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The preceding sections have analysed the role that the Commission and Member States play under Article 169 procedure. One conclusion that can be made here is that there need to be some clear limits on the use of this procedure and, more concretely certain criteria must be established to clarify when the Commission or the Member States' action should be preferred to fight against breaches of EC law. Using legal reasoning, this section analyses the possibility of fixing some limits to the use of Article 169 infringement procedure.[129]
The answer to the question of how intensively the Commission has to use Article 169 procedure is partially related to the question of how much discretion the Commission has in dealing with infringements. Thus, we refer to Section 2.2. for a more detailed analysis. However, this question can also relate to the principle of proportionality, which states that the Community shall not go beyond what is necessary to achieve the objectives of the Treaty. As we have seen, the objective of full enforcement can be considered Utopian.
Nevertheless, one can observe three phases in the Commission's use of Article 169 procedure. First, a phase of timid use that finishes with open criticism of that attitude by the ECJ, since the Commission, by acting in that way, was permitting situations of a clear illegality among Member States.[130] A second stage of a Commission's quasi "mechanical" use of Article 169, which, in some cases, negatively affected the political significance and the symbolic value of an application against a Member State. And thirdly, a period of a more selective use of this procedure, at least in its judicial phase, combined with the creation of specialized procedures.
The efficiency of Article 169 partially derives from its rarity, which must be carefully preserved. Any inflation in its use devalues its symbolic significance and hence, the base of its authority.[131] The policy followed by the Commission, when exercising its discretionary power with regard to Article 169 has not always followed a very consistent pattern. Although the Legal Service has recommended in internal reports to the Commission's services not to pursue minor issues, in fact, sometimes, in matters of minor importance, the infringement procedure has been easily decided upon, while, in important and controversial issues, the Commission sometimes appears to be more reluctant, perhaps for political reasons.[132] Nevertheless, the delegation of the "minor" problems to national authorities does not always imply a better or more efficient enforcement of EC law: first, in cases at national level, there are no legal remedies that the complainant can use, i.e., in some countries there are no measures to defend the environmental rights; and, second, even if there are legal remedies, national courts can only consider the EC and national law which is actually in force, while the ECJ can also take into account the proposals of new directives.[133]
In any case, it has been argued that the Commission should revise its litigation strategy, and go to court only in ultima ratio, when no national alternative is available, or a decision of principle must be made by the Court.[134]
In principle, the use of the infringement procedure, as an exclusive competence of an institutional nature, cannot fall within the scope of application of the subsidiarity principle, since this principle only applies to shared competences (see Article 3b EC Treaty). However, although the Commission is the only institution legitimated to use Article 169 procedure, the obligation to pursue infringements is shared by the Commission and Member States. Following a bottom-up approach and taking Article 169 procedure as the general procedure for dealing with infringements, the question is when the Commission is supposed to use its powers and when breaches should be left to Member States. In other words, it is one thing to use a particular EC infringement procedure, where the Community has exclusive competence, and another to determine what level of administration is responsible to fight against a concrete type of breach by using its own appropriate means.
At present, there are no legal criteria to determine when the action of the Commission or of a Member State shall prevail. Member States, at least on the continent, adopt clear rules in order to clarify the relations between different levels of administrations and, in particular, the decentralization of functions, for example, from the central to the regional administration. However, in the Community there is no rule that clarifies the relations between the Community and the Member States in pursuing infringements. This absence may be due not only to the usual reluctance of the Commission to draft rules that can limit the exercise of its functions, but also to the need of making the relations between the Commission and Member States more flexible.
In order to apply the principle of subsidiarity, first it is necessary to delimit which kind of infringements are to be better remedied by the Commission, and which by the Member States themselves. In fact, a greater decentralization on Member States to reduce the use of Article 169 procedure to more limited cases entails distinguishing between breaches that should be subject to Article 169 procedure, and those that should be left to national authorities. Although it is not easy to draw a clear line, the following sections will attempt to clarify these problems.
We have already analyzed the possibility of applying a policy of selective enforcement (cf. Section 2.2.4). However, we will make some complementary comments here.
Well before the principle of subsidiarity became so clearly established in Community law, it was already suggested that the Article 169 procedure should focus on cases of lack of transposition and infringements of a special relevance, such as restrictions to imports.[135] At present, the Commission is working on the definition of a new policy concerning the use of this procedure. In this sense, the Commission's Legal Service has proposed favouring the cases of lack of transposition and lack of conformity.[136] In the case of bad application, the Commission should only use this procedure when the bad application is widespread or when there is an extremely important problem of interpretation, for the uniform application of Community law. In the Commission's document on subsidiarity published prior to the Edinburgh Summit, it was also said that the Commission "will continue to give thought to the matter of petty infringements", meaning that minor infringements could be left, in principle, to national authorities, including judicial authorities.[137]
In fact, the success of the "Complaints Procedure" has forced the Commission to advise complainants to raise the matter with the national authorities in the first instance, particularly when the complaint refers to measures taken on the spot.[138] In cases of competition law the lack of Community interest has to be alleged as a justification for non-intervention of the Commission.[139] Furthermore, not only the principle of subsidiarity, but also the probable enlargement of the Community, the permanent growth of Community law,[140] and the lack of capacity of the Commission in terms of both financial means and staff, demand some decentralization of the supervision and enforcement of Community law. In fact, it has been said that if the growth of cases continues, the Commission would risk the control of the administrative management of this procedure.[141]
In any case, the Commission may always use its powers of discretion granted under Article 169 EC Treaty in order to act "in the interest of the law".[142] Moreover, there is a clear field of action for Article 169 procedure: infringements of Member States in their obligations as such concerning the institutions of the Community. One clear case would be the obligation, included in several directives, to report to the Commission on the actual application of Community law. In fact, in such a case there is no remedy under national law that could be used instead of the action of the Commission.
To sum up, the Commission should limit the prosecution of incidental infringements and concentrate on cases of systematically inadequate application of Community law, or, in other words, when it constitutes an administrative practice of non-compliance. Furthermore, it should focus on problems of transposition and lack of conformity of directives.
In the letter that the Commission addresses to complainants under Article 169, it states that this procedure is different from that followed in the national courts and may not be a substitute for it.[143] Indeed, it has been pointed out that infringements by national bodies, in the concrete cases of Community rules (directly applicable or with direct effect) or national rules properly transposing EC directives, should be left, as a general rule, to the national system of remedies.[144] As the House of Lords has put it, referring to the incorporation of EC Directives on the environment, "[P]ractical compliance with Community legislation should, in theory, present no more difficulty than compliance with other parts of national legislation into which it has been incorporated".[145] Furthermore, while action against a Member State for a lack of or an incomplete transposition may be accepted and even welcomed by the general public, an action concerning a particular project may be less well understood and have considerable political impact, if it could lead, as a consequence, to the suspension or standstill of the construction of a project favourable, in principle, to the development of a concrete area. Given the issue of public image, it may well be better for the Commission to leave the treatment of these infringements to the individual Member States.
Therefore, the Commission should only intervene "if the national authorities failed to solve the problem and end the infringement of Community law or failed to deal with the complaint within a reasonable time".[146] However, such a statement deserves further analysis. The following two sub-sections deal with two particular cases.
A. When legal persons and private persons are responsible for the infringement.
It has been said that Article 169 procedure, as opposed to what occurs in competition policy, has still the nature of an "international" procedure.[147] In order for the Commission to be able to use Article 169 procedure, an alleged infringement has to be suitable to be attributed to a Member State, the concept of State being interpreted in broad terms. In other words, in an action under Article 169 procedure it is essential to establish whether the defendant State may be held responsible for the offending conduct.[148] In cases where that attribution is not possible, the general rule must be the use of national remedies.
However, when the national legal order does not foresee "adequate" remedies (i.e. civil liability in cases of infringement of environmental law) or there is a judicial decision which cannot be revoked by another judicial body the intervention by the Commission may be advisable.[149] It could also be argued, however, that in cases of infringement discovered in a Member State, which have been committed by legal persons or private individuals coming from another Member State and not legally established in the host Member State, the action of the Commission could be justified by the transnational element, in order to avoid a direct confrontation between two Member States: for example, when an export Company of one Member State has placed products that do not comply with the Community safety regulations in another Member State.
Furthermore, when it is proved that a Member State has deliberately allowed the breach to happen, an Article 169 procedure could be initiated against that Member State for failing to comply with their obligations under Article 5. In other words, the subject of the infringement procedure will be not so much the behaviour of private individuals, but the lack of appropriate preventive or corrective measures adopted by the Member State. For example, in the case of Spanish strawberries, for several years French farmers were systematically burning Spanish lorries transporting strawberries and other agricultural products. During the years 1993 and 1994 the DG VI sent two letters to the French authorities asking them to adopt appropriate measures. In spite of the positive answers of the French authorities, the burning of lorries continued. In July 1994 the Commission initiated the Article 169 procedure, by sending a formal notice. The answer of French authorities again consisted of condemning the events and promising the adoption of measures of prevention. Only the existence of a video showing the passiveness of French police overcame the resistance of some Commissioners to send a reasoned opinion against France.[150] In practice, however, it is very difficult to prove this type of misbehaviour.
B. When the entities responsible for the infringement are national judges.
National courts are considered, according to the case-law of the ECJ, as Community courts which have the duty, within the limits of their jurisdiction, to give full effect to the provisions of Community law.[151] However, national courts may also infringe EC law in three ways: first, interpreting national law in a way incompatible with EC law; second, applying EC law in a way incompatible with ECJ's case-law; and thirdly, by ostensibly refusing to apply a norm of EC law, including ECJ's case-law, i.e. a general refusal to ask the ECJ for a preliminary ruling.
It has been said that only when a court of a Member State deliberately ignores or disregards Community law, should the Commission act against a national court.[152] However, it can also be said that the situation where the decision of a national court does not respect Community law should not, in theory, be different from that in which the judgement of a national court does not respect national law. Thus, parties can ask a higher court to modify that decision. Only when there is a judicial decision that cannot be modified can we rightly speak of an infringement of Community law. In these cases, however, there is a conflict between different jurisdictions.
In fact, to date the ECJ has attempted to respect the competencies of national judicial bodies in the preliminary rulings the ECJ has decided upon,[153] among other reasons, presumably, in order to avoid disputes between judges. In spite of that, some decisions of the ECJ seem to be addressed to national judges with an educational vocation.
Under the present system, it is arguable that the ECJ is not empowered to declare invalid a national judicial decision, since the Treaties, at least expressly, have not granted it such a power. However, even if it should be so empowered, the procedure for failing to comply with its obligations, under the Article 169, would not be the most appropriate way for the ECJ to change the decision of a national court. Indeed, if the normal role of judges is to adjudicate on the behaviour of administrations, it is unusual for an administration, to say the least (for example, the Commission as the body responsible for initiating an Article 169 procedure), to decide whether a court has properly applied or interpreted EC law.
Furthermore, this possibility would render inefficient any attempt to decentralize complaints. Thus, it might be contradictory to ask individuals to attempt to solve their complaints for "minor" infringements using the national administrative and judicial remedies, and, later on, to give them the possibility of challenging, via the Commission, unsatisfactory judicial decisions before the ECJ.[154]
As a consequence, it appears that the solution for solving a conflict between judicial bodies would be either to create a new arbitrary body or a new judicial procedure that would attribute a hierarchical role to the ECJ, which until now has been deliberately avoided. As an alternative solution, it has also been suggested that it would be useful to give the Commission the right to bring an action for failure to fulfil obligations under the Treaty directly before a national court, with a role similar to the national public prosecutors.[155] Where proceedings are in progress before a national court, the Commission should either wait and see the result or try to intervene as an "interested party" or as a "European public prosecutor". However, this would require a European rule authorizing it, i.e., a European Administrative Enforcement Procedures Act.
Nevertheless, we should be cautious with this process since only in very extreme cases when the infringement becomes clear and repetitive, risking the creation of a precedent in a Member State, could that judicial interpretation be considered a problem for European integration. Furthermore, at present, the Commission is lacking the financial resources and staff to intervene as public prosecutor in all the Member States.
Direct relations between federal and local governments are known in the United States. It has been noted, for example, that federal authorities have used some project grants to bypass the states and have direct dealings with specific localities and even with non-governmental bodies. Furthermore, the US federal government has been supplying direct aid to local communities, primarily in the fields of internal improvement and education.[156]
In the Community, although some Council regulations allow for a direct relation between the Commission and the regional administrations, this relation is still of a very limited nature.[157]
Concerning the supervision and enforcement of EC law, the ECJ has generally stated that the liability of a Member State under Article 169 arises irrespective of which agency of the State whose action or inaction is the cause of the presumed failure, even in the case of a constitutionally independent institution.[158] In this sense, the fact that a national Constitution has granted the Parliament or regions autonomy from the central government, does not hinder, according to Community law, the liability of the Member State. This statement is, presumably, based on a principle of international law, according to which only Member States are recognized in the international legal order; only they have legal personality, and only they can have legal representation in International Organizations. This reasoning, however, does not solve the potential contradiction between competences of the central government and competences of the regional authorities. Instead, that statement attempts to avoid the problem by introducing a different issue: the international responsibility of the Member State.[159] In fact, as has been noted, there is a dilemma about how to conciliate the monopoly of international representation, granted by national Constitutions to the central government, and the existence of regional authorities that are responsible for certain specific competences, according to some of those national Constitutions.[160]
In fact, another conclusion can be drawn if we take account of the fact that Community law constitutes a new legal order of international law, for the benefit of which the States have limited their sovereign rights, and the subjects of which comprise not only Member States but also their nationals.[161] If Community law differs from International law in making individuals and legal persons the direct subjects of its rules, it is difficult to find the legal reasons (we can guess the political ones) that do not allow the same conclusion to be applied to local and regional entities granted with political autonomy.[162] In fact, when a local or regional authority makes an illegal decision (for instance, it undertakes an illegal construction project) in a Member State, it is usually expected that administrative and judicial proceedings will be directly taken against that body and not against the central Ministry or Secretary of State, even though the latter may have overall responsibility for that area. If this is true at the national level, it is not very clear why it should be different for the Community.[163]
Furthermore, sometimes the direct dealing of the Commission with regions will also be more efficient in dealing with infringements. For example, in the public procurement sector, an action would be more efficient if it were taken against the contract awarding body, in the case of a local or regional government, than if it were addressed to a Member State.[164] Indeed, Article 3 of the Compliance Directive already obliges the Commission to notify not only the Member State but also the contracting authority of "the reasons which have led it to conclude that a clear and manifest infringement has been committed".[165]
Moreover, in some Member States regions can be directly responsible for the infringements, without the central government having efficient means to control regional bodies.[166] This fact, however, cannot justia Member State's failure to fulfil its EC obligations since Member States cannot plead circumstances existing in its internal legal system in order to justify their illegal behaviour.[167] However, this legal statement does not in itself solve the problem of lack of compliance. Instead, in certain cases, allowing direct contact between the Commission and regional authorities could be more efficient and more realistic.
It is also interesting to check whether an action should be initiated against a State simply because it has allowed a regional administration to act against the Treaty by not taking the necessary measures to preclude such effects, or whether the Member State concerned should also be responsible for the infringement made by the regional administration (the possible lack of compliance of a ECJ decision included) independently of the Member State's own behaviour. The ECJ has accepted the difference between these two situations by dismissing a Commission application where the Commission asked the Court to declare that the Member State concerned failed to comply with its obligations by allowing a provincial administration to act illegally, and by not taking steps to preclude the effects thereof. In its reasoned opinion, the Commission simply considered that the Member State had failed to comply with its obligations because the provincial administration had acted illegally. Although in this case (C-296/92) the ECJ dismissed the application as based on the different contents of reasoned opinion and judicial application, it can also be derived from the last paragraph of the decision that the ECJ is not very interested in judging the appropriateness of the means and the behaviour of the Member States vis-à-vis its regions and local authorities to convince them to comply with EC law.[168] Instead, according to the ECJ, proving that any public body within a Member State has failed to fulfil its obligations is enough to hold that State responsible vis-à-vis the Community for such a breach. Although the ECJ, which could not do otherwise, still only accepts judicial action against a Member State, the fact that it is not interested in judging the measures adopted by a Member State in order to "convince" the region to comply with EC law can imply a possibility of recognizing the direct responsibility of a region.
In any case, the present system has clear shortcomings. For example, there are cases where the same fact can produce two different kinds of infringement, one at national level and another at regional level, that would then deserve a different legal treatment. For example, if we take the Costanzo Case, the failure on the part of national authorities to fulfil Community obligations (in reference to the transposition of Directive 71/305 concerning the coordination of procedures for the award of public works contracts) does not exclude lower authorities from applying directly-effective provisions of Community law.[169] Therefore, we have two different obligations (one for the State, to transpose the directive, and another for any authority, to apply the directly effective provisions of the non-transposed directive, disregarding the national law still in force that is incompatible with those provisions) and two different possible infringements. In this situation the State is badly placed to defend both kinds of lack of compliance, and the region is faced with the dilemma of choosing between the national law still in force and the unconditional provisions of a directive that has not been implemented yet, by-passing, if it chooses the second option, the role of national Parliaments in the case that the directive has to be implemented by statute.[170] Moreover, the application of the loyalty clause of Article 5 by the ECJ, in the Costanzo case, to decentralized authorities could bring, as a consequence, an obligation for the regions to communicate directly to the Commission the information required; for example, in the case of the application of directly effective provisions of a directive not properly transposed by the central government. This obligation could be counterbalanced by a parallel obligation to communicate the same information at the same time to the national authorities.[171]
In order to solve these problems, we suggest a process -which can be called "decentralization of liability"-[172] that could be enforced, in practical terms, as follows: Member States would be, in principle, responsible for resolving all the infringements of Community law which have occurred on their territory. However, if the violation continues after a reasonable period of time, and the Commission considers resolution of the problem to be important for the uniform application of Community law, the Commission could act directly against the local or regional authority responsible for the violation, provided the Member State concerned agrees (or specifically asks for its intervention). This solution attempts to respect the delicate internal division of powers between the central and regional administrations. Moreover, it has several advantages: first, it might make more efficient the negotiations that usually take place between the Commission and the Member States in the case of infringement procedures; and second, it might give more power to the sanctions stated in Article 171.2 EC Treaty, making clear that they will be paid by the entity directly responsible for the infringement.
The Commission officials interviewed reacted to our proposal in two ways. One group was clearly against. For them, the Commission needs a clear counter-part, i.e. a Member State, even more due to the coming enlargements. Therefore, there is a need more for simplification than for increasing complexity. Although contacts with regions would be useful for obtaining information, the same cannot be said for the monitoring of infringements. In this case, problems usually affect more than one region or the relations between them. Furthermore, the possibility to bring an action to the ECJ has to be always against the Member State.
However, another group considered the decentralization of liability very useful. In fact, direct contact with regions is already taking place in the package meetings, such as in Germany, Italy and Spain. Furthermore, the Commission is already having informal contacts with regions. Nevertheless, some changes should be introduced to improve these contacts. First, there should be clear rules concerning the status, rights and duties of regions and local authorities under EC law. Second, it should be possible to take a region directly to the ECJ for failure to comply with EC law.
Of course, this proposal would require the amendment of Articles 169 and 171 EC Treaty or be, at least, part of a future EC Administrative Enforcement Act.
[ ]129Another interesting area for analysing the limits of Commission's powers could be competition policy. However, I have preferred to focus on Article 169 procedure, given that the ongoing discussions, the specificity of the issue and the numerous doctrinal literature on the decentralization of competition policy would make our contribution very limited [See e.g. BOS, Pierre-Vincent "Towards a Clear Distribution of Competence between EC and National Competition Authorities" (1995) 7 European Competition Law Review 410-416; ALFORD, Roger "Subsidiarity and Competition: Decentralized Enforcement of EU Competition Law" (1994) 27 Cornell International Law Journal 271-302; EHLERMANN, C.D. "The European Administration and the Public Administration of Member States with regard to Competition Law" (1995) 8 European Competition Law Review 454-460.]. The 10 September 1996 the Commission published, in the Official Journal, a Draft Communication on cooperation between the Commission and national authorities concerning the application of Articles 85 and 86 (OJ No. C262/5).
[ ]130Cf. Case 43/75 Defrenne v. Sabena [1976] ECR 455-494, especially in paras. 72, 73, pp. 481, 482. Until that moment less than thirty procedures had been initiated against Member States.
[ ]131Cf. BIEBER, Roland "Comment on Case C-52/90, Commission v. Kingdom of Denmark, [1992], I-2187 and Case C-362/90, Commission v. Italian Republic, [1992], I-2353" (1993) 30 CMLRev. 1207.
[ ]132The DG XI is trying to involve Member States in the solution of complaints referred to it for minor questions. In cases the Commission attempts to put the person that complains into contact with the responsible national administration.
[ ]133According to Commission officials interviewed.
[ ]134DEHOUSSE, JOERGES, MAJONE and SNYDER "Europe After 1992: New Regulatory Strategies", (1992) 31 EUI Working Paper Law 77.
[ ]135Cf. LOUIS, 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, pp. 408, 409.
[ ]136source: interviews with Commission officials. They referred to an internal document.
[ ]137Position of the European Commission of defining and implementing the principle of subsidiarity, published in Agence Europe, European Documents, No 1804/05, 30 october 1992, p. 14.
[ ]138Commission communication to the council and the Parliament on "Reinforcing the Effectiveness of the Internal Market" (COM(93) 256 final) p. 14. This is particularly true in the environmental policy according to some Commission officials interviewed.
[ ]139Cf. Case T-24/90, Automec Srl v. Commission (Automec II) [1992] ECR II-2223 to II-2284.
[ ]140See TIMMERMANS C.W.A., "Rapport Communnautaire" in La sanction des infractions au droit communautaire, (Lisbon: XV F.I.D.E. Congress, 1992) p. 32.
[ ]141TIMMERMANS, C.W.A. "Judicial Protection against Member States: Articles 169 and 177 Revisited" in CURTIN D. & HEUKELS T. Institutional Dynamics of European Integration op. cit. p. 394.
[ ]142Commission communication to the council and the Parliament on "Reinforcing the Effectiveness of the Internal Market" (COM(93) 256 final) p. 14.
[ ]143In that letter the Commission goes on to say: "It is therefore in your interests to make maximum use of the means of redress provided for under the law of your country, particularly if a national measure is considered to be the cause of the action. Responsibility for ensuring that national authorities comply with Community law lies primarily with the national courts, provided the Community provisions concerned are sufficiently clear, precise, complete and unconditional. Where appropriate it is also the national courts which may order a Member State to pay damages to individuals who have suffered from an infringement of Community law by that State". However, in spite of this advice to complainants, the practice followed by the Commission does not always respects such a statement.
[ ]144See DIEZ-HOCHLEITNER, Javier "La respuesta del TUE...op. cit. p. 888, also EBKE, Werner F. "Les techniques contentieuses d'application du droit des Communautés européennes" (1986), 22 RTDE 219, 220; EVANS, A.C. "The Enforcement Procedure of Article 169 EEC: Commission Discretion" (1979) 6 ELR 451.
[ ]145HOUSE OF LORDS, Select Committee on the European Communities, Session 1991-92, 9th Report: Implementation and Enforcement of Environmental Legislation, (London: HMSO) p. 17.
[ ]146Cf. House of Lords, 9th Report, 1992, op. cit. p.31.
[ ]147See TIMMERMANS, C.W.A. "Judicial Protection against Member States: Articles 169 and 177 Revisited" in CURTIN D. & HEUKELS T. Institutional Dynamics of European Integration op. cit. pp. 397-400.
[ ]148See, Case C-247/89 Commission v. Portugal [1991] ECR I-3659 to I-3694, paras. 15-19, pp. 3687, 3688. See also Advocate General's opinion in Case C-24/91 Commission v. Spain [1992] ECR I-1989 to I-2007, paras. 8-13, pp. 1996, 1997.
[ ]149See further down for comments on the decisions of judicial bodies.
[ ]150Cf. SG(95) D/5798. 94/4466.
[ ]151See, for example, Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. [1978] ECR 629-657; Case 14/83 Von Colson and Kamann [1984] ECR 1891-1920.
[ ]152See Advocate General Jean Pierre Warner' conclusions in Case 30/77 [1977] ECR 1999-2028, p. 2020.
[ ]153Until now, a 169 procedure for infringements committed by national courts has never been submitted to the ECJ.
[ ]154However, the ECJ has stated in broad terms that the existence of remedies available through the national courts cannot in any way prejudice the use of Article 169 procedure since the two procedures have different objectives and effects: see Case 85/85, Commission v. Belgium [1986] 1149-1170, para. 24, p. 1168.
[ ]155See JACQUE, Jean Paul and WEILER, Joseph. H. "On the Road to European Union- a new Judicial Architecture: an Agenda for the Intergovernmental Conference" (1990) 27 CMLRev. 199.
[ ]156ELAZAR, Daniel J. American Federalism. A View from the States (New York: Thomas Y. Crowell, 1972. 2nd edition) pp. 73, 80-83. In spite of some important differences between the federal and the Community system, the former still remains as a powerful model of comparison, cf. JACQUÉ, J.P. "Cours général de droit communautaire", (1990) 1/1 Recueil des Cours de l'Académie de Droit Européen, especially p. 265.
[ ]157See, for example, Council Regulation (EEC) No. 2088/85 concerning the integrated Mediterranean programmes (O.J. 1985 L197/1), for example, Article 16. See also Council Regulation (EEC) No. 792/93 establishing a cohesive financial instrument, although it is the Member State that has to allow this direct relation between the regions and the Commission [see Articles 8(4) and 9(6)] (O.J. 1993, No. L79/74).
[ ]158See Case 77/69, Commission v. Belgium [1970] ECR 237-247, para. 15, p. 243. See e.g. also Case 199/85, Commission v. Italy [1987] ECR 1039-1060, where the State is held responsible for breaches committed by municipal authorities.
[ ]159See CASANOVAS Y LA ROSA, Oriol "La acción exterior de las Comunidades Autónomas y su participación en la celebración de Tratados internacionales" in PEREZ GONZÁLEZ, Manuel (ed.) La acción exterior y comunitaria de los Länder, Regiones, Cantones y Comunidades Autónomas, Vol. I, (Vitoria-Gasteiz: Instituto Vasco de Administración Pública, 1994) p. 61.
[ ]160Cf. CONSTANTINESCO, Vlad "Comunidades europeas, Estados, regiones: el impacto de las estructuras descentralizadas o federales del Estado en la construcción comunitaria" (1989) 16/1 Revista de Instituciones Europeas 13.
[ ]161Cf. Case 26/62 Van Gend en Loos v. Netherlands Fiscal Administration [1963] ECR 1-30, p. 12.
[ ]162In this sense, PESCATORE has interpreted the Case Van Gend et Loos as the consequence of an understanding of the European Community as "Communauté non seulement d'Etats, mais également de peuples et de personnes" [PESCATORE, P. "Aspects judiciaires de l'acquis communautaire" (1981) 17 RTDE 636].
[ ]163Cf. MACRORY, Richard op. cit. pp. 356-357.
[ ]164Cf. COX, Andreu The Single Market Rules and the Enforcement Regime after 1992 (Winteringham: Earlsgate Press, 1993) p. 242.
[ ]165Cf. Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (O.J. 1989 L395/33)
[ ]166For a more detailed analysis of the difficulties of central States in enforcing EC law on their regions, see: POCHMARSKI, Robert, Substitutive Powers vis-à-vis Regions. A Means to Improve Compliance with European Law? The Cases of Germany, Italy, and Austria. -LL.M Thesis- (Florence: European University Institute, 1995). See also ORDÓÑEZ SOLÍS, David La ejecución del Derecho Comunitario en España (Madrid: Civitas, 1994) pp. 177-199, 435-464.
[ ]167See Case 1/86, Commission v. Belgium [1987] ECR 2797-2810, para. 9, p. 2805.
[ ]168See Case C-296/92 Commission v. Italy [1994] ECR I-1 to I-14, paras. 12 and 13, pp. I-12 and 13.
[ ]169Case 103/88 Fratelli Costanzo v. Comune di Milano [1989] ECR 1839-1872, paras. 30 and 31, pp. 1870, 1871. See also Case C-431/92, Commission v. Germany [1995], ECR I-2189 to I-2227. In this case, the ECJ disregarded the argument forwarded by Germany that public authorities can only be blamed for not having applied the provisions of a directive with direct effect when they failed to take account of the legal position of individuals protected by the directive. According to the Court, the obligation of public authorities to comply with those provisions of an unimplemented directive, which are unconditional and sufficiently precise, is quite separate from the question of whether individuals may rely on those provisions (paras. 24 and 26, pp. I-2220, 2221).
[ ]170This conflict is patent in Case C-431/92 Commission v. Germany, cit. See, in particular the Advocate-General's Opinion (Mr. ELMER), para. 12, p. I-2199. Another conflict may occur if a directive is transposed into national law by both the national and the regional government, but in a different way.
[ ]171This has been suggested by HESSEL, Bart and MORTELMANS, Kamiel "Decentralized Government and Community Law: Conflicting Institutional Developments?" (1993) 30 CMLRev. 935-936.
[ ]172This name was suggested to me by Prof. R. Dehousse during a seminar where I was presenting a preliminary draft of my thesis.