Rolf Wägenbaur


It is well known that Member States of the European Community (“EC”) do not always comply with Treaty provisions or with directly applicable secondary Community legislation. There are, however, legal remedies in the case of noncompliance of Treaty provisions or directly binding regulations. Citizens may bring claims against Member States in national courts or may lodge a complaint with the Commission. The situation is more complicated with claims based on directives because directives must be implemented by Member State legislation. Member States are responsible for adapting their existing legislation or establishing new legislation. Often, this is done late, long after expiration of the period for Member State compliance, or else, in many cases, the transposition does not fully comply with the text or the spirit of the directive. A number of remedies are available in the event of noncompliance. European Court of Justice (“ECJ” or “Court”) case law has extended the principles of direct applicability to directive provisions that are clear and unconditional. In the Francovich case, the Court went beyond this and found that citizens can have an action for damages if they suffer a financial loss when a Member State fails to implement a directive in due time. Finally, one of the innovations of the Maastricht Treaty on European Union (“TEU”) is the possibility of ordering a Member State that fails to comply with an ECJ judgment to pay a lump sum or penalty. This new provision must be seen in the context of the Treaty provisions for infringement proceedings against Member States. Before turning to this provision, I would like to refer to some other ideas on how to improve the quality of Community legislation in order to improve Member State compliance.