register. Confidence in financial markets from investors and the general public depends largely on the existence of an accurate disclosure regime that provides transparency in the beneficial ownership and control structures of companies. This is particularly true for corporate governance systems that are characterised by concentrated ownership, such as the ones in the European Union. Without a satisfactory response from these Member States within two months, the Commission may decide to continue the infringement procedure and send a reasoned opinion.
Renewable energy: Commission urges SPAIN to fully transpose the Renewable Energy Directive
The Commission decided today, JAN 2023, to send a reasoned opinion to Spain (INFR(2021)0220) for not having fully transposed EU rules on the promotion of the use of energy from renewable sources set out in Directive (EU) 2018/2001. This Directive provides the legal framework for the development of renewable energy in electricity, heating and cooling, and transport in the EU. It sets an EU-level binding target for 2030 of at least 32% renewable energy and includes measures to ensure support for renewable energy is cost-effective, and to simplify administrative procedures for renewable energy projects. It also facilitates the participation of citizens in the energy transition, and sets specific targets to increase the share of renewables in the heating and cooling and transport sectors by 2030. The deadline to transpose the Directive into national law was 30 June 2021. In July 2021, the Commission sent a letter of formal notice to Spain. To date, Spain has only partially transposed the Directive. It now has two months to comply with the transposition obligation and notify the Commission. Otherwise, the Commission may decide to refer the case to the Court of Justice of the Eu
Coastal concessions:
The Commission has decided to open an infringement against Spain for having failed to ensure a transparent and impartial selection procedure for the granting of concessions relating to coastal areas. In addition, according to the Commission, the possibility to extend existing concessions for up to 75 years without justification is against the EU rules.
The Spanish Coast Act provides for the possibility of granting ‘concessions’ (authorisations within the meaning of the Services Directive) to build permanent premises (e.g. restaurants, agrofarms, paper or chemical industry, etc.) in the so-called ‘maritime-terrestrial public domain’, outside ports, without an open and transparent selection procedure. It also allows for the possibility of extending their duration for up to 75 years, again without a selection procedure. This law breaches the Services Directive.
EC ACTIVE INFRINGEMENTS BY SPAIN:
The Commission is calling on Spain to fulfil its obligations under a previous ruling of the Court of Justice of the European Union (C-461/14).
The Commission decided today [OCT, 2023] to refer Spain to the Court of Justice of the European Union for failing to correctly transpose and apply Directive 2012/34/EU establishing a single European railway area.
The Commission takes the view that the rail regulatory framework in Spain is in breach of several provisions of the directive concerning: the management independence of the infrastructure manager – in particular the determination of infrastructure charges, the management of railway undertakings according to commercial principles, and the correct drafting of contractual agreements.
In May 2018, the Commission therefore sent a letter of formal notice, to which Spain replied in January 2019, informing the Commission that some of the objections raised had been solved through new legislation adopted, while others required further work. However, the Commission considered that Spain had failed to ensure the correct transposition of several articles of the Directive and consequently sent a reasoned opinion in October 2019. In December 2022, Spain notified the Commission that it had transposed further measures, but the Commission’s analysis concluded that not all of its points had been addressed.
The Commission has therefore decided to refer Spain to the Court of Justice of the European Union.
EU rules, including Directive 2012/34/EU, have helped create an open European rail market; railway operators have widened the choice of services available and attracted new customers away from less sustainable modes of transport.
The Commission believes that the transposition and application of Directive 2012/34/EU in Spain is still incomplete in several aspects.
While Spain modified its law regarding the determination of infrastructure charges in a direction that may potentially meet the requirements set under the Directive, it appears that the new system is not yet operational: the infrastructure manager (ADIF) now enjoys an appropriate level of independence in setting up the charging scheme, but Spanish law includes a transitional provision that suspends the applicability of the new rules until the infrastructure manager approves and publishes the new arrangements.
The law does not, however, contain any provision requiring ADIF to implement the new system within a set deadline. Unless action is taken swiftly, track access charges will be considered de facto as taxes, to be established in the incoming Spanish Budget Laws for 2024 and 2025. In these circumstances, there is a risk that the old system will continue to apply until 2024/2025. As a consequence, railway undertakings will be unable to challenge track access charges. Since they are included in a law, such charges cannot be challenged before the Spanish Courts.
Furthermore, the independence of the boards of the infrastructure managers and the incumbent railway undertaking are not clearly ensured. Considering the composition of the board, which is appointed by the Ministry of Transport, the Ministry’s right to terminate members’ mandates and the decision-making rules, it must be concluded that the State is in effect able to exercise decisive influence on management board decisions, including those on ticket prices.
Finally, key elements are missing in the contractual agreement between the Spanish government and the infrastructure managers. It lacks, for example, key performance indicators related to efficiency and a decrease in access costs.
2023 Rule of Law Report: Country Chapter on the rule of law situation in Spain
RECOMMENDATIONS OF EC TO SPAIN , ON THE RL
Overall, concerning the recommendations in the 2022 Rule of Law Report, Spain has (made):
No further progress on strengthening the statute of the Prosecutor General, in particular
regarding the separation of the terms of office of the Prosecutor General from that of the
Government, taking into account European standards on independence and autonomy of
the prosecution.
No progress on proceeding with the renewal of the Council for the Judiciary as a matter of
priority and initiating, immediately after the renewal, a process in view of adapting the
appointment of its judges-members, taking into account European standards.
Significant progress on continuing efforts to table legislation on lobbying, including the
establishment of a mandatory public register of lobbyists.
No progress on addressing the challenges related to the length of investigations and
prosecutions to increase the efficiency in handling high-level corruption cases.
Fully implemented the recommendation on ensuring adequate resources for the national
audiovisual media regulatory authority to strengthen its operations, taking into account the
European standards on the independence of media regulators in particular as regards
resource adequacy.
Some progress on pursuing work to strengthen access to information, in particular via
revision of the Law on Official Secrets.
On this basis, and considering other developments that took place in the period of reference,
and in addition to recalling the commitments made under the national Recovery and Resilience
Plan relating to certain aspects of the justice system, it is recommended to Spain to:
Strengthen the statute of the Prosecutor General, in particular regarding the separation of
the terms of office of the Prosecutor General from that of the Government, taking into
account European standards on independence and autonomy of the prosecution.
Proceed with the renewal of the Council for the Judiciary as a matter of priority and initiate,
immediately after the renewal, a process in view of adapting the appointment of its judges-
members, taking into account European standards on Councils for the Judiciary.
Proceed to adopt legislation on lobbying, including the establishment of a mandatory public
register of lobbyists.
Step up efforts to address the challenges related to the length of investigations and
prosecutions to increase the efficiency in handling high-level corruption cases, including
by finalising the reform of the Code of Criminal Procedure.
Strengthen the rules on conflicts of interest and asset declarations of persons with top
executive functions by reinforcing the sanctioning power of the Office for Conflicts of
Interest.
Advance with strengthening access to information, in particular via revision of the Law on
Official Secrets, taking into account European standards on access to official documents.
all powers of the SPANISH State must foster and protect the trust of the general public in constitutional
institutions including the judiciary…See also CCJE, Opinion No. 18 (2015), ‘The position of the judiciary and its relation with the other powers of state in a modern democracy’, para. 54: ‘Any analyses and criticisms by one power of state of the other powers should be undertaken in a climate of mutual respect’
LEGAL AID IN SPAIN IS NOW GOOD: EG:
-insolvency proceedings under the special procedure for debtors who are natural persons, run a ‘micro-enterprise’ and would have insufficient resources to start proceedings
-trade unions can now also benefit from legal aid when representing the interests of workers and
beneficiaries of the Social Security system
Rules on conflicts of interest of top executive officials are not sufficiently implemented.
Although both GRECO and the 2022 Rule of Law Report referred to the need to reinforce the
independence and autonomy of the Office for Conflicts of Interest (OCI)152
, rules governing its independence and autonomy remain unchanged. The OCI – charged with supervising conflicts of interest rules and the system for asset declaration of senior officials and members of Government – has not yet developed a manual of procedures to better approach potential
breaches… . Additionally, the Office for Conflicts of Interest of the Spanish Parliament
– a separate administrative body – has stressed the importance for members of Parliament to
comply with the obligation to make public their institutional agenda, especially on meetings
with representatives of interest groups. In its report published in October 2022156, the
Parliament OCI reported that declarations of conflicts of interest are not sufficiently detailed…and furthermore, that no complaints of non-compliance were submitted157. Moreover, in its
report, published in April 2023, the Parliament OCI reported that a relevant number of deputies
failed to comply with the obligation of publishing their institutional agenda through the
Chamber’s Transparency Portal
. The Parliament OCI also recommended parliamentarians to include meetings with groups of interest when disclosing their agendas
. Publication of asset declarations by top executive officials is done annually through an online dedicated portal: the forms are then gathered in a single document and published in the Official Journal160
.As noted by GRECO, when comparing the applicable disclosure requirements for
parliamentarians and those for top executive officials, the former still have a higher level of
detail in disclosure forms. However, a similar level of requirements might be achieved
through the implementation of the Fourth Open Government Plan