In order to effectively approach the question I will firstly outline the steps available to the Commission to enforce EU law, namely the procedure under Art 226 EC. Secondly I will examine how successful the Commission is likely to be, with regards to the remedies that are available to them,through an analysis of the relevant case law.
What steps can the Commission take in order to enforce EU Law? Are they likely to be successful, and if so, what remedies are available to them?
The consistent application and thereby the effectiveness of EC law cannot be assured whilst lacking efficient enforcement mechanisms. In order to ensure that both Member States and EUinstitutions comply with their obligations under the Treaty, there are a number of approaches the Commission can adopt. We will focus on the “indirect” actions under Art 226 (EC), which concerns infringement proceedings:
‘If the Commission considers that a Member State has failed to fulfill an obligation under the Treaty, it shall deliver a reasoned opinion on the matter after giving the Stateconcerned the opportunity to submit its observations. If the state concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.’
Essentially, if a given Member State does not comply with a particular requirement under the Treaty, it will be given the opportunity to explain its failure to comply, before theCommission delivers a “reasoned opinion”. If the Member State persists in its failure to comply, the Commission can bring proceedings against the Member State in the ECJ.
Along with the “indirect” actions the Commission can utilise the “direct” actions, namely Art 230 (actions against EU institutions for exceeding powers), and Art 232 (actions against Community institutions for failure to act).Provided that the possibility of non-compliance has been notified, in the scenario given, the Commission can engage in informal discussion with the United Kingdom. This is known as the informal stage or mediation. The Commission will also identify the severity of the breach and will prescribe a time limit within which the UK must comply with the relevant obligation under the Treaty, namely itsobligation under Art 39(1) EC with regard to free movement of workers.
If the UK does not comply with its obligation within the prescribed time, the Commission can issue a notice inviting the UK to explain its non-compliance, known as a ‘formal notice of default’. The Commission will need to exercise caution in defining precisely the failure of the UK. Once the terms of reference of the actionhave been outlined at this stage, they are fixed, meaning the Commission will be unable to extend the scope of the action afterwards, from Commission v Italy (Re Payment of Export Rebates).
If the notice of default fails to have the desired effect on the UK, the Commission will issue a “reasoned opinion”, setting out its opinion on why the UK has breached its obligations, and setting afurther time limit for the UK to act. However, given that the reasoned opinion is not binding as of itself, the next stage will be to bring proceedings before the ECJ.
Court proceedings depend on the action taken by the Member State following the earlier proceedings. In the present scenario, the UK have kept the 2007 Act in force, and when the matter came before the Asylum and Immigration Tribunalin June 2009, the Tribunal accepted the UK authorities’ argument that the law was justified on the grounds of public security. However, it is important to note that leave to appeal to the High Court was refused, as was a request for a preliminary ruling under Art 234 (EC) to the ECJ.
The success of the Commission in bringing an action against the UK will depend on the strength of UK’s defence...