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The Commission does not have the power to invalidate the national measures that constitute the infringement. However, more doubts arise concerning whether it has the power to establish which decisions the State concerned has to take in order to comply with the Commission's reasoned opinion. The same doubt applies to the ECJ.[80] In fact, the Treaty does not say anything concerning this problem.
Already in 1961, Advocate General Lagrange interpreted the second paragraph of Article 169 as imposing on the Commission the obligation of indicating in its reasoned opinion the measures considered necessary to bring the failure to the end. However, in its decision, the ECJ did not reflect the Advocate General's opinion in this respect. For the ECJ, what the reasoned opinion has to contain is a "...coherent statement of the reasons which led the Commission to believe that the State in question has failed to fulfil an obligation under the Treaty".[81]
Later, the ECJ would confirm that the Commission has no duty to indicate in its reasoned opinion which concrete steps should be taken by the Member State concerned to eliminate the impugned conduct.[82] However, although the Commission is under noobligation, it is not at all clear yet whether it is enabled to do this. According to Advocate General Lenz the Commission has the power to state the steps to be taken by Member States.[83] Nevertheless, in the case that it were considered to possess the power to do so, it seems that the Commission could only indicate ways and possible solutions for ending the breach, but not designate a particular method for doing so.[84] As a consequence, in its application to the Court, the Commission could not record the failure of a Member State to employ a concrete means which was suggested in the reasoned opinion, but only that the Member State had failed to attain the proposed objective.[85]
On the other hand, it is important to analyse the ECJ's power in this respect, since it would appear that the Commission's powers, the Commission being considered as an administrative entity, cannot be greater than the ECJ's powers, as a judicial body. In this sense, it has been suggested that although the ECJ often gives advice in its decisions to the Member States on how to solve an infringement, it is not able to tell the Member State concerned what concrete measures it should take: for instance, the ECJ would not be competent to specify the range of rules the Member State needs to approve.[86]
However, in spite of the case-law and some legal doctrine cited in the previous paragraphs, there are also good reasons to assert that both the Commission and the ECJ are enabled to state the measures required for compliance. First, the legal reasons are included in the new Article 171(2) of the EC Treaty, which says:
"If the Commission considers that the Member State concerned has not taken such measures [in other words, necessary measures to comply with the judgement of the Court of Justice] it shall, after giving that State the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgement of the Court of Justice"
It can be noted that to specify the points on which the Member State has not complied with the ECJ's decision may imply specifying which measures the Member State has still to adopt to be considered as having complied with that judgement. The same can be said concerning the decision of the Commission to bring a case to the Court if a Member State has not "complied" with its reasoned opinion. Consequently the ECJ can do the same. If this power is offered during the second procedure (i.e., Article 171), there is no reason to exclude that the power to specify which concrete measures the Member States have to adopt could also be exercised during the first procedure (i.e., Article 169).
Second, in some cases, the Commission has already indicated what measures it was expecting a Member State to take to comply with its reasoned opinion, without this fact being critized by the ECJ.[87] Moreover, there is, at present, a contradiction between the power of the ECJ to impose concrete obligations on Member States when it adopts interim measures (cf. Article 186 EC Treaty), and the lack of that power when the ECJ takes the final decision.[88] However, even if the ECJ cannot clearly state the necessary measures that a Member State should take to solve the lack of compliance, these measures can be frequently found, at least implicitly, on the grounds of some of its decisions.[89] In fact, the theoretical freedom with which Member States have to choose the most appropriate means in order to comply with EC law is not absolute, since the ECJ has recognized some limits. Thus, mere administrative practices, which by their nature may be altered at will by the national authorities, may not be considered as constituting proper fulfilment of the obligation deriving from that directive.[90]
A different problem is whether the possibility for the ECJ to clearly prescribe the measures that a Member State has to take, should be better stated in the Treaty or by secondary legislation. The President of the ECJ supported the first option by letter of 12th December, 1990, addressed to the President of the Council, concerning the power of the ECJ to state such measures in its decisions.[91] This suggestion was eventually not included in the Treaty.
Finally, there are also reasons related to the efficiency of the procedures. In this sense, it has also been suggested that since the reasoned opinion limits the scope of judicial proceedings, it may be useful even for the Member States concerned that the Commission should specify in the reasoned opinion the steps that are required to comply with it.[92] For example, when it is challenging a general provision, but not all the actions taken under such a provision by the Member State, by limiting the scope of its action it would also be establishing the necessary steps to be taken.[93] In fact, Member States have sometimes complained about the ambiguous position of the Commission inasmuch as it does not specify what sort of measures should be taken to terminate the infringement. This can lead to a certain measure being taken by a Member State to comply with the reasoned opinion, which, however, did not impede the Commission's action before the ECJ; all this without the Member State having had the possibility to discuss this aspect with the Commission.[94]
It must be noted that this possibility has been granted to the Commission under other infringement procedures created by the Treaty and, notably, in Article 90.3 EC Treaty where the ECJ specified that the Commission must be empowered to determine via decision "that a given measure is incompatible with the rules of the Treaty and to indicate what measures the State to which the decision is addressed must adopt in order to comply with its obligations under Community law".[95] Otherwise Article 90(3) will be deprived of its effect utile. In spite of the difference between a Commission decision and reasoned opinion, something can be learnt from the ECJ's statement.[96]
In sum, as a result of what we have said, it may be useful for the Member State concerned that, first, the Commission and, then, the ECJ, state clearly which measures they consider to be necessary because it would offer an opportunity to discuss the suitability of these measures during the first judicial proceedings and not only the general fact of lack of compliance. Furthermore, it could help to avoid the initiation of a second procedure based on the inappropriateness of the measures adopted by the Member State, which, after the Maastricht Treaty, could imply the payment of a lump sum or a financial penalty. This possibility will not restrict the autonomy of Member States any more than under the present situation, but it will make their real position much clearer.
[ ]80See Case 6/60 Humblet v. Belgian State [1960] ECR 559-593, p. 568. According to this Case, "the Court has no jurisdiction to annul legislative or administrative measures of one of the Member States (on p. 568)", "the High Authority...may not itself annul or repeal these provisions but in accordance with Article 88 of the Treaty, it may merely record such a failure and subsequently institute proceedings as set out in the Treaty to prevail upon the State in question itself to rescind the measures which it has adopted...the same applies to the Court of Justice (on p. 568)". See also DIEZ-HOCHLEITNER, Javier "La respuesta del TUE al incumplimiento de las sentencias del Tribunal de Justicia", (1993) vol. 20, 3 Revista de Instituciones Europeas 840-841).
[ ]81Case 7/61 Commission v. Italy [1961] ECR 317-338, p. 327. The Advocate General stated (p. 334) that:
"The reasoned opinion referred to in Article 169 in reality has a dual purpose. First, it must set out the reasons of fact and of law for which the Commission considers that the State concerned has failed to fulfil one of its obligations and, secondly, it must inform the government of the State of the measures which the Commission considers necessary to bring the failure to an end. This second purpose of the opinion follows from the terms of the second paragraph of Article 169:
'If the State concerned does not comply with the opinion...'
Therefore it does not suffice for the Commission to establish the failure to fulfil an obligation; it must, in addition, indicate the means calculated to bring it to an end...It is clear that the Commission's demands in this conexion may vary according to the nature of the failure and the circumstances of each case...In this conexion, the Commission has wide discretion"
[ ]82See e.g. Case C-247/89 Commission v. Portugal [1991] ECR I-3659 to I-3694, para. 22, p. I-3689: "...it should be noted that, according to the Court's case-law, the reasoned opinion must contain a coherent and detailed statement of the reasons which persuaded the Commission that the State concerned had failed to fulfil one of its obligations under the Treaty (judgement in Case 274/83 Commission v. Italy [1985] ECR 1077). However, the Commission cannot be required to indicate in the reasoned opinion what steps should be taken to eliminate the impugned conduct".
[ ]83In Case C-247/89, para. 26, p. I-3674. "In a reasoned opinion the Commission may specify the extent of the Member State's obligations. It may also, in the course of the dialogue which the pre-litigation procedure is intended to facilitate, indicate to the Member State what action would be appropriate in order to cure the infringement". See also Case 70/72, Commission v. Germany [1973] ECR 813-846, para. 13, p. 829: "Since the aim of the Treaty is to achieve the practical elimination of infringements and the consequences thereof, past and future, it is a matter for the Community authorities whose task it is to ensure that the requirements of the Treaty are observed to determine the extent to which the obligation of the Member State concerned may be specified in the reasoned opinions or decisions delivered under Articles 169 and 93(2) respectively and in applications addressed to the Court".
[ ]84In this sense, SCHERMERS, Henry and WAELBROECK, Denis. Judicial Protection in the European Communities (Deventer: Kluwer Law and Taxation Publishers, 1992) pp. 294-295.
[ ]85See in this sense Case 25/59 Netherlands v. High Authority [1960] ECR 374-390, pp. 377, 388.
[ ]86Cf. Advocate General's opinion, Mr Verloren van Themaat in Case 124/81 Commission v. United Kingdom [1983] ECR 203-253, p. 251. See also, DIEZ-HOCHLEITNER, 'La Respuesta del TUE...' op. cit. p 870, 871.
[ ]87See e.g. Case 199/85, Commission v. Italy [1987] ECR 1039-1060, where it is recorded that the Commission stated in the final paragraph of a reasoned opinion addressed to the Italian authorities that by necessary measures to comply with its reasoned opinion "is meant above all a written undertaking by the Municipality of Milan that it will comply with all the provisions of Directive 71/305/EEC in future" (para. 4, pp. 1056, 1057).
[ ]88Cf. DIEZ-HOCHLEITNER, Javier "La reforma institucional de las Comunidades europeas acordada en Maastricht" (1992) D-18 Gaceta Jurídica de la CE 60.
[ ]89Cf. e.g. Case 7/61 Commission v. Italy cit. See also VANDERSANDEN, G. and BARAV, A. Contentieux communautaire, (Brussels: Bruylant, 1977) p. 125.
[ ]90Case 96/81 Commission v. Netherlands [1982] ECR 1791 at 1817, paragraph 12 in. p. 1804. See also Case 169/87 Commission v. France [1988] ECR 4093-4119, paras. 11 and 12, pp. 4117, 4118. In the latter, for example, a notice published in the Official Journal of the French Republic was not considered enough.
[ ]91The letter contained the suggestions of the ECJ concerning the new amendments of the EEC Treaty to be introduced by the Maastricht Treaty. See summary of the letter in Agence Europe No. 5422, 1-February-1991, on pp. 15, 16.
[ ]92LOUIS, Jean-Victor "Le rôle de la Commission dans la procédure en manquement selon la jurisprudence récente de la Cour de justice" in CAPOTORTI, F....(eds.) Du droit international au droit de l'intégration, Liber Amicorum Pierre Pescatore (Baden-Baden: Nomos Verl.-Ges., 1987) pp. 395-396.
[ ]93In this sense, ARROWSMITH, Sue Remedies for Enforcing... op. cit. p. 42.
[ ]94Cf. Case C-247/89 Commission v. Portugal [1991] ECR I-3659 to I-3694, especially in para. 20, p. I-3688.
[ ]95Joined Cases C-48/90 and C-66/90 Netherlands and others v. Commission [1992] ECR I-565 to I-641, para. 28, p. I-635.
[ ]96Under Article 104c (paragraphs 9 to 11) procedure, the Council, this time, is granted similar powers.