Articles
01/04/2015
Administrative & European Public Law

Infringement procedures against Italy in the transport sector

Background

The European Commission (‘Commission’) constantly monitors the proper application of EU law by the Member States. If the Commission identifies a possible infringement or, as is most often the case, receives a complaint, the Commission, unlike the Italian fiscal authorities, tries to solve the problem amicably,  by means of a structured dialogue (‘EU Pilot’).

Member States are given the opportunity to provide further factual or legal information on the issue, the goal being to find a quick solution in compliance with EU Law and thus to avoid the need for formal infringements procedure.

However where the Member State and the Commission disagree, or where the Member State is not in a position, for domestic political reasons (think of milk quotas in Italy), to change the law, the Commission will start infringement procedures.

The ultimate outcome of an infringement procedure is that the Member State can on the one hand be fined by the EU, and on the other hand be liable in damages to injured interested parties. In addition, the EU law at issue is considered by EU law to be directly applicable and superior in law to the infringing national provision.

The frame of the Formal Procedure

The first step in the infringement procedure[1] is the letter of formal notice, by which the Commission requests national Governments to comment on non compliance problem within two months or less: if there are no reply, or an unsatisfactory reply, the Commission, by a reasoned opinion, states reasons why it believes the Member States is in breach of EU Law. National Government have two months or less to comply. Referral to the Court of Justice is inevitable in case of no reply or an unsatisfactory reply. The Commission asks Court to open litigation procedures.[2]  If a Member State fails to notify measures to implement a Directive (or even as in the food sector in relation to Regulations, Decision, or doesn’t take an appropriate measure for implementing a Rule of the Treaty) the Commission may at this stage ask to Court of Justice to impose lump sum and/or penalty payment.

After an average of two years, the Court rules whether the Member State has breached EU Law. National Governments are responsible to adapt its laws or practices and to resolve initial dispute as soon as possible. A case is returned to the Court of Justice if the Member State still does not comply. The Commission sends another letter of formal notice and may return matter to Court and proposes lump sum and/or penalty payment.

Infringements in Transport sector

The Brussels office of NCTM, along with the Rome office closely monitors all Infringement Procedures (IP) against Italy. This second article on Infringement Procedures looks at actions against Italy in the Transport Sector.

Remember, where the infringement is because of a failure to transpose a Directive into Italian law, then, most often, the provisions of that Directive will already be directly applicable in Italy. In other words the provisions of the Directive apply directly (just like a Regulation) and can be relied on in Courts or vis a vis the public administration.

  1. Shipping: six procedures open.

IP 2015/2008 relates to Directive 2013/38/EU on Port State Control.[3] This is a failure to transpose a Directive into Italian law. In line with all the infringement procedures relating to the failure to transpose directives, European Commission in February 2015 has sent to the Italian Government a letter of formal notice. The Directive 2013/38/EU aims to insuring that Member States comply with existing international Maritime Labour Conventions and Recommendations.

IP 2014/0515 concerns at the Directive 2009/13/EC[4] on Maritime Labour rules. The Directive implements the 2006 Agreement on Maritime Labour Convention, concluded on May 2008 between the organizations representing management and labour in the maritime transport sector.

IP 2014/0464 relates to the failure to transpose Directive 2012/35/EU on training of seafarers.[5]  In order to ensure uniform conditions for the implementation of Directive 2008/106/EC, Directive 2012/35 gives to the Member States the instruments for implementing the powers have been conferred on the Commission in the field of training and certification of seafarers.

IP 2013/2258 concerns Regulation 1177/2010[6]. The infringement procedure has reached the stage of a reasoned opinion. This 2010 Regulation ensures the rights of passengers establishing rules for sea and inland waterway transport on non-discrimination conditions and assistance, cancellation or delay, minimum information and the handling of complaints .

IP 2013/2122 concerns Directive 2009/18[7] on investigations of accidents. The purpose of this Directive is to improve maritime safety and the prevention of pollution by ships, and so reduce the risk of future marine casualties.

IP 2007/4609 concerns the violation of the Regulation 3577/92 on maritime cabotage.[8] The Commission sent a reasoned opinion in 2012. The infringement is now stopped at political level .

  1. Railways: two procedures open

IP 2012/2210 concerns Directive 91/440 on the separation of the infrastructure provider and rail service operators. In 2012 European Commission sent second (complementary) letter of formal notice in relation to Directive 91/440 on the Development of the Community’s Railways.[9]  The aim of the Directive is to facilitate the adoption of the Community Railways to the needs of the Single Market and to increase their efficiency by ensuring the management independence of railway undertakings and separating the management of railway operation and infrastructure from the provision of railway transport services, separation of accounts being compulsory and organizational or institutional separation being optional. The Directive also promotes the improvement of the financial structure of undertakings and ensures access to the networks of Member States for international groupings of railway undertakings.

IP 2008/2097 concerns the incorrect application of the ‘first railway package’ and in particular of the  Directive 2001/14/EC.[10] Scope, definitions, infrastructure charges, allocations of infrastructure capacity are the legal EU framework[11] for the development of the integration of the Community railway sector as an essential element of the completion of the Internal Market. This infringement procedure is at the step of letter of formal notice pursuant Article 260 TFEU.

  1. Aviation: one procedure open

IP 2013/2155 concerns the Agreement on Airspace Block “BLU MED” (between Cyprus, Greece, Italy and Malta). The EU Law violation regards two Regulations[12] and the step of the procedure is at the second (complementary) letter of formal notice (Letter sent to the Government by the European Commission and dated 10.7.2014).

  1. Road Transport: two procedures open

IP 2014/2116 concerns the rules in relation to the recognition of other Member State driving licences. In February 2015 the European Commission sent a reasoned opinion to the Italian Government about on the incorrect application of the Directive 2006/126 on driving licences[13].

IP 2013/2260 concerns Regulation 181/2011 on the rights of passengers on buses[14] The procedure is at the step of reasoned opinion. The Regulation aims to ensure a high level of protection for passengers that is comparable with other modes of transport, wherever and however they travel. Moreover, full account should be taken of the requirements of consumer protection in general.

[1] The infringement procedure is made up of a series of steps foreseen by the Treaties, each of which is laid down in a formal decision.

[2] Things rarely go this fair. The last few years 85% of cases were resolved before litigation stage.

[3] Directive 2013/38/EU of the European Parliament and of the Council of 12 August 2013 amending  Directive 2009/16/EC on Port State Control,OJ L 218, 14.8.2013, p.1.

[4] Council Directive 2009/13/EU of 16 February 2009, implementing the Agreement concluded by European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ fdration (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC, OJ L 124, 20.5.2009, p.30.

[5] Directive 2012/35/EU of the European Parliament and of the Council of 21 November 2012 amending Directive 2008/106/EC on the minimum level of training of seafarers, OJ L 343, 14.12.2012, p. 78.

[6] Regulation (EU) No 1177/2010 of the European parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004, OJ L 334, 17.12.2010, p.1.

[7] Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council, OJ L 131, 28.5.2009, p. 114.

[8] Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (‘Maritime cabotage’), OJ L364, 12.12.1992, p. 7.

[9] Council Directive 91/440/EEC of 29 july 1991 on the development of the Community’s Railways, OJ L 237, 24.8.1991, p. 25.

[10] Directive 2001/14/EC ot the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety ceritification, OJ L 75, 15.3.2001, p. 29.

[11] The precedent framework was set out in Directives 91/440/EC and 95/18/EC.

[12] Commission Regulation (EU) No 176/2011 of 24 February 2011 on the information to be provided before the establishment and modification of a functional airspace block, OJ L 51, 25.2.2011, p. 2; Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European Sky, OJ L 96, 31.3.2004, p. 10.

[13] Directive 2006/126/EC of the European Parliament and of the Council of 20 december 2006 on Driving Licences ( Recast), OJ L 403, 31.12.2006, p. 18.

[14] Regulation (UE) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport amending Regulation (EC) No 2006/2004, OJ L 55, 28.2.2011, p.1.

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