The member states have raised various defences, often acceptable in International law but without success in the EU legal order, to justify their non-compliance with obligations. Of the more common are:
- Force Majeure or overriding necessity in Case 77/69 Commission v Belgium (the Belgium Wood Case) in which the Belgium Government pleaded the dissolution of Parliament and the separation of powers had forced the failure to implement an EU Directive;
- and Case 101/84 Commission v Italy, where a data processing centre had been bombed, which might have actually allowed the defence to be used if it was not for the fact that the delay in implementing was four and a half years, far too long for the Court;
- Community measures being the cause of political or economic difficulties raised by the UK in Case 128/78 Commission v UK (Tachographs) in which the UK pleaded that the cost and interruption to industry of fitting tachographs in lorry cabs would cause extreme difficulties;
- and Italy in Case 7/61 Commission v Italy, where Italy claimed it could take action in the case of an emergency but this could only be done if expressly sanctioned by the Commission, which in the case, it was not and;
- Reciprocity, by which the member state claimed in Cases 90–91/63 Commission v Belgium and Luxembourg that because the Council has failed to act, or in Case 232/78 Commission v France, that other member states have not complied with their obligations, the member state challenged is justified in not complying;
- Likewise, arguments that a conflicting national law is not in fact applied or that the administrative practice is in compliance as in Case 167/73 Commission v France also fail.
About the only defence that will work, given the robust dismissal by the Court of Justice of virtually all other defences raised, is that the Commission got it wrong on the facts or in law, i.e. there was no breach.2. What remedies will an individual have, in circumstances where she/he has called upon the Commission to act under Article 258 TFEU, and the Commission has declined to do so?
As confirmed by the CJEU in Case 247/87 Star Fruit Company v Commission and other cases, individuals have no right to force any action on the part of the Commission.3. Why is Article 259 TFEU so infrequently used?
Member states usually prefer to ask the Commission to bring actions under Article 258 TFEU as an alternative because this is a less politically obvious and contentious manner in which to secure compliance of EU law in the interests of the member state concerned. The states can continue with friendly relations whilst the Commission investigates and pursues the action if warranted.4. How effective are the actions under Articles 258 and 259 TFEU?
In view of the fact now that fines can be imposed under Art 260 TFEU by the CJEU where a member state has been found in breach of EU law obligations and continues not to comply, the procedures are ultimately effective, if not rather protracted. It compares very favourably with other forms of international enforcement. Note also that the vast majority of infringement actions (c. 90%+) commenced by the Commission against the member states are settled prior to any proceedings being heard by the Court of Justice.