This article aims to present the particularities of the administrative practices as infringements of the law of the European Union. Even if the failure to transpose a directive within the deadline is the most common kind of infringement, administrative practices contrary to the law of the European Union can also lead to an action for failure to fulfil an obligation. First of all, we will analyse the relationship between the law of the European Union and the national law, in order to highlight the principle of primacy of the law of the European Union. Secondly, we will refer to the action for failure to fulfil obligations, by generally presenting the principle types of infringement of the law of the European Union. Last but not least, we will analyse the features of the administrative practices as an infringement of the law of the European Union, by focusing on the main case law of the Court of Justice of the European Union.

1. The relationship between the law of the European Union and the national law

Starting with the European Coal and Steel Community, founded in 1951[1] and based on the Schuman Plan, the European Union (EU) has evolved into a strong international organization with competences in various domains. At the core of the European construction there is the principle of conferred powers from Member States to the EU[2].

According to the Treaty on the Functioning of the European Union (TFEU), EU has three different kinds of competences: exclusive competences, shared competences and supporting competences. Article 2 paragraphs (1)-(2) TFEU states that if the Union has exclusive competence[3] in a specific area, as a rule, only the Union may legislate and adopt legally binding acts in that particular field. If the Union has the competence shared[4] with the Member States in a specific area, both the Union and the Member States are able to legislate and adopt legally binding acts in that area. In a situation of shared competences, the competences of the EU shall prevail, but only with the respect of the principles of subsidiarity and proportionality[5].

According to Article 5 paragraph (3) of the Treaty on the European Union (TEU), the principle of the subsidiarity consists in the fact that the action of the EU is justified only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather be better achieved at EU level. Therefore, the principle of subsidiarity is not incident when the action cannot be sufficiently achieved by both the EU and the Member States or in the situation when the Member States would achieve a good result for the action, but the EU would obtain a better result[6]. The principle of subsidiarity shows its importance as an instrument to share the Union’s powers between the EU legislator and the national legislator and to increase the focus on national parliaments in the EU[7].

Generally speaking, the principle of proportionality requires the existence of a “reasonable relationship between a particular objective and the administrative or legislative means used to achieve that objective”[8]. The principle of proportionality, according to Article 5 paragraph (4) TEU, asks that the actions of the Union do not exceed what is necessary to achieve the objectives of the Treaties. Therefore, this principle regulates the way and intensity of the Union’s action[9].

At the core of the relationship between the national law of a member state and the EU Law lies the principle of primacy of the European Law. This principle states that if there is a conflict between the law of the European Union and the law of the Member States, the EU law prevails. It is important to mention that primacy and supremacy are two different concepts. The principle of supremacy implies the existence of a single hierarchically legal order and, while talking about the law of the European Union and the national law of the Member States, we refer to two different legal orders[10]. However, many specialists use the term “supremacy” and not “primacy”, or use both of them interchangeably[11]. The Court of Justice of the European Union uses in general the term “primacy” in its case law, there are only two rulings(Case 14/68, Wilhelm v Bundeskartellamt and Case 34/73, Fratelli Variola v Amministrazione delle Finanze) in which it is found the word “supremacy”, but only in the English translation of the cases[12].

The Court of Justice of the European Union (former Court of Justice of the European Economic Community) has firstly created this principle in the Case C-6/64, Costa/E.N.E.L (1964)[13]. In this case, the Italian state nationalized all electricity production and distribution units, forming the national electricity society E.N.E.L. The lawyer Flaminio Costa, as a shareholder at one of the nationalized societies, has challenged the nationalization act before the Italian court, which referred to the Court of Justice of the European Union for a preliminary ruling. The question addressed was whether the nationalization act is compatible with article 92(102), article 88(93), article 53, article 31(37) of the former Treaty establishing the European Economic Community (TEEC). The Italian state sustained that the court from Milano is obliged to apply the national law and cannot refer to article 177 of the TEEC (nowadays article 267 of the TFEU).

The Court of Justice of the of the European Economic Community [14] stated that the member states have limited their sovereign rights and have created a body of law which binds them, by creating the European Economic Community.

The Court added that, in according to the terms and the spirit of the TEEC, it is impossible for the Member States to give primacy to unilateral and subsequent measures over a legal system accepted by them, otherwise the obligations undertaken under the treaty establishing the community would not be unconditional.

As we can see, the European Court used a theological and not textual interpretation, with focus on the objectives of the European Union and on the spirit of the treaties[15]. Summarily, the Court has used the following arguments to sustain the primacy of the law of the European Union[16].

Firstly, the Court used the contractualist argument. According to this, the EU law has primacy over the national law of a certain member state given the agreement concluded by the states the moment they became members of the European Union.

The second argument is the functional one, according to which the objectives of the treaties (the integration, cooperation) can not be achieved if the primacy of the European Law is not respected.

The third argument used by the Court is the egalitarian one. The reasoning behind this is that if a member state prevails of the law of the European Law in a unilateral way, this leads to discrimination between the member states in applying the law of the European Union.

The final arguments have an analytical nature. The Court considered that the obligations assumed by the member states by the treaties would be only eventual, instead of unconditional, if they were subject to some subsequent legislative acts of the states. So, as the doctrine underlined[17], the principle applicable in national and international public law “lex posteriori derogat priori” does not find its application in the relationship between national law and the law of the European Union. Even if the community legal order was born on the land of public international law and was based on the agreement between member states, it was born as an autonomous legal order[18].

The Court of Justice continued to reiterate the principle of primacy of the law of the European Union in case C-11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel[19]. In this case, the Court of Justice ruled that the recourse to the provisions of national law in order to analyse the validity of measures adopted by the institutions of the community would have a negative effect on the efficacy of the community law. The Court concluded that: “Therefore the validity of a community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”.

The ruling from Internationale Handelsgesellschaft is of major importance because the Court affirmed for the first time the that primacy of the law of the European Union refers not only to ordinary laws from a Member State, but also to their supreme law. Also, the Court stated that the protection of the fundamental rights forms part of the general principles of law protected by the court, rights coming from traditions common to Member States[20].

Another case of great impact regarding the primacy of the law of the European Union is C-106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA[21]. In this case, the national court asked the Court of Justice whether the national law has to be ignored without waiting to be declared as unconstitutional by the national competent authority.

The court of justice ruled that in the light of the principle of the precedence of community law, a member state can not adopt valid new national legislative measures if they are incompatible with community provisions. The Court added that a national court is obliged to give full effect to those provisions of the community law and it has to refuse on own motion to apply any conflicting provision of national legislation (even if adopted subsequently), without being necessary for the national court to await that a constitutional body declare unconstitutional that particular provision .

As a result of the Simmenthal ruling, a national court must refuse to apply a national law which is not in accordance with the law of the European Law, even if that law was not declared unconstitutional by the Constitutional Court. The Constitutional Courts were facing therefore a defeat regarding their competences in relation to the law of the European Union.

The Simmenthal principle was extended even more in Case C-118/00, Gervais Larsy v Institut national d’assurances sociales pour travailleurs indépendants (INASTI), in which the Court of Justice ruled that not only the national instances, but also the administrative bodies must put aside the national conflictual laws in order to ensure the primacy of the law of the European Law[22].

The principle of the primacy of the law of the European Union has been underlined also in C-224/97, Erich Ciola v Land Vorarlberg[23]. The Court ruled that all administrative bodies, including the decentralised authorities have the obligation to not apply any conflicting provision of national law, just like the national courts. The Court highlighted that the administrative bodies have to refuse to apply any conflicting legislative or administrative provisions (general rules or individual administrative decisions).

In case C-453/00, Kühne & Heitz NV, the Court of Justice had to analyse whether an administrative body is obliged to ignore a final decision in order to ensure the enforcement of the law of the European Union[24]. The Court of Justice ruled that the administrative body has to re-examine the decision in order to take into consideration the interpretation given by the court of justice. Therefore, the law of the European Union has primacy also over administrative acts.

An author[25] who is making a research on whether the national administrative authorities are willing to ignore national law in conflict with the law of the European Union, underlined that the German administrative authorities are reserved in doing so, unless they have an instruction from the supervisory authority. The same author considered that not applying the national law doesn’t match with the role of the administrative bodies as executive power and could lead to non-uniform application of the law and cause legal uncertainty[26].

It is important to mention that the principle of primacy of the European Law does not have an absolute character, the member states being able to make a reservation while applying the certain provisions of the European Law if these provisions put in danger the major interests of the Member States[27].

The principle of primacy of the law of the European Law was created by the case of the Court of Justice of the European Union and was not, until recently, included in the treaties. The first attempt to give a textual recognition of this principle was by Article I-6 of the Treaty establishing a Constitution for Europe. According to this article: “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.”

Given the failure of adopting the Treaty establishing a Constitution for Europe, the above mentioned article was included in the Treaty of Lisbon by the Declaration concerning primacy. The text of the declaration has the following form: “The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.” The declaration also contains the Opinion of the Council Legal Service: “It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 [1] there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

[1] “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”

The declaration is ambiguous concerning the phrase “the law of the Member States”, without specifying whether the law of the European Union has primacy also over the Constitution of the Member States. By using an extensive interpretation, in the light of the settled case law of the Court of Justice of the European Union, according to which the law of the European Union has also primacy over the constitutions of the Member States, would result that the Declaration aimed to underline also this[28]. Given the fight of the constitutional courts to affirm their primacy, it is difficult to believe that this conclusion will be easily accepted by them.

2. Infringement of the EU Law

In the previous chapter we have underlined that every Member State must respect the provisions of the EU Law and, if a certain domain is regulated by both the national law and the EU law, the last one shall prevail, according to the principle of primacy of the EU Law. As every legal system, the EU legal system has provided in its treaties the procedures and the sanctions applied in the situation when a Member State violates its obligation provided by the EU law. The action for failure to fulfil obligations regulated by Article 258 of the TFEU aims to establish if a Member State has failed to meet the obligations provided by EU Law.

This action represents the existing dualism between the Member States and the institutions of the European Union. On one side the Member States are the “creators” of the treaties and of the original law of the European Union, and on the other side they are obliged to comply with their obligations, otherwise the institutions of the European Union have the means to oblige the Member States to fulfil their obligations[29]. Through this action, the Commission watches that the Member States won’t exercise again on their own the competences, attributes of sovereignty which they renounced in favour of the European Union[30]. Therefore, this action aims to highlight the Commission’s role as guardian of the treaties.

According to article 258 of the TFEU, “If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”.

The doctrine[31] emphasized that the role of the procedure provided for in Article 258 TFEU is not only to ensure that Member States comply with European Union law, but also to help determine the extent and meaning of Member States’ obligations in the event of disagreement on the interpretation of a provision of European law. Once brought before the Court, the alleged infringement will be examined by the European court in terms of compliance of that action, inaction of the state or its administrative practice with the provisions and principles of European law.

We note that the procedure established by art. 258-260 TFEU has a purpose similar to the preliminary rulling proceedings provided by art. 267 TFEU in the light of the role of the CJEU, namely that of interpreting a European legal text in order to verify the compatibility of a national law, an action of a body of a Member State or an administrative practice with the European law.

As it results, the object of this action is establishing the failure of the Member States to fulfil their obligations provided by EU law[32]. The obligations referred by the EU Law can be either of result or of diligence, either positive or negative, either determined or they can only be precisely determined by resorting to subsidiary legislation[33]. Therefore, a Member State can he held responsible under Article 258 TFEU for the infringement of any kind of obligation provided by the EU Law. Also, the obligations can be provided either by the rules of primary or secondary law or may concern the general principles of law and the jurisprudence of the CJEU[34].

Depending on the violated obligation, the infringements of the EU law can be classified as such: the breach of the obligation of loyal cooperation provided for in Article 4 paragraph 3 of the TEU, inadequate implementation of EU law, violations that interfere with the EU’s external relations, the action of the courts of a Member State and systemic and persistent violations or generalized practices[35].

Article 4 paragraph 3 of the Treaty on European Union establishes the obligation of loyal cooperation as follows: “Pursuant to 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 fulfilment 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”. The infringement of this obligation is often invoked by the Commission when the authorities of a Member State refuse or do not answer to its request to provide information[36]. The obligation of loyal cooperation implies positive obligation for the Member States not only in the sense of avoiding the infringement of the EU Law, but also in the sense of preventing other people from violating the provisions of the treaties[37].

When it comes to the inadequate implementation of EU Law, the incorrect or late implementation of a directive are the most common cases of infringement[38]. The higher probability of infringements in matter of transposing the directives comes from the fact that 80% of all EU Law is represented by directives and the directives are only binding as to the result to be achieved, the Member States having the liberty to choose how they will implement the directives, therefore mistakes can be made in the implementation of the legislation[39].

In the light of the increased participation of the European Union in the field of international relations, the Commission initiated several actions for failure to fulfil obligations due to the conduct of the Member States that violated the international agreements, binding for the European Union, or their obligation of loyal cooperation, by putting in danger the objectives of the European Union in the external relationships domain[40].

Non-compliance of the EU Law by the actions of the national courts has not been the object of a ruling based on Article 258 TFEU, although the actions of the national courts are implied in various infringements. Moreover, the CJEU affirmed in various occasions that the Member States can be found liable even for the actions of their constitutionally independent bodies[41].

Last, but not least, the Member States can be found liable for the actions of their administrative bodies. In the following, we are going to discuss the main case-law regarding administrative practices as infringement of EU Law.

3. Administrative practices as infringement of the EU Law

In the previous chapter, we have presented summarily the action for failure to fulfil obligations. Administrative practices as an infringement of the EU Law are not so debated by the doctrine and are not as popular as the failure to transpose a directive within the prescribed time, but they can lead to the same negative result consisting in pecuniary sanctions for the Member States.

The Court of Justice of the European Union has examined in its case law the conformity with the EU law of the administrative practices of the Member States and has established the features that a state’s actions or inactions must have in order to be considered as administrative practices in breach of EU law. In the next lines, we are going to highlight the main aspects that the CJEU analyses regarding an alleged practice that violates the EU law.

First of all, as we have pointed out before, the infringement may consist in an action contrary to EU law, but may also consist in an omission to act, while the most common situation is the failure to fulfil an obligation within the prescribed period[42]. Therefore, an administrative practice contrary to EU law can take either an active form, consisting in an action in breach of the EU law, or a passive form, representing omissions contrary to the EU law of a Member State.

It is necessary to determine which are the institutions, authorities, bodies of whose actions or inactions may represent an administrative practice which leads to the breach of its obligations by a Member State. So, the question that arises is whether a member state can be held responsible only for the activities of a central body ( e.g. Govern, ministries) or if the actions of an institution at a local level can be sufficiently enough to represent an administrative practice according to the CJEU case law.

The CJEU has noted in its case law[43] that a Member State is responsible for the actions and inactions of all its institutions, including those arising from an institution that is constitutionally independent. Therefore, whether there are decentralized bodies, legal persons governed by public law or legal persons governed by private law whose activity is controlled by the State, that Member State is liable for their conduct which infringes the provisions of EU law[44]. The administrative practice of a state, in the view of the CJEU, consists in the actions of each public institution, whether it plays a role in the central public administration, or a role in the local public administration, so that the compliance with EU law must be reflected in the work of each public actor.

Even if it has implemented the law correctly, a Member State will be found to be in breach of EU law if its administrative practice is contrary to Union law, when its practice is constant and widespread[45]. Therefore, it is not sufficient for a Member State to transpose the EU law, the EU law must be reflected in the administrative practice of that Member State.

A certain degree of consistency and generality is the characteristic that is primarily analyzed by the CJEU when is called upon to rule on an infringement of EU law through administrative practice. In a case against France[46], the Court held for the first time that in order that the administrative practice of a state constitutes a violation of European law, it must be constant and widespread.

In that case, the Commission had brought an action against France for unjustifiably refusing to import stamping machines from another Member State, in breach of its obligation under Article 28 of the former Treaty of the European Communities. As a first step, the Commission complained about both the French legislation on the use of such machines and the administrative practice of the administrative authorities in France. In view of the fact that France subsequently amended its legislation, the Commission sought to examine the compatibility with Community law of the French post office’s practice in respect of a company, the main producer in the United Kingdom which had tried unsuccessfully for more than 10 years to obtain approval to market its products in France. The Advocate General emphasized that although the practice of the French post office relates only to a particular company, that practice constitutes a breach of the Treaty on European Communities. Embracing the opinion of the Advocate General, the Court held that the unjustified refusal to approve stamping machines from other Member States infringed Article 28 of the former TEC. Therefore, isolated or singular errors of the administration of a Member State are not sufficient to represent an administrative practice contrary to EU law, unless they are evidence of a much deeper general problem[47]. As a result, even if the Court has to analyse just one particular situation of alleged infringement, that situation must be the proof of a violation having a general character, in order that a Member State be found liable for its administrative practices.

The consistent character and general nature of an administrative practice have been analysed also in Case C-387/99[48], Commission versus Germany. The Commission sustained that by classifying as medicinal products vitamin and mineral preparations, lawfully produced or marketed as food supplements in the other Member States, where they contain three times more vitamins and minerals than the daily amount recommended by the German Food Association, the Federal Republic of Germany has proved an administrative practice contrary to former Article 30 of the EC Treaty. The Commission insisted on the fact that the infringement regards the administrative practice of automatically classifying a preparation as a medicinal product and not a singular classification. The Court reiterated its case-law, highlighting that the administrative practices can be the subject-matter of an action for failure to fulfil obligations if they are consistent and have a general nature and held that in this particular situation, the administrative practices of the German authority violated the EU Law.

In another important case[49], the Commission initiated proceedings against Ireland on the basis of twelve individual complaints concerning the disposal of waste which had apparently infringed Directive 91/156 / EEC on waste, claiming that these were examples of a general breach of the provisions of the Directive. Therefore, the Commission sought to hold Ireland liable not only in respect of the twelve individual complaints, but also in the light of a general and persistent infringement of Ireland’s incorrect implementation of the Directive. The European Court upheld the Commission’s position, noting that it provided sufficient evidence to show the persistent and repeated nature of the infringement following the analysis of the situation of the twelve individual complaints. The doctrine said about this case that it „should be seen as the outcome of an evolution rather than a revolution, but it nevertheless is the first time that the Court devised a practical legal framework for future GAP(General and persistent breach) cases”[50]. The same author underlined that the major advantage of this case is it that has been brought before the Court one collective infringement, instead of twelve singular infringements and, as a result, Ireland had to amend not only a specific number of infringements, but also had to correct the general and consistent violations of the Waste Directive.[51] This represents an advantage of the establishing of the infringement of the EU Law through administrative practice. The Court states the existence of a widespread problem, and not of a singular example of non-compliance, and as result it is pursued to solve a problem at a general level.

An author[52], citing the Advocate General Geelhoeld, underlined that there are three different dimensions which analyzed together can indicate a „ general and structural infringement: scale, time and seriousness”. The Advocate General insisted on the particularity of the general and persistent infringements, highlighting that : „In short, a general and structural infringement may be deemed to exist where the remedy for this situation lies not merely in taking action to resolve a number of individual cases which do not comply with the Community obligation at issue, but where this situation of non‑compliance can only be redressed by a revision of the general policy and administrative practice of the Member State in respect of the subject governed by the Community measure involved”[53]. The Advocate General insisted on the problem that needs to be fixed once the existence of the infringement has been established. In the situation of a general and persistent breach of the EU Law, a Member State has to amend the administrative practices of the Member State in order to comply with its obligations and not only to fix some particular violations of the EU Law.

However, the CJEU did not provide an exact list of the criteria that must be met for an administrative practice to be considered consistent and general, but indications can be drawn for their interpretation from its case law[54]. The CJEU focuses mainly on the number of infringements of Union law, the gravity and duration of the infringement[55]. These criteria must be analyzed as a whole, on a case-by-case basis, depending on the particularity of the factual situation.

Although an administrative practice most often implies the existence of a large number of infringements, the CJEU has noted in its case law the incidence of an administrative practice in the case of a Member State regarding a single infringement. Illustrative in this respect is a case against Germany[56] concerning the complaint of an undertaking whose application for authorization to market and import a product in the form of garlic capsules was rejected by the competent German authorities on the ground that it did not represent food, but a medicine. The Commission informed the Court that the Federal Republic of Germany had failed to fulfil its obligations under Articles 28 and 30 of the former TEC by classifying a garlic preparation in capsule form as a medicinal product which did not constitute a medicinal product on the basis of presentation. The Court noted that the administrative decision was an obstacle to intra-Community trade, and this singular case was also considered an example of general practice in Germany[57].

One of the factors that indicate the incidence of an administrative practice is the duration of the infringement. In a case against Italy[58], the Commission brought to the Court’s attention a long-standing practice contrary to EU law established for the direct award of contracts for the purchase of helicopters from an Italian company for use by Italian military and civilian bodies, without using any tendering procedure and without complying with the procedures provided for in Directive no. 93/36 / EEC of 14 June 1993 on the coordination of procedures for the award of public supply contracts. The Court noted that the documents on the purchase of helicopters, annexed by Italy to its memorandum, demonstrate the Commission’s assertion that the purchase of helicopters on the basis of the negotiated procedure is a constant and lengthy practice. This case has also a big importance concerning the interpretation of national security clause provided by Article 346 TFEU. The Court held that the dual-use of the helicopters does not fit on the „specifically military purpose” stated by Article 346 TFEU, in order to represent a valid exemption from the application of Directive no. 93/36 / EEC of 14 June 1993. This case shows how rigorous is the examination made by the Court regarding the provisions allowing the use of the negotiated procedure without publication under the Defence Directive[59].

The consistent and general practice of a State may also be determined by the territorial extent of that infringement, as it is apparent from a case against Ireland[60]. In fact, in 1999 the Commission had been notified of a complaint concerning the former Ballymurtagh mine which was then used as a municipal landfill. In 2000, a second complaint was lodged with the Commission, which concerned unauthorized discharges into groundwater from a hotel. In this context, the Commission has found more general problems with the conditions for the application in the rural environment of Ireland of Directive 80/68/ EEC on the protection of groundwater against pollution caused by certain dangerous substances. In the present case, although the Court held that the various ways in which the Directive had been applied may support the existence of an infringement of the Directive, that infringement did not have the extent specified by the Commission. Therefore, the Commission noted that a faulty but geographically limited application could not be concluded in the sense of an administrative practice concerning indirect discharges into groundwater of effluents from septic tanks with the characteristics imposed by the case law of the Court and contrary to the provisions of the Directive[61].

The existence of a national judicial procedure regarding an alleged practice contrary to EU Law plays an important role when it comes to the analyse of the consistency of that particular practice[62]. In many cases, the Member States relied on the fact that the infringements brought into question by the Commission had been successfully settled at national level by the courts.[63] . For example, in a case against Belgium[64] concerning the discriminatory application of national law on a customer loyalty program, the Advocate General sustained that on one side, the Commission did not prove a discriminatory administrative practice contrary to the EU Law and, on the other side, the Belgian Government had demonstrated the existence of open legal proceedings at national level concerning situations similar to those alleged by the Commission. The Court dismissed the action for lack of evidence. Therefore, an effective judicial review of administrative decisions can represent a proof of the fact that in a particular situation there is not a widespread practice, but some singular errors of the administration[65].

The Commission has the role of proving the existence of a consistent administrative practice. Advocate General Kokott discussed recently, in its opinion delivered in Case C-337/19 P, European Commission vs. Kingdom of Belgium and Magnetrol International[66], the requirements to be set regarding the European Commission’s task of demonstrating the existence of an administrative practice. This matter is analysed in the context of the appeal brought by the Commission against the judgment of the General Court of 14 February 2019. The alleged violation of the EU Law is the practice of the Belgian tax authorities from 2004 to 2014, which went beyond the legal situation and constituted in adjusting the profits of undertakings of cross-border groups on the basis of “excess profits” by means of tax rulings. The Advocate General, insisting on the consistent and general nature that an administrative practice must have, underlined that „ Such a practice is consistent if it has been developed in such a way as to give the impression that cases in a certain category are always treated in this way”[67]. In this case, the Commission had examined 22 of the 66 advance rulings, all the rulings coming from the same issuer, namely the Belgian Ruling Commission. Moreover, the Commission selected decisions from 2004, 2007, 2010 and 2013, meaning, as the General Court held, rulings issued at the beginning, middle and end of the period. As a result, in the opinion of the Advocate General, the General Court erred in law by wrongly classifying the sample as not sufficient to demonstrate a consistent administrative practice.

When it comes to proving the existence of an administrative practice, it presents relevance Case C-441/02, Commission vs. Germany[68]. The Commission analysed several complaints sent by Italian nationals residing in the Land of Baden-Württemberg regarding the measures taken against them by the German authorities affecting their right to reside in Germany. Therefore, the Commission, in a letter of formal notice of 8 July 1998, drew the attention of the Federal Republic of Germany to the matter of whether certain statutory provisions and administrative practices were compatible with the provisions of Community law concerning the right to reside in the Member States.

The Commission underlined that the purpose of the action is not to examine individual cases, but to illustrate the general nature of an administrative practice contrary to Community law because it is based on legislation which does not transpose the requirements of the Community rules with sufficient clarity.

The court held that the Commission has failed to prove the existence an administrative practice, with the requirements of the case-law of the court. The Court added that the Commission only listed a number of cases of administrative decisions, without providing the decisions in question, and merely reproducing a short part from some of them.

The conformity of the administrative practices with the EU Law has been discussed recently also in Case C-51/18[69], Commission vs. the Republic of Austria. The Commission complained about the administrative practice of the Republic of Austria consisting in imposing VAT on the royalty payable to an author of an original work of art on the basis of the resale right. The Court embraced the Commission’s view and held that by providing that the remuneration due under the resale right to the author of an original work of art is subject to value added tax, the Republic of Austria has not ​​complied with its obligations under Article 2 paragraph(1) of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax.

In Case C-216/11, Comission versus France[70], the Commision reported irregularities regarding the French administrative practices with regard to tobacco imports from other member states, claiming that the French legislation and administrative practice are contrary to Articles 8 and 9 of the Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products. The Court of Justice of the European Union held that „By using a purely quantitative criterion to assess the commercial nature of the possession by private persons of manufactured tobacco in another Member State, as well as by applying this criterion to the personal vehicle (and not per person) and globally for all tobacco products, The French Republic has not complied with its obligations under the Directive”[71].

Last, but not least, as we have underlined before, the action for failure to fulfil obligations and the reference for a preliminary ruling have a similar purpose, merely analysing the conformity of the national law and practices of a Member States with the EU Law. The administrative practices of the Member States have been subject of the analysis also in the references for a preliminary ruling procedure; therefore this case law can be used in order to highlight the principles that must govern the administrative practices of the Member States.

For instance, in the recent Joined Cases C-13/18 and C-126/18[72], Sole‑Mizo Zrt.  and Dalmandi Mezőgazdasági Zrt against Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Directorate for resolving appeals within the National Tax and Customs Office, Hungary), the Court of Justice of the European Union was request for a preliminary ruling regarding the right to reimbursement of taxes levied in a Member State in breach of Union law. The Court ruled that „Union law, and in particular the principles of fiscal effectiveness and neutrality, must be interpreted as precluding the practice of a Member State of calculating interest on excess value added tax (VAT) withheld by that Member State after a reasonable period of time, in breach. by applying a rate corresponding to the reference rate of the national central bank, where, on the one hand, that rate is lower than that which a taxable person who is not a credit institution should pay for to borrow an amount equal to that amount and, on the other hand, the interest on the surplus VAT in question shall flow within a certain reporting period, without any interest being applied to compensate the taxable person for the monetary depreciation caused by the lapse of that period declaration until the actual payment of such interest”[73].

Conclusion

This article aimed to highlight the importance of the administrative practices of the EU Member States, by taking into consideration the potential of an action for failure to fulfil obligations.

First of all, we presented the special nature of the European Union. The European Union represents an international organisation, having its own legal order system. The principle of subsidiarity and the principle of proportionality governs the way are exercised the shared competences of the Union with the Member States.

The relationship between the EU Law and the national law of the Member States is based on the principle of the primacy of the EU Law. According to this principle, in a situation of shared competences, if a situation is regulated by both the national law and the EU law, the EU Law prevails. This principle was created by the case law of the Court of Justice of the European Union, among which we mention the famous cases Costa/E.N.E.L, Internationale Handelsgesellschaft, Simmenthal, etc. Despite of the existing case law, the majority of the Member States find it difficult to recognize the primacy of the EU Law over their Constitution.

The obligation of the Member States to respect the EU Law has as corollary a procedure in the situation of non-compliance: the action for failure to fulfil obligation. Although the star of this action is the failure to transpose a directive within the prescribed time, the administrative practices of the Member States, contrary to the EU law can represent an infringement which can lead to pecuniary sanctions.

Talking about the nature of the infringement, the Member States can be held responsible for their actions or inactions of their administrative bodies, including institutions that are constitutionally independent. Also, that practices can refer to violations of both primary and secondary EU legislation.

The Court considers an administrative practice as an infringement case is that practice is constant and widespread. The Court did not provide an exact list of the criteria that must be met for an administrative practice to be considered consistent and general, but it focuses mainly on the number of infringements of Union law, the gravity and duration of the infringement. Also, an effective judicial review of administrative decisions can represent a proof of the fact that in a particular situation there is not a widespread practice, but some singular errors of the administration.

In the end, it is the Commission’s duty to prove the existence of an administrative practice contrary to the EU Law, the duty to prove that an alleged practice gives the impression that cases in a certain category are always treated in the same (unlawfully) way.

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[1] For a detailed history line of the evolution of the European Union, see C. Egenhofer, S. Kurpas, P. M. Kaczyński, L. Van Schaik, The Ever-Changing Union: An Introduction to the History, Institutions and Decision-Making Processes of the European Union, Centre for European Policy Studies, Brussels, 2011, p. 3-20.
[2] A. Marinac,  M.M. Matijević, J. Mlađenović, Division of competences between the European Union and the Member State, EU and comparative law issues and challenges series, Issue 3, 2019, p.82.
[3] According to Article 3, paragraphs(1)-(2) of the TFEU: “1. The Union shall have exclusive competence in the following areas:
(a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the euro; (d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.”
[4] According to Article 4 paragraphs (1)-(2) of the TFEU: “1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:(a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty.”
[5] A. Marinac, M.M. Matijević, J. Mlađenović, Op. Cit, p. 85.
[6] F. Gyula, Drept instituțional al Uniunii Europene, Editura Hamangiu, Editura Sfera, București, 2012, p. 63.
[7] L. Lööw, The Principle of Subsidiarity. An Examination of the Swedish Parliament’s Application of the New Protocol on Subsidiarity, Master’s Thesis in European Union Law, UPPSALA Universitet, Department of Law Spring, Term 2013, Available at https://www.diva-portal.org/smash/get/diva2:611135/FULLTEXT01.pdf, last accessed on 28^th of March 2023.
[8] G. de Búrca, The principle of proportionality and its application in EC Law, Clarendon Press Oxoford, Yearbook of European Law, Volume 13, Issue 1, 1993, p.105.
[9] F. Gyula, Op.Cit., Editura Sfera, București, 2012, p. 66.
[10] T. Kruis, Primacy of European Union Law- from Theory to Practice, Ritsumeikan Law Review, No. 28, 2011, p. 270-271.
[11] M. Avbelj, Supremacy or Primacy of EU Law—(Why) Does it Matter?, European Law Journal, Vol. 17, No. 6, November 2011, p. 744.
[12] Ibidem, p. 744-755.
13 F. Gyula, Op.cit., Editura Hamangiu, Editura Sfera, București, 2012, p. 68-69.
[14] Judgment of the Court of 15 July 1964, Case 6/64, Flaminio Costa v. E.N.E.L, http://curia.europa.eu.
[15] P. Craig, G. de Burca, Dreptul Uniunii Europene: comentarii, jurisprudență și doctrină, Ed. Hamangiu, București, 2017, p. 300.
[16] Idem.
[17] F. Gyula, Op. cit., p. 69.
[18] Idem.
[19] F. Gyula, Op. cit., p. 70.
[20] J. Steiner, L. Woods, C. Twigg-Flesner, EU Law, Ninth Edition, Oxford University Press, New York, 2006, p. 117-118.
[21] P. Craig, G. de Burca, Op. cit, p. 302.
[22] P. Craig, G. de Burca, Op. cit, p. 304.
[23] F. Gyula, Op. cit., p. 72.
[24] F. Gyula, Op. cit., p. 72-73.
[25] T. Kruis, Op. cit., p. 278
[26] Idem.
[27] F. Gyula, Op. cit., p. 74.
[28] P. Craig, G. de Burca, Op. cit, p. 307-308.
[29] F. Gyula, Op.Cit, p. 358.
[30] Idem.
[31] M. A. Dumitrașcu, Dreptul Uniunii Europene și specificitatea acestuia, Ed. Universul Juridic, București, 2015, p. 224-225.
[32] F. Gyula, Op. Cit., p. 358.
[33] O. Manolache, Tratat de Drept Comunitar, Ed. a 5-a, Ed. C.H.Beck, București, 2006, p. 758.
[34] F. Gyula, Op.Cit, p. 358.
[35] P. Craig, G. de Burca, Op. cit, p. 499-505.
[36] Ibidem, p. 500.
[37] Idem.
[38] C.E. Koops, Contemplating compliance: European compliance mechanisms in international perspective, University of Amsterdam, UvA-DARE (Digital Academic Repository), 2014, p. 93.
[39] Ibidem, p. 93-94.
[40] P. Craig, G. de Burca, Op. cit, p. 503.
[41] Ibidem, p. 505.
[42] M. A. Dumitrașcu, Op.cit., p. 226.
[43] Judgment of 18 November 1970, Commission vs. Italy, C-8/70, http://curia.europa.eu.
[44] M.A. Dumitrașcu, Op. Cit., p. 228.
[45] P. Craig, G. De Burca, Dreptul Uniunii Europene. Comentarii, jurisprudență și doctrină, Ed. A VI-a , Editura Hamangiu, București, 2017, p. 504.
[46] Judgement of the Court of 9 May 1985, C-21/84, Commission vs. France, http://curia.europa.eu.
[47] A. Sikora, Administrative practice as a failure of a Member State to Fulfil its obligations under Community Law, Review of European Administrative Law, vol. 2, no.1, Europa Law Publishing, p. 8.
[48] Judgment of the Court of 29 April 2004, C-387/99, Commission vs. Germany, http://curia.europa.eu.
49 Judgement of the Court of 26 April 2005, C-494/01, Commission vs. Irland, http://curia.europa.eu.
[50] P. Wennerås, A new dawn for commission enforcement under articles 226 and 228 EC: general and persistent (gap) infringements, lump sums and penalty payments, Common Market Law Review, Vol. 43, No. 1, 2006, p.36.
[51] Ibidem, p. 42.
[52] A. Schrauwen, “Fishery, Waste Management and Persistent and General Failure to Fulfill Control Obligations”, Journal of Environmental Law, Vol. 18, No. 2, 2006, p.293.
[53] Advocate General Geelhoeld’s Opinion in C-494/01, Commission vs. Irland.
[54] A. Sikora, Op.cit., p. 14-15.
[55] Ibidem.
[56] Judgement of the Court of 15 November 2007, Commission vs. Germany, C-319/05, http://curia.europa.eu.
[57] A. Sikora, Op.cit., p. 15.
[58] Judgement of the Court of 8 April 2008, Commission vs. Italy, C-337/05, http://curia.europa.eu.
[59] L. R. A. Butler, Transatlantic defence procurement. EU and US Defence Procurement Regulation in the Transatlantic Defence Market, Cambridge University Press, Cambridge, 2017, p. 94-95.
[60] Judgement of the Court of 25 October 2007, Commission vs. Ireland, C- 248/05, http://curia.europa.eu.
[61] Ibidem.
[62] A. Sikora, Op.cit., p. 17.
[63] Ibidem.
[64] The Opinion of the Advocate General Léjer delivered on 10 March 2005 in Case C-287/03, Commission vs. Kingdom of Belgium, http://curia.europa.eu.
[65] A. Sikora, Op.cit., p. 18.
[66] The Opinion of the Advocate General Kokott delivered on 3 December 2020, Case C-337/19 P, European Commission vs. Kingdom of Belgium and Magnetrol International, http://curia.europa.eu
[67] Idem.
[68] Judgment of the Court of 27 April 2006, ruled in case Case C-441/02, Commission vs. the Germany, http://curia.europa.eu
[69] Judgment of the Court of 19 December 2018 in Case C-51/18, Commission vs. the Republic of Austria, http://curia.europa.eu.
[70] Judgement of the Court of 14 March 2013, Case C-216/11, Commission vs. France, http://curia.europa.eu.
[71] Idem.
[72] Judgement of the Court of Justice of the European Union of 23 April 2020, in the Joined Cases C-13/18 and C-126/18, Sole‑Mizo Zrt. and Dalmandi Mezőgazdasági Zrt against Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága(Directorate for resolving appeals within the National Tax and Customs Office, Hungary), http://curia.europa.eu .
[73] Idem.

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PhD candidate Raluca-Andreea Trîncă-Găvan