faced by Member States in implementing and applying EU law can become an

Faced by member states in implementing and applying

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faced by Member States in implementing and applying EU law can become an important aspect of the policy development stage because it can help the EU to assess in advance what is feasible to ask of the Member States. When the Commission decides to launch proceedings under Article 258, the procedure falls into two distinct phases: 1st phase: administrative phase
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2nd phase: judicial phase ADMINISTRATIVE PHASE Letter of formal notice. Member State may submit observations. Reasoned opinion. Deadlines. Scope of proceedings. The administrative phase corresponds to first paragraph of Article 258: what that paragraph requires is that the Commission take two steps: the first, is that it must give the state concerned the opportunity to submit its observations on the allege breached. This is done by the Commission sending to the government of the Member State a letter of formal notice: it defines the subject matter of the dispute and indicates the essence of the complaint. The Commission must allow the Member State a reasonable period to reply to the letter. What is reasonable depends on the circumstances, sometimes a very short period might be justified. E.g. if there is an urgent need to remedy a breach or where the MS was aware before receiving the letter of the Commission’s view. The Member State doesn’t have to respond to the letter but whether or not it chooses to respond, the Commission then has the option of delivering a Reasoned Opinion on the matter. This is second stage of the administrative phase. The reasoned opinion is important; upping the ante. The Commission cannot include in its Reasoned Opinion a complaint on which the Member State has not had opportunity to comment; although that opportunity is given to the Member State in the letter of formal notice. But the Commission is entitled to elaborate in the reasoned opinion, on the complaints it has set out in more general terms in the letter of formal notice, but taken together, the letter of formal notice and the reasoned opinion define the scope of the proceedings and cannot subsequently be enlarged. The scope of the proceedings is defined once the reasoned opinion has been issued. The Commission lays down a deadline in the reasoned opinion a deadline for compliance by the Member State and that deadline determines the relevant date for the purpose of any relevant proceedings before the Court. Compliance by the Member State with its obligations after the deadline has passed does not prevent the Commission from bringing the matter before the Court, because the crucial date is the deadline set out in the Reasoned Opinion. The reason given by the Court for allowing cases to continue where a Member State has complied just after the deadline has expired, is that the Commission retains an interest in continuing the case because the judgement of the Court may be relevant to the State’s liability. The case law says the state’s liability includes that to other Member State, the Union, or private parties as a result of the breach.
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