What Constitutes ‘Failure to Notify’ National Measures

The inclusion of article 260(3) TFEU adopted as part of the Lisbon Treaty changed the landscape of infringement proceedings. The provision grants the Commission the power to propose monetary sanctions already during the initial Court litigation against a Member State that ‘failed to notify’ national measures transposing a directive. This article analyses the concept of ‘failure to notify’ and points out that the current interpretation adopted by the Commission is only one of several possible interpretations. The author concludes that article 260(3) TFEU as it stands now is vaguely drafted and is prone to lead to judicial uncertainty. It further increases the already heavily criticized Commission discretion. Furthermore, the lack of proper guidelines of what constitutes ‘failure to notify’ can lead to the arbitrary launching of non-communication proceedings as well as further complicate the internal Commission bureaucracy. It would have been advisable to create a system where the Commission was empowered to propose sanctions during the initial Court proceedings, regardless of the grounds for launching infringement proceedings.