On infringements: Member States free, the Commission tied (but not completely)

From reading the article "The Coming of age of infringement proceedings (Prete, Smulders, Common Market Law Review, Vol. 47 No. 1 February 2010):

While the Member States is free to raise any new argument before the Court...

With regard to substantive defences, it should be stressed that Member States are at liberty to raise new or additional arguments before the Court, and are not confined to the defences brought up during the administrative stage of the procedure. In the Armaments case, for instance, the Commission had argued that one plea of defence raised by Spain was out of time since it was not advanced at any time during the pre-litigation procedure. However, the Court rejected this objection, holding that the Commission's argument appeared contrary to the general principle of respect for the rights of defence. Moreover, the Court noted that there was no rule of procedure which requires Member States to put forward, during the pre-litigation phase, all the arguments of their defence. (C-414/97 Commission v. Spain, paras 16-18).

This case-law is criticized by the authors: ... one cannot avoid agreeing with those who find deeply regrettable the tendency of certain Member States to present a serious defence only before the Court. The attitude to treat with some superficiality the Commission's investigations may in fact lead this institution into error and thus provoke unnecessary litigation, with a consequential significant waste of resources for the Commission, the Member State concerned, and ultimately the EU judicature.

... the Commission has its hands tied, but this cannot not be stretched to the extreme.

For instance, that is the case where "the Commission, after alleging that a Member State has failed to transpose a directive at all, later specifies that the transposition pleaded for the first time by that State at a subsequent stage of the procedure is in any event incorrect or incomplete so for as certain provisions of the directive are concerned. Such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint." (C-456/03 Commission v. Italy, para 40)