Advances in Regulatory Economics series
Edited by Michael A. Crew and Paul R. Kleindorfer
Chapter 4: Failure to Implement the Postal Directive in the EU and EEA: Public and Private Enforcement of State Liability
* Alessandra Fratini† and Mariacristina Bottino‡ 04 ‡ 05 1 INTRODUCTION The Postal Directive (Directive 2008/6/EC),1 as all EU directives, contains a timetable for its implementation: to be transposed into national laws by 31 December 2010 or 31 December 2012 for those member states who have secured a two-year extension.2 Any failure to do so on time or in a correct manner would lead to infringement proceedings. In January 2011 the European Commission indeed activated the infringement procedure provided for in Arts 258 and 260(3) of the Treaty on the Functioning of the European Union (TFEU)3 against five of the 16 member states that were required to transpose the Postal Directive into their domestic law by 31 December 2010.4 Moving from the current implementation status of the Postal Directive, this chapter will address member states’ liability and other possible consequences of a lack of transposition of the Directive in the context of both public and private enforcement. Section 2 reviews the relevant categories of infringement under EU law and then provides an overview of the ‘public enforcement’ remedies available to the Commission and to fellow member states for infringement of EU law. Section 3 refers to the innovative tool introduced by the Lisbon Treaty under Art. 260(3) TFEU while Section 4 reviews the defenses that a member state can put forward in this respect. Section 5 further addresses the ‘private enforcement’ of state liability for failure to implement the Directive. With respect to those provisions that appear to...
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