CC BY
17THE RESPONSIBILITY OF MEMBERS STATES IN THE EUROPEAN UNION LAW
Chystiakova Y. V.
National university "Odessa academy of law " phd, associate professor of EU law and comparative legislative departure
Odessa, Ukraine
ABSTRACT
The institution of the EU Member States' responsibility in the EU law is a controversial category.The specificity of the legal responsibility of EU Member States is also complicated by the unique supranational nature of the Union itself, that is why it should be revealed in a detailed way. The regulatory framework for regulating Member States responsibilities under EU law was analized in the article, inccluding particular decisions of the Court of Justice of the European Union.
Keywords: EU law, institution of responsibility, states responsibility, Members States, Court of Justice of the European Union, supranatinal law.
Statemen of the problem. Modern eurointegration aspirations of Ukraine predetermine a deeper stud-ing and researching specific features of the supranational legal system of the EU. In connection with the further planning of Ukraine's accession to the EU, ukrainian scientists should pay special attention to the institution of responsibility of Members States in provisions of the EU law and consider the relevant consequences of membership in the Union, as the principles of legal liability form an important part of any legal system, including the legal system of the EU. They ensure the effectiveness of legal mechanisms of implementation of norms of the EU legal acts and further processes of integration, harmonization and unification legal standards.
For European science the actuality of this theme is evoked by current situation in some member states that may cause the practical usage of the institution of States responsibility. For example, on 19 July 2017 European Commission has substantiated its grave concerns on the planned reform of the judiciary in Poland in a Rule of Law Recommendation addressed to the Polish authorities [1]. That can be considered as the beginning of im-plementig the institution of responsibility of Member States.
A significant contribution to the development of the theoretical and practical issues of the institution of Members States responsibility in the EU law was made by such scholars as: Chuvalskaya I.P., Lucinin A.L., Kembaev Zh.M., Kapustin A.Y., Vishnyakov O.K., Zadnipryan M.Y. and others.
The highlight of the previously unsolved parts of a common problem. However, it should be noted that despite a large number of scientific works and significant achievements in this field, a number of theoretical and practical questions remain unresolved, debatable and there is a need for further development of researches of the institution of Members States responsibility in the EU law, which is the main aim of this article.
Essential material. The regulatory framework for regulating Member States responsibilities under EU law is, above all, the provisions of the founding treaties in the Lisbon edition of 2007 and decisions of the Court
of Justice of the European Union (CJEU), that fill in the gaps in these matters.
According to the Art. 4 of the Treaty on European Union[2] the general obligations of the Member States are: in accordance with the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties; the Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union; the Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. These provisions constitute the legal basis for resolving EU Member States' liability issues.
It should be noted that the institution of the EU Member States' responsibility in the EU law is a controversial category. Legal framework of legal responsibility of the state, state authorities and officials, in contrast to the responsibility of individuals or legal entities, has its own specifics. One of the differences, as scientists point out, is that, unlike individuals, state bodies are legally obliged to bear legal responsibility openly, transparently, to ensure that there is a fact of responsibility before citizens. This modern practice of "open government" in European countries is seen as the main function and necessary condition for a modern democratic state [3, p. 98]. The specificity of the legal responsibility of EU Member States is also complicated by the unique supranational nature of the Union itself.
A number of scholars determine the nature of the responsibility of Member States according to the EU's law as an international one. For example, I. Chuvalskaya notes: "In circumstances where the legal area of the European Union logically arranges itself as an integral part of the legal community, and the Member States of the European Union themselves are members of the UN (and they apply the UN Charter), so, the general scheme of action of the institution of international liability can be applied totally in relation to all Member States of the European Union. The only specificity here is that in the framework of the European Union accord-
ing to the provisions of the Treaties there are own judicial bodies (unlike the world's - the International Court of Justice). Thus, the institution of responsibility under the law of the European Union forms an integral part of the universal system of international responsibility of States in the general parameters of the world community" [4, p. 495]. However, it is difficult to agree unconditionally with such position.
On our opinion, we should determine the special supranational legal nature of responsibility of the Member States, on the basis that the doctrine of recognition of supranational nature of the EU law is dominant in modern legal doctrine [for example: 5, p. 28-30]. In particular, the specific features of this institution of the EU law can be attributed to the fact that only the EU Member States and institutions can be recognized responsible for the violation of the EU law. Individuals have indirect responsibility, which is determined by the national authorities (courts), but at the same time they have the right to sue the state that has violated the law of the Union. In addition, the CJEU went beyond the classical international understanding of liability, recognizing the legality of existence of non-contractual liability and the right of individuals to redress of injury from the Member States. That is why a number of scholars affirm that responsibility in the EU law is analogical to civil liability [6]. It is also necessary to take into account that supranational institutions (primarily the Council of the EU, the Commission and the CJEU) have possibility to use real mechanisms for bringing Member States to justice and restrain violations they perceived. The EU institutions have decision-making powers that operate in Member States without an approval from their national parliaments. They play the role of the main consolidating force within the EU. In particular, the role of the CJEU should be noted here, since in its decisions the legal nature of the Union was defined as specific and such that cannot be identified either with the national or with international law and order. Beginning with the known ruling in Costa case, issued on July 15, 1964 [7], the CJEU, in all cases that raised this question, always and consistently emphasized that the EU law is a distinctive, autonomous and independent legal system.
Article 7 of the Treaty on European Union is the legal basis for applying to the Member States the most severe sanctions for breaching their obligations to the Union. The Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State that has allowed the existence of a serious and persistent violation of the values referred in the Art. 2 of the Treaty on European Union, including the voting rights of the representative of the government of that Member State in the Council. Such basic values for the Union include: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
Making the decision to suspend certain rights, the Council shall take into account the possible consequences of such suspension for the rights and obliga-
tions of individuals and legal entities. Under all circumstances, the responsibilities entrusted to the Member State under the Treaties shall remain binding on that State. The adoption of such decision by the EU Council is preceded by a procedure defined in the text of the Treaty on the EU. Thus, on a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in the Art. 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. Though such recommendations are not legally binding, they may, in case of non-fulfillment, serve as a basis for using more effective measures of influence by the EU institutions. The Council regularly checks whether the reasons that caused such statement continue to apply. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in the Art. 2, after inviting the Member State in question to submit its observations. When such statement is made, the Council, acting by a qualified majority, may decide to suspend certain rights. Subsequently, the Council, acting by a qualified majority, may decide to vary or revoke measures that have been taken in response to changes in the situation which led to their being imposed.
It should be noted that the effect of the rule of the Art. 7 of the Treaty on the European Union has never been introduced. However, when, at the beginning of 2000, the 14 Member States of the European Union (which at that time consisted of 15 member states) applied diplomatic sanctions against Austria (where the coalition government included members of the ultra-right political party headed by J. Haider), they have based their position precisely in the provisions of this article. The European Union itself did not have time to impose any prohibition, since in February 2000, J. Haider left the position of the head of the party, and soon the conflict that had arisen was settled. However, this incident served as the basis for initiating innovations to the Treaty on the EU. According to the Treaty of Nice of February 26, 2001, to the above-mentioned procedure of prosecuting the EU Member States for violating the basic values of the European Union, the optional stage was added - the statement by the Council that there is a clear threat of serious violation by any Member State of the EU values [8, p.124].
An important contribution in the disclosure of the specifity of responsibility of Member States played the practice of the CJEU. As already noted, the CJEU has formulated and introduced into the EU legal system a rule that established the responsibility of the Member States for not complying the rules of the Union's law before private individuals or legal entities. The key point in this question was established in the Frankovich v. Italy judgment [9].
During the consideration of the case, the question was whether a private individual who has suffered from non-compliance of the directive, by virtue of the current EU law, could require from the State to comply the provisions of the directive, referring to the direct effect of the provisions of the EU act, or could to claim the compensation for damages, even if this is not foreseed by the directive. In considering the first part of the question (of State responsibility) the Court found it necessary to point out that the Treaty on the EU has established its own legal system, which is binding on judicial authorities and actors of both Member States and private individuals that are under their jurisdiction. The EU's law by imposing obligations on individuals establishes in the same time to them rights that are part of their personal legal status. And since individuals have such rights, they must be protected, by national courts as well. From this it follows also necessity of existence of a mechanism to charge from the state the damage caused by non-compliance of the mandatory rules of the EU law, since only this can ensure the real implementation of them. Otherwise, the existence of the Union will be doubtful. In addition, the obligation of Member States to recover damages is based on the Art. 5 of the Treaty establishing the European Economic Community (Art. 4 of the Treaty on European Union in the Lisbon edition), according to which Member States should take all measures of a general or specific nature that are necessary to fulfill their obligations imposed on them by the EU law. Among such obligations is the elimination of all the consequences of an unlawful violation of EU law.
However, as it is a question of restricting the rights of States, the CJEU has developed a list of conditions, only in the presence of which it is possible to compensate damages. Three such conditions are: as a result of implementation of the directive the empowerment of individuals by the privileges is necessary; these privileges should clearly come out from the directive; the existence of a causal link between a breach of an obligation by the Member State and the damage suffered by an individual. In case of presence of all these conditions, the Member State is obliged to reimburse the damage in accordance with the provisions of national liability law. To this each Member State has to develop a legislative mechanism for such a reimbursement.
Thus, in spite of the fact that the text of the Founding treaties of the EU do not explicitly establish the institution of the responsibility of the Member States to individuals, the Court by its decision introduces the non-contractual liability of Member States to the EU system of law, which, in the opinion of a number of scientists, in particular A. Kapustina, has a civil character and is approaching to a civil law institute of liability for damages [10, p. 346].
It should also be noted that the CJEU (as well as the national courts by virtue of the obligation to apply EU private law) may put responsibility for causing damage to an individual not only to the state, but also to specific provincial authorities and even to the company. For example, the Supreme Court of Austria, in an appeal, had to settle the issue of reimbursement for a private individual in the case when that the provincial
law (of the Tyrol area) contradicted to the EU law. The Supreme Court acknowledged that compensation for damage caused to a person by measures taken in violation of the EU law is not necessarily carried out by the federal center. Another example: Ireland for execution of the Second Travel Insurance Directive of the Council on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, applied the institution of liability to certain state insurance companies in order to cover all relations in area of compensation for damage caused by unknowing vehicles, in cases where the driver-infringer cannot be identified [6]. However, the transfer of responsibility for failure to comply or improper enforcement of the EU law from Member States to a company or region is a rather rare occurrence.
In addition the soliciting by individuals to the CJEU, the prosecution of Member States may take place at the request of the EU Commission. According to the Art. 17 of the Treaty on the EU, the Commission promotes the common interests of the Union and, with this in view, pursues appropriate initiatives, it monitors the application of the Treaties and measures adopted by the institutions on the basis of them, and monitors the application of Union law under the control of the CJEU. Thus, in accordance with the Art. 258 of the Treaty on the functioning of the EU [11], if on the opinion of the Commission a Member State has failed to fulfill any of its obligations under the Treaties, the Commission shall issue a reasoned opinion on this matter, previously giving an opportunity to the State to submit its observations. In case when the State will not bring the national law into conformity with the EU law in terms set by the Commission, it may apply to the CJEU.
Thus, the procedure of bringing the EU Member States to responsibility consists from two stages: the administrative procedure, as a mandatory step; the judicial procedure, as an optional stage, since the claim is submitted to the Court only when the Member State has failed to comply with the Commission's instructions[8, p.125].
The administrative procedure is carried out in stages. An informal procedure (confidential), which is not foreseen by the EU Treaties, is initiated. The Commission receives information on violation by the state of the EU law from other EU entities (states, legal entities and individuals, etc.) or on the basis of its own inspections. Any interested person can file a complaint to the Commission with the charges. The Commission then appeals to the Government of this State and proposes to submit additional information, documents, evidences or take measures to eliminate the violation. The state must notify the Commission of its decision. The most of the procedures are completed at the informally-confidential stage. States are substantially focused or to eliminate violations, or to resolve the situation through negotiations. The results at this stage are not announced [4, p. 500].
If the informally-confidential stage did not give the results, the procedure passes to the formal stage. The Commission sends an official request to the Government of the State, in which it specifies the content and nature of the violation, with references to specific
norms of the EU law. The Government will respond to it by its objections and remarks. If the Commission is not satisfied with the comments provided by the state, then it will start an investigation against the offender. The Member State against which the investigation has begun shall have the right to express its reasoned position. On the basis of the investigation, a reasoned opinion is given, which sets a deadline for eliminating violations, and is sent to the government of the offending state.
In cases when the Member State does not take into account the conclusion reached by the Commission, it may bring an action for failure to fulfill obligations to the Court of Justice of the EU, as it cannot by itself to impose sanctions to Member States. This is the most widespread category of lawsuits; almost all such lawsuits are satisfied by the Court [4, p. 503].
In accordance with the Art. 259 of the Treaty on the functioning of the EU, except the Commission, each Member State may apply to the CJEU if it considers that another Member State has failed to fulfill any of its obligations under the Treaties. Before such Member State will lodge a lawsuit against another Member State it should refer the matter to the Commission. The Commission shall issue a reasoned opinion, previously giving to the interested States an opportunity to submit their written and oral observations in the context of the competitive proceedings. The absence of a conclusion of the Commission, if it did not reach a conclusion within three months from the date when it was referred, would not prevent the applicating Member State go to the Court of Justice of the European Union.
If the CJEU declares that the Member State has failed to fulfill any of its obligations under the Treaties, that State shall take all measures necessary to comply the decision of the Court (Art. 260 of the Treaty on the Functioning of the EU). In this case, the role of the supervisory body for the implementation of the decision relies on the Commission. If to the opinion of the Commission, the Member State did not take the measures necessary to comply the decision of the CJEU, after giving to the State the opportunity to submit its observations, it may refer the matter to the Court, indicating the fixed amount a fine which, on its opinion, corresponds to the circumstances of case, and should be paid by the concerned Member State. If the Court of Justice recognizes that the concerned Member State has not taken measures in accordance with its decision, it may impose on that Member State the obligation to pay a fixed amount or a fine. The obligation of payment comes into force on the date set by the Court in its decision. The limitation periods in such cases are not established.
Summary. As the result of considering the institution of responsibility of Member States in the law of
the European Union, it should be noted its specific supranational legal nature, taking into account the peculiarities of the mechanism for attracting it and the peculiarities of the institutions that have the power to take measures to influence on the Member States that violate their obligations under the provisions of the Founding treaties. It should be noted that this institution can not be assimilated to the institution of the responsibility of States in international or national law.
References
1. Rule of Law in Poland and hybrid threats [Electronic source]. - Mode of access: https://ec.eu-ropa. eu/commission/news/rule -law-poland-and-hy-brid-threats-2017-jul-19_en
2. Treaty on European Union [Electronic source]. - Mode of access: http://eur-lex.europa.eu/legal-con-tent/EN/TXT/HTML/?uri=CELEX:12012M/TXT&fro m=en
3. Zadnipryan M.Y. Principles of Legal Responsibility of the State, State Authorities and Their Officials in Ukraine and the European Union // Law and Innovations. - 2014. - No. 3. - P. 97-104.
4. Chuvalskaya I.P. Institute of responsibility on the law of the European Union as a category of modern international law // International law and international organizations. - 2015. - No. 4. - P. 494-509.
5. The law of the European Union: handbook. / ed. O. K. Vishnyakov - Odessa: Phoenix, 2013. - 883 p.
6. Lucinin A.L. Responsibility of the EU member states for breaching the European law // Problems of the modern economy. - 20 06. - No. 3/4 (19/20) [Electronic source]. - Mode of access: http://www.m-econ-omy.ru/art.php?nArtId=1115
7. Judgment of the Court of 15 July 1964. Flaminio Costa v E.N.E.L. [Electronic source]. - Mode of access: http://curia.europa.eu/juris/liste.jsf?num=C-6/64
8. Kembaev Zh.M. Legal liability of the European Union member states for violation the European law // Modern law. - 2010. - No. 8. - P. 123-126.
9. Judgment of the Court of 19 November 1991. Andrea Francovich and Danila Bonifaci and others v Italian Republic [Electronic source]. - Mode of access: http ://eur-lex. europa. eu/legal-con-tent/EN/TXT/?uri=CELEX%3A61990CJ0006
10. Kapustin A.Y. European Union: Integration and Law: Monograph. - Moscow: RUDN, 2000. - 436 p.
11. Treaty on the functioning of of the European Union [Electronic source]. - Mode of access: http://eur-lex.europa.eu/legal-con-
tent/EN/TXT/HTML/?uri=CELEX:12012E/TXT&fro m=EN
