December 2021 infringements package: key decisions
02 December 2021by eub2 -- last modified 02 December 2021
In its regular package of infringement decisions, the European Commission pursues legal action against EU Member States for failing to comply with their obligations under EU law. These decisions, covering various sectors and EU policy areas, aim to ensure the proper application of EU law for the benefit of citizens and businesses.
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The key decisions taken by the Commission are presented below and grouped by policy area. The Commission is also closing 90 cases in which the issues with the Member States concerned have been solved without the Commission needing to pursue the procedure further.
For more information on the EU infringement procedure, see the full Q&A. For more detail on all decisions taken, consult the infringement decisions' register.
1. Environment and fisheries
Letters of formal notice
Urban waste water: Commission calls on MALTA, POLAND and SLOVAKIA to comply with EU rules
The Commission is calling on Malta, Poland and Slovakia, to comply with EU rules on urban waste water treatment (Council Directive 91/271/EEC). Under the Directive, towns and cities are required to put in place the necessary infrastructure in order to collect and treat their urban waste water. Uncollected or untreated waste water can put human health at risk and pollute lakes, rivers, soil and coastal and groundwater. The European Green Deal aims to steer the EU towards a zero pollution ambition, which benefits public health, the environment and climate neutrality.
In Slovakia, 19 agglomerations have failed to provide a collecting system and to ensure that the urban waste water entering collecting systems is treated appropriately. These agglomerations should have been compliant by 31 December 2015.
Under the same Directive, Member States are also required to establish a programme for the implementation of the Directive and provide the Commission with an update of the programme every two years.
Despite several reminders, Malta and Poland have not provided information on their programme to the Commission by the deadline of 30 June 2020.
The Commission has therefore decided to send letters of formal notice to Malta, Poland and Slovakia, which have two months to respond and address the shortcomings raised by the Commission. In the absence of a satisfactory response, the Commission may decide to issue a reasoned opinion.
Waste: Commission calls on CYPRUS to improve its treatment of waste
The Commission is calling on Cyprus to correctly apply the Landfill Directive (Directive 1999/31/EC) and the Waste Framework Directive (Directive 2008/98/EC). The Landfill Directive sets standards for landfills to prevent adverse effects on human health, water, soil and air. Under this Directive, Member States must take measures to ensure that only waste that has been subject to treatment is landfilled. The European Green Deal and the Zero Pollution Action Plan set a zero pollution ambition for the EU, which benefits public health, the environment and climate neutrality.
In its judgement of 15 October 2014, the Court of Justice of the EU ruled that, before landfilling, waste must be treated in the most appropriate way to reduce negative impacts on the environment and human health as far as possible. Following this ruling, in 2015, the Commission launched a study to investigate the landfilling of untreated municipal waste in Member States. In Cyprus, the study revealed shortcomings in three of the five districts of the country. 21% of the total quantity of waste produced in Cyprus is landfilled without any pre-treatment and particularly in the district of Pafos where no pre-treatment is applied at all to the waste sent to the landfill. Furthermore, Cyprus has not established an integrated and adequate network of waste management installations for mixed municipal waste.
The Commission has therefore decided to send a letter of formal notice to Cyprus, which has two months to respond and address the shortcomings raised by the Commission. In the absence of a satisfactory response, the Commission may decide to send a reasoned opinion.
Strategic Environmental Assessment: Commission calls on FRANCE to improve its national rules
The Commission is calling on France to bring its national legislation in line with the Directive on the assessment of certain effects of plans and programmes on the environment (known as the Strategic Environmental Assessment Directive - Directive 2001/42/EC). The Directive foresees that environmental considerations and concerns of the public are taken into account when preparing, adopting and implementing public plans and programmes. Integrating environmental considerations into decision-making processes prevents or reduces impacts on health and the environment, and increases social acceptance. Environmental governance plays an essential role in allowing the proper functioning of sectoral legislation.
The European Green Deal stresses the importance of Europe remaining on track to meet its environmental objectives.
The public plans and programmes covered by the Directive are subject to an environmental assessment during their preparation and before their adoption. Analysis of the French legislation revealed shortcomings of some legal provisions related to some plans, which do not conform to the Directive. These include the flood prevention and action programmes, land use plan, and technological risk prevention plan.
The Commission has therefore decided to send a letter of formal notice to France. France now has two months to respond and address the shortcomings raised by the Commission. In the absence of a satisfactory response, the Commission may decide to send a reasoned opinion.
Letter of Formal Notice Art. 260
Nature: Commission is calling on PORTUGAL to implement the Court of Justice ruling on designating special areas of conservation
The Commission is calling on Portugal to implement the judgement of 2019 addressed to it by the Court of Justice of the European Union and comply with the requirements of the Habitats Directive (Directive 92/43/EEC). Under the Directive, Member States must propose EU sites of Community importance (SCIs), which are then added to EU biogeographical lists. Within six years from such listing, Member States must designate SCIs as special areas of conservation, establish conservation objectives and measures to maintain or restore the protected species and habitats present in the sites, to reach favourable conservation status at national biogeographical level. The European Green Deal and the EU Biodiversity Strategy for 2030 both indicate that it is crucial for the EU to halt its biodiversity loss by preserving our natural sites and restoring damaged ecosystems to good ecological status.
In its judgement of 5 September 2019 (C-290/18), the Court ruled that Portugal has failed to designate 61 sites of Community importance as special areas of conservation for the Atlantic and the Mediterranean biogeographical regions. The Court also declared that Portugal has failed to adopt the necessary conservation measures for those sites. Portugal has since designated the 61 sites concerned as special areas of conservation, but has yet to adopt the corresponding management plans including objectives and conservation measures.
The Commission has therefore decided to send Portugal a letter of formal notice under Article 260(2) of the TFEU. Portugal now has two months to respond to the letter and take the necessary measures, otherwise the Commission may refer the matter back to the Court of Justice of the European Union and ask for financial sanctions.
Reasoned opinions
Urban waste water: Commission calls on GREECE to comply with EU rules
The Commission is calling on Greece to comply with EU rules on urban waste water treatment (Council Directive 91/271/EEC). Under the Directive, towns and cities are required to put in place the necessary infrastructure in order to collect and treat their urban waste water. Uncollected or untreated waste water can put human health at risk and pollute lakes, rivers, soil and coastal and groundwater. The Commission sent a letter of formal notice to Greece on the matter in May 2020.
The European Green Deal aims to steer the EU towards a zero pollution ambition, which benefits public health, the environment and climate neutrality.
Data provided by Greece revealed that, urban waste water is neither properly collected, nor properly treated before being discharged in 209 agglomerations. Greece is also relying to an excessive extent on Individual and Appropriate Systems (e.g. septic tanks) without fulfilling the standards of the Directive.
The Commission has therefore decided to send a reasoned opinion to Greece, giving it two months to remedy the situation. Otherwise, the Commission may decide to refer the country to the Court of Justice of the European Union.
Prevention of major accidents involving dangerous substances: the Commission calls on FRANCE to improve its national rules
The Commission is calling on France to bring its national legislation fully in line with Directive 2012/18/EU on the control of major-accident hazards involving dangerous substances (the Seveso III Directive). The Directive applies to over 12 000 industrial installations across the European Union and lays down rules to prevent major industrial accidents and minimise their harmful impacts on human health and the environment. Sectors like the chemical and petrochemical industry, and the fuel wholesale and storage sectors are covered by its scope. Different safety regimes apply, depending on the amount of dangerous substances present, with stricter legal requirements applying to installations handling high amounts.
The European Green Deal and the Zero Pollution Action Plan set a zero pollution ambition for the EU, which benefits public health, the environment and climate neutrality.
The Commission sent a letter of formal notice to France in October 2019 and in response, France amended national laws and regulations. However, France has still not properly enacted in national law the information that should be made available to the public. It has not ensured neither that the public concerned is given an early opportunity to comment on specific individual projects relating to new developments. This is particularly important for establishments where the siting or developments may increase the risk or consequences of a major accident.
The Commission has therefore decided to send a reasoned opinion to France giving it two months to remedy the situation. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.
Referrals to the Court of Justice
Air quality: Commission decides to refer ROMANIA to the Court of Justice of the European Union for failure to comply with EU clean air and industrial emissions legislation
The Commission decided today to refer Romania to the Court of Justice of the European Union in two cases - for failing to comply with EU rules to tackle industrial pollution and to adopt an air pollution control programme. In the first case, Romania has not ensured that three industrial plants operate with a valid permit under the Industrial Emissions Directive (Directive 2010/75/EU) in order to prevent or reduce pollution. In the second case, Romania has not adopted its first national air pollution control programme under Directive (EU) 2016/2284 on the reduction of national emissions of certain atmospheric pollutants (the "NEC Directive"). The European Green Deal, leading the EU to Zero Pollution levels, puts emphasis on cutting air pollution, which is among the key factors affecting human health. Full implementation of EU legislation is key to effectively protect human health and safeguard the natural environment. The Industrial Emissions Directive lays down rules designed to prevent and reduce harmful industrial emissions into air, water and land and to prevent the generation of waste. Under the Directive, industrial installations are required to have permits to be able to operate. Three industrial plants in Romania do not have a permit yet. Under the NEC Directive, Member States are obliged to draw up, adopt and implement national air pollution control programmes. Romania should have provided its first national air pollution control programme to the Commission by 1 April 2019, but has not yet adopted it. The Commission is therefore referring Romania to the Court of Justice of the European Union for both of these cases. More information is in the press release.
Nature: Commission decides to refer GERMANY to the Court of Justice of the European Union over failure to sufficiently protect flower-rich grasslands in Natura 2000 sites
The Commission has decided to refer Germany to the Court of Justice of the European Union for failing to comply with the requirements of the Habitats Directive (Directive 92/43/EEC) by not sufficiently protecting flower-rich grasslands in Natura 2000 sites. The Directive is one of Europe's primary tools for protecting biodiversity. Under this law, Member States have a duty to protect and restore to favourable conservation status important habitats and species, and to prevent habitat deterioration and significant disturbance to species in Natura 2000 sites. Two habitat types, low hay meadows and mountain hay meadows, that play a vital role for pollinating insects, bees and butterflies, and are protected within the Natura 2000 network, are in unfavourable conservation status in Germany. Largely due to unsustainable agricultural practices, these habitat types have significantly diminished in size or disappeared completely at various protected sites in recent years. Germany is still failing to provide adequate legal protection of these habitat types in the sites. The Commission considers that efforts by the German authorities have, to date, been unsatisfactory and insufficient and is therefore referring Germany to the Court of Justice of the European Union. More information is in the press release.
Water: Commission decides to refer SPAIN to the Court of Justice of the European Union for poor implementation of the Nitrates Directive
The Commission decided to refer Spain to the Court of Justice of the European Union for failing to take sufficient action on nitrates pollution. The European Green Deal sets as its ambition an EU with zero pollution, which benefits public health, the environment and climate neutrality. Under the Nitrates Directive (Council Directive 91/676/EEC), Member States should monitor their waters and identify those affected or likely to be affected by pollution caused by nitrates from agricultural sources. They are also required to designate areas of land that drain into these waters as Nitrate Vulnerable Zones and set up appropriate action programmes to prevent and reduce the nitrates pollution. Despite some limited progress, Spain must still take additional measures to prevent eutrophication for the whole country since the measures established to date have failed to achieve the objectives of the Directive. In addition, it should review and further designate Nitrate Vulnerable Zones in seven regions; include all the necessary mandatory elements in the Action Programmes for five regions; and take additional measures for the four regions where the measures set in place have proven insufficient to achieve the objectives of the Nitrates Directive. The Commission considers that efforts by the Spanish authorities have to date been unsatisfactory and insufficient and is therefore referring Spain to the Court of Justice of the European Union. More information is in the press release.
Fisheries and maritime affairs
Letters of formal notice
Maritime spatial planning: Commission urges GREECE, CROATIA, ITALY, CYPRUS and ROMANIA to establish their Maritime Spatial Plans
The Commission is urging Greece, Croatia, Italy, Cyprus and Romania to ensure correct implementation of Directive (EU) 2014/89 establishing a framework for maritime spatial planning. The Directive sets out a common approach for EU countries to plan their maritime areas. Maritime spatial planning seeks to organise human activities in marine areas so as to meet various ecological, economic and social objectives. Amongst these are the development of a sustainable blue economy, the sustainable use of marine resources, and the conservation of healthy marine ecosystems and biodiversity. Correct implementation of the Directive is essential to achieve these objectives as part of the European Green Deal. The Directive required coastal Member States to draw up maritime spatial plans no later than 31 March 2021, and to submit copies of the plans to the Commission and other Member States concerned within three months of their publication. Greece, Croatia, Italy, Cyprus and Romania have not established their maritime spatial plans and the Commission has not received an indication of a realistic timeline and process that would lead to the adoption of maritime spatial plans before the end of 2021.
The Commission has therefore decided today to send letters of formal notice to Greece, Croatia, Italy, Cyprus and Romania, which have two months to respond and address the shortcomings raised by the Commission. In the absence of a satisfactory response, the Commission may decide to issue a reasoned opinion.
2. Internal Market, Industry, Entrepreneurship and SMEs
Letters of formal notice
Proportionality test: Commission calls on 18 Member States to strengthen the EU Single Market for regulated professions
The Commission has decided to open infringement proceedings against Austria, Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Sweden for not having properly implemented the EU rules on a proportionality test before adoption of new regulation of professions (Directive (EU) 2018/958). The Directive provides a set of criteria to prevent unnecessarily burdensome national rules, which can make it difficult for qualified candidates to access or exercise a wide range of professions. The lack of proper implementation of the EU rules on proportionality tests could ultimately disadvantage consumers in the form of excessive prices, undermine the development of innovative services or even lead to insufficient access to important services. The Member States concerned have now two months to respond to the arguments put forward by the Commission. Otherwise, the Commission may decide to send them a reasoned opinion. A dedicated press release is available here.
Professional qualification: Commission asks CYPRUS and ROMANIA to comply with EU rules
The Commission has decided to open an infringement proceeding against Romania and to send an additional reasoned opinion to Cyprus for breaching EU rules on professional qualifications. The EU Directive on the recognition of professional qualifications (Directive 2005/36/EC) has put in place a modern recognition system across the EU. Those rules make it easier for professionals who wish to establish themselves or provide their services in other Member States to have their qualifications recognised, whilst guaranteeing a high level of protection for consumers and citizens. Ensuring a coherent application of these rules to the benefit of citizens and businesses is of particular concern for the Commission. The Commission is urging Romania to comply with its obligations under the Lawyers' Directive 98/5/EC by ensuring automatic recognition of the EU professional titles of lawyer. Those specific rules facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. The Commission is addressing Cyprus regarding the non-conformity of certain national provisions of its legislation with Directive 2005/36/EC and Article 49 TFEU. The Commission raises this issue as regards national rules on engineering professions, and in particular architects. Romania and Cyprus have now two months to respond to the arguments put forward by the Commission. Otherwise, the Commission may decide to send a reasoned opinion to Romania and refer Cyprus to the Court of Justice of the European Union.
Public Procurement: Commission urges SPAIN to comply with public procurement and concessions rules
The Commission has decided to open an infringement proceeding against Spain regarding the conformity of its national legislation with EU rules on public procurement and concession contracts. The rules (Directive 2014/24/EU, Directive 2014/25/EU and Directive 2014/23/EU) had to be transposed by Member States into national law by 18 April 2016. Following the notification of the transposition by Spain and the compliance check conducted by the Commission, there are doubts whether Spanish legislation complies with the EU Directives. The Commission has identified shortcomings related in particular to the scope of the Directives, the rules applicable to the modification of contracts and the calculation of the estimated value of contracts in specific cases. Ensuring a proper application of public procurement rules guarantees the best value for money for public purchases, makes it easier and cheaper for small and medium-sized enterprises (SMEs) to bid for public contracts, and provides more business opportunities to companies. The letter of formal notice follows the ones sent to other Member States in January 2019, October 2019 and June 2021 on the same matter. Spain has now two months to reply to the arguments put forward by the Commission. Otherwise, the Commission may decide to send to Spain a reasoned opinion.
Reasoned opinions
Car emissions: Commission calls on ITALY to enforce penalty rules on the use of prohibited defeat devices
The Commission has decided to send a reasoned opinion to Italy for not complying with its obligation to enforce emission type approval rules based on Regulation (EC) 715/2007. Under this Regulation, Member States are required to lay down and implement rules on penalties for the use of prohibited defeat devices that hamper the efficiency of emission control systems and result in higher emissions. EU type approval legislation bans defeat devices such as software, timers or thermal windows which lead to higher NOx emissions outside of the test cycle, unless they can be justified by the need to protect the engine against damage or accident, or for the safe operation of the vehicle. The Commission is closely monitoring the enforcement of these rules by Member States. Although Italy has ordered a mandatory recall of the vehicles concerned, it has failed, according to the Commission, to apply national provisions on penalties to cases where defeat devices were installed in vehicles type-approved in Italy. The Commission opened an infringement procedure against Italy on 17 May 2017. Italy now has two months to reply and take the necessary measures, otherwise the Commission may decide to refer the case to the Court of Justice of the European Union.
3. Migration, Home Affairs and Security Union
Letters of formal notice
Fight against terrorism: Commission urges BELGIUM, ESTONIA and ITALY to ensure correct transposition of EU rules on combating terrorism
The Commission has decided to open infringement proceedings against Belgium, Estonia and Italy for failing to correctly transpose certain elements of the EU rules on combating terrorism (Directive (EU) 2017/541). These rules include provisions that criminalise and sanction terrorist-related offences, such as travelling abroad to commit a terrorist offence, returning to or travelling within the EU for such activities, training for terrorist purposes and financing terrorism. The rules also set out special provisions for victims of terrorism to ensure they have access to reliable information as well as professional and specialist support services, in the immediate aftermath of an attack and for as long as necessary. They are an important part of the EU's Counter-Terrorism Agenda. Member States had to transpose the Directive into national law by 8 September 2018. Belgium, Estonia and Italy now have two months to respond to the arguments put forward by the Commission. Otherwise, the Commission may send a reasoned opinion. Between June and November this year, the Commission had already opened infringement procedures against 19 Member States, urging them to ensure correct transposition of the Directive.
4. Justice
Letters of formal notice
Combating racism and xenophobia: Commission calls on GERMANY, HUNGARY and LUXEMBOURG to fully and correctly transpose EU law criminalising hate speech and hate crimes
The Commission has decided to open infringement proceedings against Germany, Hungary and Luxembourg as their national laws do not fully or accurately transpose EU rules on combating racism and xenophobia by means of criminal law (Council Framework Decision 2008/913/JHA). The aim of the Framework Decision is to ensure that serious manifestations of racism and xenophobia, such as public incitement to violence or hatred, are punishable by effective, proportionate and dissuasive criminal penalties throughout the European Union. At present, Germany and Hungary fail to criminalise a specific form of hate speech mentioned in the Framework Decision. In particular, the Hungarian legal framework fails to criminalise the public condoning, denial or gross trivialisation of international crimes, while the German legal system fails to criminalise the public denial or gross trivialisation of these crimes. In addition, both Hungary and Luxembourg have failed to take the necessary measures to ensure racist and xenophobic hate crimes are effectively criminalised. The Hungarian legal framework does not ensure that a racist and xenophobic motivation is considered an aggravating circumstance or that such motivation is taken into account by national courts for any crime committed. The Luxembourgish legal framework has not established any legal provision ensuring that a racist and xenophobic motivation can be taken into account by the courts when deciding on the penalties. The three Member States have two months to take the necessary measures and to address the shortcomings identified by the Commission. Failing this, the Commission may decide to take the next step in the infringement procedure, by sending a reasoned opinion. The Commission has already launched infringements on this instrument against ten Member States and continues to assess the transposition of this Framework Decision in other Member States as part of its effort to address racism and xenophobia. For more information about the measures to combat racism and xenophobia, click here.
European Arrest Warrant: Commission opens infringement procedure against FRANCE, MALTA, LATVIA, PORTUGAL and SLOVAKIA
The Commission has decided to open infringement proceedings against France, Malta, Latvia, Portugal and Slovakia as a result of their incomplete and/or incorrect transposition of the Framework Decision on the European Arrest Warrant (2002/584/JHA). The European Arrest Warrant is a simplified cross-border judicial procedure to surrender a requested person for the purpose of prosecution or executing a custodial sentence or detention order. If a judge or magistrate of any Member State issues a warrant for the arrest and detention of a suspect who has committed a serious crime, this warrant is valid in the entire territory of the EU. The mechanism is based on the principle of mutual recognition and therefore operates via direct contacts between competent judicial authorities. Operational since 1 January 2004, the warrant has replaced the lengthy extradition procedures that used to exist between EU Member States. Upon the finalization of its analysis of the transposition of the Framework Decision in France, Malta, Latvia, Portugal and Slovakia the Commission identified several conformity issues. They concern in particular non-conform transposition of optional grounds for non-execution of a European Arrest Warrant and time-limits to take a decision, whether to execute a European Arrest Warrant, as interpreted by the Court of Justice. The five notified Member States now have two months to clarify the measures taken to ensure the correct and complete implementation of the Framework Decision on the European Arrest Warrant. Up to now, the Commission sent letters of formal notice on incomplete and/or incorrect transposition to 17 Member States (Austria, Belgium, Croatia, Cyprus, Czechia, Estonia, Finland, Germany, Greece, Hungary, Ireland, Italy, Lithuania, the Netherlands, Poland, Spain and Sweden). Some of those Member States have already amended the transposing laws. More information on the European Arrest Warrant is available here.
Exchange of criminal records: Commission opens infringement procedure against BULGARIA, CYPRUS, GREECE, MALTA and PORTUGAL
The Commission has decided to open infringement proceedings against Bulgaria, Cyprus, Greece, Malta and Portugal because of their incorrect application of Framework Decision 2009/315/JHA on the exchange of criminal records information and Council Decision 2009/316/JHA establishing the European Criminal Records Information System (ECRIS). This system, established in April 2012, allows criminal records to be electronically exchanged between authorities throughout the EU. It ensures that the information is exchanged between EU countries in a uniform, fast and compatible way. It also provides judges, prosecutors and other competent authorities with easy access to comprehensive information on the criminal history of persons concerned, including in which EU countries that person has previously been convicted. It thus prevents offenders from escaping their criminal past when moving from one EU Member State to another. The Commission identified problems in Bulgaria, Cyprus, Greece, Malta and Portugal related to electronic interconnection and effective exchange of criminal records information via ECRIS, as well as notification of all new convictions and updates on the convictions to the Member State(s) of the offender's nationality. Another reason for concern are the responses for requests for information on convictions: sometimes they were not given within deadlines, at other times no responses were given at all. The five Member States notified by the Commission today now have two months to clarify the measures they have taken to ensure the correct application of these instruments in practice. You will find more information on the ECRIS system online.
Fight against fraud: Commission urges eight Member States to transpose EU rules to fight fraud against the Union's budget
The Commission has decided to open infringement proceedings against Croatia, Finland, Greece, Latvia, Luxemburg, Portugal, Romania and Spain because they did not correctly transpose correctly the EU rules on the fight against fraud to the Union's financial interests by means of criminal law (Directive (EU) 2017/1371). These rules, which are part of the Commission's overall anti-fraud strategy, protect the EU's budget by harmonising the definitions, sanctions, jurisdiction rules, and limitation periods related to fraud and other offences affecting the EU's financial interests. A proper transposition of those rules by the Member States is necessary to enable the European Public Prosecutor's Office to conduct effective investigations and prosecutions. The deadline to transpose the Directive into national law expired on 6 July 2019. In its transposition report on the Directive on 6 September 2021 the Commission identified a number of compliance issues. It shows that improvements are necessary, notably to ensure the consistent transposition of the definitions of criminal offences and the liability of – and sanctions for – legal persons and natural persons. The eight Member States notified by the Commission today now have two months to clarify the measures they have taken to ensure the correct and complete transposition of the Directive.
Reasoned opinions
EU founding values: Commission urges HUNGARY to respect the fundamental rights of non-discrimination of LGBTIQ people and freedom of expression
Today, the Commission decided to take the next step in the infringement procedure against Hungary on the disclaimer, which was imposed on a children's book with LGBTIQ content. The Hungarian Consumer Protection Authority recently obliged the publisher of a book for children, presenting LGBITQ people, to include a disclaimer that the book depicts forms of 'behaviour deviating from traditional gender roles'. The Commission considers that by imposing an obligation to provide information on a divergence from 'traditional gender roles', Hungary restricts the freedom of expression of authors and book publishers (Article 11 of the EU Charter of Fundamental Rights); discriminates on grounds of sexual orientation in an unjustified way (Article 21 of the EU Charter of Fundamental Rights), and incorrectly applies the EU rules on unfair commercial practices (Directive 2005/29/EC). The Commission opened the infringement procedure against Hungary in July 2021, by sending a letter of formal notice. After careful analysis of the reply from Hungary, the Commission considers that the concerns have not been addressed. Hungary failed to justify the restrictions imposed on the fundamental rights of non-discrimination and freedom of expression. This is why the Commission decided to send a reasoned opinion to Hungary, which now has two months to reply and remedy the situation. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.
EU founding values: The Commission calls on HUNGARY to comply with EU laws in the context of banning LGBTIQ content
The Commission has decided to send a reasoned opinion to Hungary with regard to their national rules that seek to prohibit or limit access to content that portrays the so-called 'divergence from self-identity corresponding to sex at birth, sex change or homosexuality' for individuals under 18 years of age. The Commission launched the infringement procedure by sending a letter of formal notice to Hungary on this subject on 15 July 2021. The Commission considers that these national rules run contrary to a number of EU laws, including the standards in the Audiovisual Media Services Directive for audio-visual content and the free provision of cross-border audiovisual media services as the Hungarian rules put in place unjustified restrictions that discriminate against people based on their sexual orientation and are moreover disproportionate. The Commission also raised concerns with regard to the e-Commerce Directive, as provisions of the Hungarian rules infringe the country of origin principle. The law restricts the provision of services displaying content portraying different sexual orientations to minors, including when these services originate from other Member States, and Hungary failed to justify these restrictions. The Commission believes that in these fields falling into the area of application of EU law, the Hungarian provisions also violate human dignity, freedom of expression and information, the right to respect of private life as well as the right to non-discrimination as enshrined respectively in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights. The Commission did not find the response of the Hungarian authorities to the Commission's letter of formal notice to be satisfactory. Hungary has now two months to remedy the situation and reply to the arguments raised by the Commission in the reasoned opinion. If it fails to do so, the Commission may decide to refer the case to the Court of Justice of the European Union.
Closures
Rule of law: Commission closes the infringement procedure against POLAND concerning the retirement regime for Supreme Court judges
Today, the Commission decided to close the infringement case launched on 2 July 2018 regarding the retirement regime for Polish Supreme Court judges (introduced by the Law of 8 December 2017 on the Supreme Court). On 24 June 2019, the Court of Justice rendered its final ruling in this case (C-619/18). The Court declared that Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU: first, by providing that the measure consisting in lowering the retirement age of the judges of the Supreme Court is to apply to judges in post who were appointed to that court before the law entered into force; second, by granting the President of Poland the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age. Poland has amended its legislation by removing the contested retirement regime, and there are no indications that the Supreme Court judges concerned by the contested legislation are still affected by it. Consequently, this matter has been resolved and the Commission therefore decided to close the case.
Primacy of EU law: Commission closes infringement procedure based on formal commitments of GERMANY clearly recognising the primacy of EU law and the authority of the Court of Justice of the European Union
The Commission has decided today to close the infringement procedure against Germany concerning the judgment of the German Constitutional Court of 5 May 2020, related to the Public Sector Asset Purchase Programme ("PSPP") of the European Central Bank. The Commission considers it appropriate to close the infringement, for three reasons. First, in its reply to the letter of formal notice, Germany has provided very strong commitments. In particular, Germany has formally declared that it affirms and recognises the principles of autonomy, primacy, effectiveness and uniform application of Union law as well as the values laid down in Article 2 TEU, including in particular the rule of law. Second, Germany explicitly recognises the authority of the Court of Justice of the European Union, whose decisions are final and binding. It also considers that the legality of acts of Union institutions cannot be made subject to the examination of constitutional complaints before German courts but can only be reviewed by the Court of Justice. Third, the German government, explicitly referring to its duty of loyal cooperation enshrined in the Treaties, commits to use all the means at its disposal to avoid, in the future, a repetition of an 'ultra vires' finding, and take an active role in that regard.
5. Energy and climate
Reasoned opinions
Renewable energy: Commission urges BULGARIA and SLOVAKIA to transpose the revised Renewable Energy Directive
The Commission decided today to send reasoned opinions to Bulgaria and Slovakia for failure to transpose Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources. This Directive provides the legal framework for the development of renewable energy across all sectors of the EU economy and sets a binding renewable energy target for the EU for 2030 of at least 32%. Furthermore, it includes new provisions to enable citizens to play an active role in the development of renewables – especially in renewable energy communities and self-consumption of renewable energy. In addition, it sets an increased 14% target for the share of renewable fuels in transport by 2030 and strengthens criteria for ensuring bioenergy sustainability. Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2021. Neither Bulgaria nor Slovakia have informed the Commission of the provisions adopted to comply with it. As a result, a letter of formal notice was sent to both Member States in July 2021 and the reasoned opinions are now sent considering no transposition measures have been communicated to the Commission to this day. In the absence of a satisfactory response within two months, the Commission may refer the cases to the Court of Justice of the European Union.
Energy efficiency: Commission urges GREECE and ROMANIA to transpose the amending Energy Efficiency Directive
The Commission decided today to send reasoned opinions to Greece and Romania for failure to transpose the amending Energy Efficiency Directive (Directive (EU) 2018/2002) into their national legal order. This Directive seeks to establish a common framework of measures to promote energy efficiency and sets a binding energy efficiency target for the EU for 2030 of at least 32,5%. Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 25 October 2020 at the latest. Neither Greece nor Romania have informed the Commission of the provisions adopted to transpose the Directive. As a result, a letter of formal notice was sent to both Member States in November 2020 and the reasoned opinions are now sent considering no transposition measures have been communicated to the Commission to this day. In the absence of a satisfactory response within two months, the Commission may refer these cases to the Court of Justice of the European Union.
Basic safety standards: Commission calls on LATVIA to fully transpose EU radiation protection legislation
The Commission decided today to send a reasoned opinion to Latvia requesting the complete transposition of the revised Basic Safety Standards Directive (Council Directive 2013/59/Euratom) into its national legislation. Member States were required to transpose the Directive by 6 February 2018, but the Commission considers that Latvia has still not transposed some of its requirements. The Directive, which modernises and consolidates EU radiation protection legislation, lays down basic safety standards to protect members of the public, workers and patients against the dangers arising from exposure to ionising radiation. It also includes emergency preparedness and response provisions that were strengthened following the Fukushima nuclear accident. Latvia has two months to address the shortcomings identified by the Commission. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.
6. Taxation and Customs Union
Letter of formal notice
Taxation: Commission requests SPAIN to change its rules on taxation of non-resident taxpayers' capital gains where they are paid in instalments
The Commission has decided to open infringement proceedings against Spain, requesting it to align its rules on the taxation of capital gains obtained within the country by non-resident taxpayers with the free movement of capital (Article 63 TFEU). In the case of capital gains, which result from a transfer of assets when the payment is deferred longer than a year or is paid in instalments in a period longer than a year, resident taxpayers have the option to pay the tax when the capital gains accrue or to defer it and pay it proportionally based on the cash flow. However, non-resident taxpayers are not offered this option of deferral and have to pay the tax when the capital gains accrue at the time of the transfer of the assets. Spain has two months to reply to the arguments raised by the Commission after which the Commission may decide to send a reasoned opinion.
Reasoned opinions
Taxation: Commission calls on BELGIUM to amend its legislation to correctly transpose the controlled foreign company rules of the EU Anti-Tax Avoidance Directive
The Commission has decided to send a reasoned opinion to Belgium on the grounds of incorrect transposition of the Anti-Tax Avoidance Directive (Council Directive (EU) 2016/1164). Contrary to Article 8(7) of the Directive, Belgian law does not allow a taxpayer to deduct from its tax liability the tax paid by a controlled foreign company in the state of tax residence. If Belgium does not act within the next two months, the Commission may decide to refer the case to the Court of Justice of the European Union.
Taxation: Commission calls on LUXEMBOURG to amend its legislation to correctly transpose the non-deductibility of interest payments rule set by the EU Anti-Tax Avoidance Directive
The Commission has decided to send a reasoned opinion to Luxembourg on the grounds of incorrect transposition of the Anti-Tax Avoidance Directive (Council Directive (EU) 2016/1164). Article 4(7) of the Directive provides for a derogation of the measures limiting the deductibility in the corporate tax base of interest payments in favour of financial undertakings. The Directive includes an exhaustive list of entities considered as financial undertakings for this purpose in its Article 2(5). However, Luxembourg grants the derogation also to securitization entities, which are not financial undertakings within the meaning of the aforementioned provision. Luxembourg has two months to respond after which the Commission may decide to refer the case to the Court of Justice of the European Union.
Taxation: Commission urges SWEDEN to amend its rules on taxation of dividends to non-resident public pension institutions
The Commission has decided to send a reasoned opinion to Sweden regarding its legislation on taxation of dividends paid to public pension institutions. Whereas Swedish public pension funds are, as state agencies, entirely exempt from tax liability, dividends paid to comparable non-resident public pension institutions are subject to a withholding tax, commonly at a rate of 15%, as resulting from the tax treaties concluded between Sweden and other EU/EEA countries. The Commission deems that such a fiscal scheme under which dividends paid to foreign public pension institutions are subject to less favourable treatment than similar distributions in purely domestic situations infringes the free movement of capital (Article 63(1) TFEU and Article 40 of the EEA Agreement). Sweden has two months to respond after which the Commission may decide to refer the case to the Court of Justice of the European Union.
Taxation: Commission urges GERMANY to take the necessary measures to adapt its IT system in order to allow for automated exchange with other Member States of certain information related to the application of VAT legislation to call-off stock arrangements
The Commission has decided to send a reasoned opinion to Germany for failing to fulfil its obligation to grant other Member States automated access to the information concerning call-off stock arrangements via the electronic system VIES (VAT Information Exchange System). The IT system requirements for call-off stock arrangements aim at allowing Member States to exchange more easily electronic data with each other with a view to fighting fraud. Call-off stock arrangements is one of the VAT simplifications referred to as "quick fixes" that entered into force on 1 January 2020. The call-off stock arrangements require, amongst others, that Member States adapt their IT systems in order to allow for the exchange of information between Member States as required by Council Regulation 904/2010. However, the lack of necessary adaptations on the side of Germany makes it more difficult for other Member States to carry out the controls necessary to prevent VAT fraud or tax evasion. If Germany does not act within the next two months, the Commission may decide to refer the case to the Court of Justice of the European Union.
Taxation: Commission urges CYPRUS to transpose new VAT e-commerce rules
The Commission has decided to send two reasoned opinions to Cyprus for failing to notify the measures for the transposition into national law of Directive (EU) 2017/2455 and Directive 2019/1995 ("VAT e-commerce" Directives). The new rules are intended to simplify VAT for companies and consumers involved in cross-border online sales within the EU and to create a fairer environment for EU sellers by removing the VAT exemption for low-value imports from outside the European Union. Member States should have adopted and published the necessary national provisions by 30 June 2021. If Cyprus does not act within the next two months, the Commission may decide to refer the case to the Court of Justice of the European Union.
7. Mobility and Transport
Letters of formal notice
Rail transport: Commission calls on CZECHIA to duly implement EU rules on the Single European Railway Area
The Commission has decided to open two infringement procedures against Czechia for failing to comply with EU rules on the Single European Rail Area. Both letters refer to the rules stipulated in Directive 2012/34/EU, which aims to create a Single European Rail Area, notably on competition issues, regulatory oversight and financial architecture of the railway sector, the power of national regulators, investment, and fair and non-discriminatory access to rail infrastructure and rail related services. Czechia failed to fully and correctly transpose some of the Directive's provisions, and now has two months to reply to the arguments raised by the Commission. In the absence of satisfactory responses, the Commission may decide to send reasoned opinions.
Rail transport: Commission calls on IRELAND to ensure independence of entity exercising essential functions in the Irish rail market
The Commission decided today to open an infringement procedure by sending a letter of formal notice to Ireland on the incorrect application and transposition of EU rules on the Single European Rail Area. The Commission considers that Ireland has failed to ensure full independence of the entity exercising the essential functions (i.e. charging and capacity allocation) in the Irish rail market, as foreseen in the Directive (EU) 2012/34/EU on a Single European Rail Area, as amended by Directive (EU) 2016/2370. Ireland now has two months to reply to the arguments raised by the Commission. In the absence of a satisfactory response, the Commission may decide to send a reasoned opinion.
Reasoned opinions
Road transport: Commission calls on HUNGARY to accept European Electronic Toll Service (EETS) providers in its market
The Commission today decided to send a reasoned opinion to Hungary, for its failure to fulfil its obligations under Directive 2004/52/EC, Decision 2009/750/EC and Directive (EU) 2019/520. Specifically, Hungary has failed to ensure that toll chargers accept EETS providers on their toll domains, and that the relevant accreditation processes for EETS providers in its market are launched and concluded. The European rules play a key role in the creation of a common market for EETS services in Europe, as well as in ensuring interoperability for users. They require the conclusion of contractual negotiations between the Toll Chargers and the service providers without delay to safeguard fair and non-discriminatory access to the tolling market for EETS providers.
In December 2020, the Commission sent a letter of formal notice and is now following up with a reasoned opinion. Hungary has two months to reply to the arguments raised by the Commission. Otherwise, the Commission may decide to refer Hungary to the Court of Justice of the European Union.
Rail transport: Commission calls on AUSTRIA, GREECE, LUXEMBOURG and SPAIN to correctly transpose and apply several provisions related to the Single European Rail Area
The Commission today decided to send reasoned opinions to Austria, Greece, Luxembourg and Spain urging them to correctly transpose and apply Directive 2012/34/EU. The provisions relate to access to rail infrastructure, including charging, to service facilities and to the regulatory bodies and their functions. The Directive also foresees the conclusion of a contractual agreement between the competent authority and the infrastructure manager. As Austria Greece, Luxembourg and Spain have yet to comply with their obligations, the Commission is now sending a reasoned opinion to each Member State. In separate infringement cases, reasoned opinions have also been sent to Austria and Luxembourg as several Directive 2012/34/EU articles have not been transposed into national law. The Member States have two months to reply and take the necessary measures, otherwise the Commission may refer the cases to the Court of Justice of the European Union.
Referrals to the Court of Justice
Rail Transport: Commission refers GERMANY to the Court of Justice of the European Union for excluding its regional transport networks from EU rail safety and interoperability requirements
The Commission today decided to refer Germany to the Court of Justice of the European Union for failing to apply the rail safety and interoperability requirements set out in Directives 2004/49/EC and 2008/57/EC to its regional transport networks. The Commission considers that this failure constitutes obstacles to the Single European Rail Area as the EU rail safety and interoperability acquis is not in use for around 16% of the entire German rail network. More information is available in the press release.
8. Financial Stability, Financial Services and Capital Markets Union
Letters of formal notice
Commission urges AUSTRIA, SWEDEN, BELGIUM, LUXEMBOURG, PORTUGAL, ROMANIA and ITALY to terminate Bilateral Investment Treaties (BITs) with other EU Member States
The Commission has decided to open infringement proceedings against Austria, Sweden, Belgium, Luxembourg, Portugal, Romania and Italy for failing to effectively remove from their legal orders the intra-EU Bilateral Investment Treaties (BITs) to which they are contracting parties, so that they cease to produce any legal effects. It has been the Commission's long-standing position that BITs between EU Member States constitute a parallel treaty system overlapping and conflicting with Union law, thereby preventing its full application. Following the judgment of the Court of Justice of the European Union in Achmea (C-284/16), all Member States committed in 2019 to terminate their intra-EU BITs in a coordinated manner by means of either plurilateral agreementor expedient bilateral terminations. The Commission notes that Austria and Sweden did not sign the plurilateral agreement with other Member States and have not finalised the bilateral termination of their intra-EU BITs. Meanwhile, Belgium, Luxembourg, Portugal, Romania and Italy signed the plurilateral agreement in May 2020, but have not yet completed its ratification process, necessary to ensure legal certainty for investors and businesses. The Commission urges the above mentioned Member States to urgently take all necessary action to remove the intra-EU BITs from their legal order, bearing in mind their incompatibility with Union law. Without a satisfactory response from them within two months, the Commission may decide to address reasoned opinions. In addition, today, the Commission has sent a complementary reasoned opinion to Sweden for failing effectively to ensure that its Bilateral Investment Treaty (BIT) with Romania ceases to produce legal effects. Although Sweden removed the BIT from its legal order formally and unambiguously via mutual agreement with Romania, it has failed to ensure the required degree of legal certainty for investors and businesses, as it did not eliminate in practice all legal effects that the BIT had produced since its incompatibility with Union law first arose. This has enabled arbitral tribunals to take their own view as to the validity of the BIT, so far upholding its applicability and accepting jurisdiction based on its provisions. The Commission urges Sweden to take all necessary actions to ensure that its BIT with Romania ceases to produce legal effects, bearing in mind the incompatibility of the BIT with Union law. Without a satisfactory response from Sweden within the next two months, the Commission may decide to refer the case to the Court of Justice of the European Union.
Reasoned opinions
Commission urges ITALY to complete the transposition of the Mortgage Credit Directive and open up its market for credit intermediaries
The Commission has decided to send a reasoned opinion to Italy on the grounds of incomplete transposition of the Mortgage Credit Directive (2014/17/EU). In particular, the Commission requests Italy to adopt and notify the provisions on the freedom of establishment and free movement of services of credit intermediaries, as well as on their supervision. The Directive aims to increase consumer protection in mortgage lending and to foster competition by, amongst other aspects, opening national markets to credit intermediaries. Enhanced competition should benefit consumers through more choice and lower cost. The deadline for its transposition into national law was 21 March 2016. Italy now has two months to remedy the issue otherwise the Commission may decide to refer the case to the Court of Justice of the European Union.
Commission calls on BULGARIA, SPAIN, LATVIA, LITHUANIA, MALTA and PORTUGAL to update the Capital Requirements Directive with reference to investment firms
The Commission has today decided to send reasoned opinions to Bulgaria, Spain, Latvia, Lithuania, Malta and Portugal, on the grounds of failure to notify the national measures transposing the Capital Requirements Directive V (Directive (EU) 2019/878-CRD V) with reference to investment firms. This Directive is part of the regulatory framework that was put in place to create a safer and sounder prudential framework for credit institutions and for investment firms. In the cases at hand, the failure to notify transposition measures concerns in particular those investment firms falling within the scope of application of the CRD V. While 28 December 2020 was set as the transposition deadline of the rules applicable to credit institutions, with respect to the investment firms it was considered appropriate to set the date of transposition on 26 June 2021 to ensure a timely consistent application of the legal framework applicable to all investment firms (Directive (EU) 2019/2034–the Investment Firms Directive). Up to date, the concerned Member States have not notified any transposition measures. Failure to transpose these rules leaves the regulatory framework applicable to large investment firms unfinished, affecting markets, firms and investors. Without a satisfactory response from these Member States within two months, the Commission may decide to refer the matter to the Court of Justice of the European Union.
Commission calls on BULGARIA, SPAIN, and ITALY to fully transpose the Investment Firm Directive into national laws
The Commission has today decided to send reasoned opinions to Bulgaria, Spain and Italy as they failed to notify the national implementing measures transposing the Investment Firms Directive (Directive (EU) 2019/2034). Together with the Investment Firm Regulation, this Directive creates a more bespoke prudential framework designed to better reflect investment firms' activities' nature, size and complexity. As more detailed rules only apply as of certain size and thresholds reached by the investment firms, their compliance costs with the new framework should be lower. This in turn would lead to lower charges for retail investors. The deadline for the transposition of these rules into national law was 26 June 2021. The concerned Member States have not notified any transposition measures to date. Without a satisfactory response from these Member States within two months, the Commission may decide to refer the matter to the Court of Justice of the European Union.
Commission urges the NETHERLANDS, ITALY, LITHUANIA, ESTONIA, FINLAND, LATVIA, BULGARIA, GREECE and SPAIN to update national laws exempting entities authorised under the Regulation on European Crowdfunding service providers
The Commission has today decided to send reasoned opinions to the Netherlands, Italy, Lithuania, Estonia, Finland, Latvia, Bulgaria, Greece and Spain on the grounds of failure to notify the national measures transposing Directive 2020/1504, which amends the Directive on markets in financial instruments (Directive 2014/65/EU). The purpose of this Directive is to exempt entities authorised under the newly established Regulation on European Crowdfunding Service Providers (ECSP) from requirements under Directive on markets in financial instruments, and to ensure that all crowdfunding platforms within the scope of the Regulation are subject to the same, coherent set of rules, wherever they operate in the EU. This will benefit both investors, through more investment opportunities and coherent protection measures across the EU, and companies in need of early-stage financing, leading to more innovation and growth in the EU. The deadline for the transposition of these rules into national law was 10 May 2021. To date, the concerned Member States have not notified any transposition measures. Without a satisfactory response from these Member States within two months, the Commission may decide to refer the matter to the Court of Justice of the European Union.
Commission requests ITALY, BULGARIA AND CZECHIA to communicate all measures necessary to implement the ESAs review Directive (amending Solvency II, MiFID and AMLD4 Directives)
The Commission has today decided to send reasoned opinions to Italy, Bulgaria and Czechia for failure to communicate any required national measures to implement the European Supervisory Authorities (ESAs) Review Directive amending Solvency II, MIFID and AMLD4 Directives (Directive (EU) 2019/2177). This Directive complements the changes in the ESAs review by giving new competences to EBA in relation to anti-money laundering (AML) rules, by empowering it with a role of coordinating AML supervisors at EU level. It also confers new powers to EIOPA to set up cooperation platforms to ensure close collaboration between the supervisory authorities of the home and host Member States, in case of cross-border insurance activities. It also gives more powers to ESMA in relation to Data Reporting Services Providers (DRSPs). The deadline for the communication of the measures was 30 June 2021. As no measures have been notified by the deadline, letters of formal notice were sent on 23 July 2021. Member States had two months to react and up to today, they have still not notified any relevant measures to the Commission. Italy, Bulgaria and Czechia have now two months to act and take the necessary measures; otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union.
9. Digital economy
Letters of formal notice
The Commission calls on ROMANIA to comply with EU copyright rules
The Commission has decided to send an additional letter of formal notice to Romania on the grounds that their national rules on the management of rights in musical works run contrary to EU copyright rules (Directive 2001/29/EC) on the harmonisation of certain aspects of copyright and related rights in the information society, and Directive (EU) 2019/790 on copyright in the Digital Single Market). The Commission first opened the infringement procedure by sending a letter of formal notice to the Romanian authorities on 8 December 2017 when the Commission disputed the use of mandatory collective management for the communication to the public of musical works. Romania amended its legislation in January 2019 to provide for collective licensing with an extended effect. The Commission considers that this amendment does not fully address the infringement to EU law identified initially. Furthermore, the new rules do not comply with article 12 of Directive (EU) 2019/790, which harmonises the conditions under which Member States may provide for mechanisms of collective licensing with an extended effect. The Romanian authorities have two months now to reply to the arguments raised by the Commission. Otherwise, the Commission may decide to send a reasoned opinion.
Reasoned opinions
Media freedom: The Commission calls on HUNGARY to comply with EU electronic communications rules
The Commission decided to send a reasoned opinion to Hungary regarding a decision made by the Hungarian Media Council to reject Klubradio's application for the use of radio spectrum on highly questionable grounds. The conditions attached to the use of radio spectrum and procedures to grant, prolong, renew or revoke those rights are subject to EU telecoms rules, set out in the European Electronic Communications Code (Directive (EU) 2018/1972). Key elements of these rules are the principles of proportionality and non-discrimination. The Commission believes that the decisions of the Hungarian Media Council to refuse renewal of Klubradio's rights were disproportionate and non-transparent and thus in breach of EU law. The Commission also considers that the Hungarian national media law has been applied in a discriminatory way in this particular case. The Commission opened the infringement procedure by sending a letter of formal notice on 9 June 2021 to the Hungarian authorities, and the response sent by the Hungarian authorities did not satisfy the concerns raised by the Commission. If Hungary does not bring its decision in line with EU telecoms rules within 2 months, the Commission may decide to refer the case to the Court of Justice of the European Union.
Source: European Commission