Purpose
The skill guides German authorities and their advisers through the stages of infringement proceedings under Art. 258–260 TFEU: the pre-litigation procedure (letter of formal notice → reasoned opinion) and judicial proceedings before the CJEU, including the sanction stage under Art. 260 II TFEU (lump sum and penalty payment). It provides deadlines, response modules, a risk assessment and an outline of internal federal-state coordination.
Inputs
- Stage of the proceedings (informal EU Pilot, letter of formal notice under Art. 258 TFEU, reasoned opinion, bringing of an action, Art. 260 follow-up proceedings)
- alleged infringement (which directive/regulation/treaty provision, which specific facts)
- level concerned (federal government / federal state / municipality; under Art. 23(6) of the Basic Law, if applicable, internal representation by the Bundesrat)
- previous correspondence with the Commission
- political and legal objective (avert proceedings / accept action / minimise sanction)
Sub-agent architecture
The Researcher provides TFEU provisions, relevant CJEU infringement case law, Commission communications on the determination of sanctions and commentary passages. The Drafter drafts the response to the Commission or the internal submission to the BMJ/BMWK + Federal Chancellery and assesses the sanction risk. The Reviewer checks deadlines, competences and the risk classification.
Procedure
1. Pre-litigation procedure – letter of formal notice (Art. 258 TFEU)
With the letter of formal notice ("lettre de mise en demeure", "Letter of Formal Notice"), the Commission initiates the formal proceedings. The Member State receives as a rule two months to submit its observations. Content of the response:
- clarification of the facts (the facts from the German perspective)
- legal counterarguments (compliance of the national provision/practice with Union law)
- if applicable, notification of remedial measures already initiated with a timetable
2. Pre-litigation procedure – reasoned opinion (Art. 258 II TFEU)
If the Commission considers that the infringement has not been remedied, it issues a reasoned opinion ("reasoned opinion") with a specific deadline (as a rule also two months). If the Member State does not respond adequately, the Commission can bring an action before the CJEU.
3. Judicial proceedings (Art. 258, 259 TFEU)
The action seeks a declaration that the Treaty has been infringed. The CJEU rules declaratorily. Under Art. 260 I TFEU, the Member State is obliged to take the measures arising from the judgment.
4. Sanction proceedings (Art. 260 II TFEU)
If the Member State fails to comply with the judgment, the Commission can again bring the matter before the CJEU and apply for a lump sum and/or penalty payment. Amount in accordance with Commission communications (most recent update 2023 — factors: seriousness, duration, ability to pay, factor "n").
In the case of non-implementation of directives, the shortened route under Art. 260 III TFEU applies: sanction already in the first judgment.
5. Internal coordination between the federal and state governments
Under Art. 104a(6) of the Basic Law liability lies domestically with the public authority whose infringement leads to the sanction (federal/state governments, where applicable proportionally); in the case of cross-state financial corrections by the EU, the distribution key laid down there applies (15/85 between the federal government and the states collectively, of which 35% jointly and severally, 50% according to use of funds; details are governed by the Burden Equalisation Act on Art. 104a(6) of the Basic Law). Relevant in practice: if the sanction is due to a failure by a state to implement, the state concerned bears the burden domestically.
Parties involved: BMJ (lead on EU law), BMWK / the competent federal ministry, Federal Foreign Office (liaison to the Permanent Representation), Federal Chancellery, the state concerned.
6. Strategic options
- Early remedy before legal action (amendment of the norm/administrative practice)
- Negotiated implementation timeline with the COM
- Full defence before the CJEU (rarely successful, but conceivable in the event of a dispute over interpretation)
- Mitigation of damage through credible commitments to remedy with a concrete timetable in order to reduce the amount of the lump sum/penalty payment
Sources and citation style
Binding: ../../../references/zitierweise.md.
Primary law
- Art. 258 TFEU (infringement proceedings)
- Art. 259 TFEU (proceedings on the application of a Member State)
- Art. 260 TFEU (obligation to comply, sanctions)
- Art. 4(3) TEU (sincere cooperation)
- Art. 23 of the Basic Law (Europe article, participation of the states)
COM communications
- COM, Communication "Updating of data used to calculate lump sum and penalty payments" (current version in each case in the OJ C series; most recently 2023/C 2/01, eur-lex.europa.eu)
- COM, Communication "EU law: Better results through better application" (2017/C 18/02), eur-lex.europa.eu
Commentaries
- Cremer, in: Calliess/Ruffert, EUV/AEUV, 6th ed. 2022, Art. 258 TFEU para. 1 et seq.; Art. 260 TFEU para. 1 et seq.
- Karpenstein, in: Grabitz/Hilf/Nettesheim, Recht der EU, status 2024, Art. 258 TFEU para. 1 et seq.
- Wegener, in: Streinz, EUV/AEUV, 3rd ed. 2018, Art. 258 TFEU para. 1 et seq.
Case law
- CJEU, judgment of 12.07.2005 – Case C-304/02, Commission v France (combined sanction lump sum + penalty payment), eur-lex.europa.eu
- CJEU, judgment of 19.12.2012 – Case C-374/11, Commission v Ireland (determination of sanctions), curia.europa.eu
- CJEU, judgment of 16.07.2020 – Case C-549/18, Commission v Romania (Art. 260(3) TFEU in the event of failure to transpose a directive), dejure.org
Output format
INTERNE VORLAGE — Vertragsverletzungsverfahren
Adressat: <BMJ / Landesministerium>
Stufe: <Mahnschreiben / Begründete Stellungnahme / Klage / Art. 260 II>
I. Sachverhalt
II. Vorwurf der KOM (kurz)
III. Rechtliche Bewertung
1. Tatbestand der Vertragsverletzung
2. Rechtfertigung / Gegenargumente
3. Sanktionsrisiko (Pauschalbetrag / Zwangsgeld)
IV. Bund-Länder-Zuständigkeit
V. Strategieoptionen
– Option A: <Abhilfe / Zeitplan>
– Option B: <Verteidigung>
– Option C: <Verhandlung>
VI. Fristen und Wiedervorlage
VII. Risiken (🟢/🟡/🔴)
VIII. Quellenverzeichnis
Risks / typical mistakes
- Deadline for reply missed → COM moves to the next stage; politically and financially costly.
- Facts unclear in the response to the Commission → the Commission maintains its assumption; a later hearing before the ECJ is after subject-matter of the dispute binding limited by the reasoned opinion.
- Overlooking of Art. 260 III TFEU in case of non-transposition of a directive — a sanction is already imminent in the first judgment.
- Domestic distribution of burdens between the federal government and the state not clarified in advance — political dispute after conviction.
- Early promise of remedy without a realistic timeline — the Commission does not withdraw the proceedings but documents the breach.