The purpose of 258 is that under article 10 of the EC Treaty that member states have an obligatory duty to comply with EU law. And that they do not try to avoid their duties. The Commissioner is seen as the ‘Guardian of the treaties’ therefore reinforcing his role as prosecutor enabling him to keep uniformity between the member states and those defaulting, trying to resolve the issues effectively.
Consequently, if the member state still fails to comply with the decisions laid down by the Commissioner then it is for the commissioner to bring the matter before the Court of justice.
The 258 procedure consists of two main stages the administrative stage and the judicial stage. Furthermore the administrative stage is broken down into a further three steps. Firstly, the informal inquiry. This consists of where the commission tries to ascertain the nature and extent of the breach, and under article 10 TEU the member states have a legal duty to cooperate into the investigations.
Case-240/86 is where there was a possibility of a breach relating to free movement of goods and Greece refused to give consent to the Commission to investigate. Subsequently as well as issuing procedure under 258 to investigate and prosecute, the Court of Justice also held that Greece was in fact in breach of article 10 of the EC. Secondly, this provides that, ‘If the Commission considers...it shall deliver a reasoned opinion...may bring the matter before the Court of Justice of the European Union.’ This states that it does not have to carry out a formal investigation but it is best to see if there is recognition of a breach. As the second stage is normally the formal notice which is if the issue is not resolved then a letter of communication is sent to the state concerned, in this case the French government, specifying the grounds of the breach. Furthermore, the commission does allow a 2 month time limit in which it can observe or the state in question can offer a defence. As it can be seen in Case-51/83it is an essential procedural requirement.
Finally, the reasoned opinion is the final pre-litigation period. This is after the result of enquiries if the Commission finds that there has been a breach or violation of the law in place. The reasoned opinion and its contents are of importance because it cannot bring in issues which are not stated within the opinion. As in the case- 7/69 there were issues which were raised before the court even that the Member state and consented to the named issues but this could never be challenged. This legal document also sets a time limit normally of two months. However the time limit imposed must be reasonable otherwise it cannot be successful in bringing a claim, as in Case-74/82 as this is imposing a ban on poultry and also in accordance to the licensing agency for the issuing of poultry carcases.
Nevertheless, the time limit imposed is of importance as it can be negotiated depending on the circumstances or can be suspended like in Case 31/69
Presupposes the end of the pre-litigation stage...allowed “period of grace”...which the effects of the reasoned opinion are suspended
As it can also be seen in case-1/00 where France were given a shorter period in the reasoned opinion to lift the ban of importing British beef, as of firstly they had declined and were in breach of EU treaty law.
Subsequently, the Commissioner cannot bring the case before the Court of justice if the member state has complied with the recommendations in the reasoned opinion. However in the Case- 298/86 the national law of tax did not meet that of those inferred by the treaty and therefore Belgium were in breach as they did not remedy the breach before the expiry of the reasoned opinion and the Commission did have a duty to bring the matter before the Court of Justice. As this was also reiterated by the Judges in the case- 7/61,
If a member state does not comply ...within the prescribed period, there is no question that the Commission has the right to obtain the Court’s judgement...on failure to fulfil.
The provisions laid down in the reasoned opinion do not have to be fully complied with but just in part as in the Case- 439/99 as this reaffirmed that it was inadmissible for the Commission to bring the case before the Court of Justice.
Furthermore, if the obligations imposed on upon the member states have failed as in the Case- 382,383/92, this is where the UK failed to implement the working time Directive of the EU treaty provisions before the time limit and ended in breach of this law, the Commission may therefore move swiftly onto infringement proceedings.
Therefore this proceeds to a judicial stage. The way in which this works is that the statement of the reasoned opinion cannot be challenged but if the case does go to referral; to the Court of Justice it is considered to be ‘de novo’. This means that the administrative stage has to be repeated if the member state is found to be in breach and therefore reaches the judicial stage and the court of justice will enter a ‘Declaratory Judgment.’
Commission v Greece ([1992] ECR I-2509)
Same as footnote 6, paragraph 13