Jean Monnet Center at NYU School of Law

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2.4. The Member States' obligation to comply with the reasoned opinion and the decision of the ECJ.

The lack of clarity of the power of the Commission and the ECJ to stipulate which measures have to be taken in order to comply with the reasoned opinion and the judgement respectively, entails the consequence that the obligation of Member States to comply with those acts remains also vague. In fact, the Treaty does not say anything concerning the way Member States have to comply either with the reasoned opinion or with the judgement of the ECJ.[97] In the absence of any formal rule, it has been argued that the rules that the ECJ has specified concerning the process of compliance with its decisions, can be applied, in principle, to the process of compliance with the reasoned opinions under Article 169.[98]

When the ECJ finds that a Member State has failed to respect EC law, the State concerned is "required to take the necessary measures to comply with the judgement of the Court of Justice".[99] But if "to comply with the judgement of the Court of Justice" implied for the Member State concerned the obligation of simply putting an end to the transgression of EC law (i.e., repealing the transgressing measures or adopting the measures that were lacking), such a provision would be superfluous. Indeed, the need to ensure fulfilment of the obligations arising from the Treaty or resulting from action taken by the institutions of the Community is already established in Article 5 EC.[100] In principle, a logical interpretation of Article 171 tells us that the possible discretion of the Member State is limited by the nature of the infringement found by the ECJ and by the fact that the measures to be taken have to be appropriate to bring the infringement to an end.[101]

However, the ECJ has made that obligation more precise. As has been pointed out in the previous section, sometimes the measures to be taken are implied in the decision of the ECJ. Furthermore, it follows that, according to the case-law of the ECJ, the statement made in Article 171 has to be interpreted as also including the obligation to eliminate the present and future consequences of the non-compliance.[102] This obligation can imply "to make reparation of any unlawful consequences" with "ex tunc" effects.[103] Furthermore, compliance with a judgment of the ECJ, even of a mere declaratory content (cf. declaring a national law incompatible with the EC Treaty), can imply that both national courts and administrations must take into consideration such a decision when it is evoked by an individual in the defence of his rights.

Concerning time-limits, though Article 171 of the EEC Treaty does not specify the period within which a judgement must be complied with, the interest in the immediate and uniform application of Community law requires that the process of compliance with a judgement must be initiated immediately and completed as soon as possible.[104] This "as soon as possible" has been understood as "the minimum period needed for the adoption of the measures required".[105]

Finally, even if the practical execution of a decision of the ECJ depended mainly on the good will of Member States (before the aceptance of financial sanctions) this fact would not be too different from the situation in Member States under national procedural law when the State is condemned by a national court.[106]

[ ]97See e.g. Article 171 EC Treaty.

[ ]98In this sense, ARROWSMITH, Sue Remedies for Enforcing... op. cit. pp. 14-19.

[ ]99Article 171(1) EC Treaty

[ ]100See DIEZ-HOCHLEITNER, Javier "La respuesta ..." op. cit. p. 842: " tal fuera la única consecuencia que debe atribuirse a la disposición transcrita, su inclusión en el artículo 171 podría considerarse ociosa".

[ ]101See in this sense, DASHWOOD, Alan & WHITE, Robin "Enforcement Actions under Articles 169 and 170 EEC" op. cit., p. 406.

[ ]102see Case 70/72 Commission v. Germany, cit., para. 13, p. 829.

[ ]103See Case 6/60 Humblet, cit., in p. 569: "In fact if the Court rules in a judgement that a legislative or administrative measure adopted by the authorities of a Member State is contrary to Community law, that Member State is obliged, by virtue of Article 86 of the ECSC Treaty, to rescind the measure in question and to make reparation for any unlawful consequences which may have ensued". See also AUDRETSCH, op. cit., p 123.

[ ]104Case C-328/90 Commission v. Greece ECR I-425 to I-439, para. 6, p. I-437. See also Case 169/87 Commission v. France [1988] ECR 4093-4119, para. 14, p. 4118; Case 131/84, Commission v. Italy [1985] ECR 3531-3537, para. 7, p. 3536.

[ ]105Case 169/87, cit., para. 14, p. 4118.

[ ]106See FERRIERE, Georges Le contrôle de la légalité des actes étatiques par la Cour de justice des Communautés Européennes (Paris: Pedone, 1968) pp. 57, 58.

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