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3.2. Internal coordination of national administrations to respond to the Commission's monitoring action: Comparative research.

• 3.2.1. Previous remarks.
  • 3.2.2.2. General results of the comparative research (see tables on the following pages)
• 3.2.3. Case study: Germany, basis for a model?

3.2.1. Previous remarks.

Given the paucity of research done in this area, I considered it necessary to undertake a detailed comparative research. With this purpose in mind, in 1993 a questionnaire was sent to the national officials responsible for dealing with the coordination of Article 169. The replies to the questionnaire were completed during the following two years.[186]

The results of the research are analysed in three parts. Section 3.2.2. analyses the answers of twelve Member States (the new Member States after the last enlargement were not considered). Section 3.2.3. is devoted to a case-study: Germany was subject to a special analysis due to the fact that it is one of the few countries with written rules concerning interministerial coordination on this subject. In fact, we wonder whether its more elaborate system might be used as a model in certain aspects for other countries.

Finally, the analysis of the positive and negative points and suggestions for improvement of the present system of coordination between the Commission and national administrations appears in Section 3.3., since this analysis refers to problems of coordination between administrations. Such a study is based on a comparison between the opinions and comments of national and Commission officials.

3.2.2.2. General results of the comparative research (see tables on the following pages)

The questions sent to national officials were:

1. What is the structure of the unit responsible for coordinating the reply of the State in infringement procedures initiated by the Commission?

2. What is the interministerial coordination system?

3. If the structure is decentralized, what is the system of coordination with the regional and local administrations?

4. Do the people who have taken on the defence in the procedure initiated by the Commission, prior to the application to the Court, also defend the State's interests before the Court of Justice in the case of actions for failure to fulfil obligations?

5. What are the main positive and negative points in your relations with the Commission in the framework of these procedures?

6. What would be your suggestion, based on your experience, for improving the procedure for monitoring the application of Community law?

The answers obtained to questions one to four, which refer to the system of internal coordination existing in each country, are summarized country by country in several tables appearing on the following pages under the headings: interministerial coordination system (i.e., administrative and judicial phases) and coordination with regional and local administrations. In a different column, the system of coordination for the transposition of directives is also analysed in order to compare it with the system used by national administrations to coordinate the infringement procedures.[187] The answers to questions five and six appear in Section 3, which deal with problems of coordination between national administrations and the Commission.

There are several conclusions that can be drawn. First, there is no one clear model of administrative coordination for the supervision of Community law. However, in most Member States, one unit is in charge of the administrative phase of Article 169 procedure and another of the judicial phase. Therefore, there is a risk that contradictory positions or lack of efficient circulating of information may occur.

Whereas in six Member States some formal coordination is assured because these two units belong to the same hierarchical State entity (B, DK, D, F, I, NL, P), in four Member States they belong to different State entities (GR, E, IRL, UK); in Spain the separation is more radical since different groups of civil servants deal with each aspect. More concretely the Spanish Legal Service is made up of "Abogados de Estado", a special type of legal official usually responsible for defending the State before the ordinary courts (see tables). However, a certain degree of coordination is always assured. For example, in the United Kingdom the Treasury Solicitors are involved in both phases of the procedure. Denmark and Luxembourg can be considered special cases. In DK a series of Committees assures coordination in both procedures (see tables). In L each ministry is responsible for the cases referring to its field of interests; the central coordination can therefore be considered weak (see tables). The system works, however, due to the low number of cases and the relatively small size of the administration.

Second, some countries follow a sort of general strategy in dealing with infringement procedures. Thus, in the UK there are already general instructions to the ministries to comply with EC law in the administrative phase, unless there are serious reasons to oppose the Commission's action. However, this decision has to be taken by all the parties involved in the procedure (see tables). The UK has also a "Guidance for Officials" which contains the instructions to be followed in procedures related to the EC, including the Article 169 procedure. In this sense, the UK and D can be considered the two countries where strategic coordination is best.[188]

Third, the situation concerning infringement procedures can be compared to the problem of coordination in the transposition of directives. While in most Member States the same administrative unit is in charge of both the Article 169 procedure and checking transposition of Community law (i.e. D, E, F, I, NL, UK), in other Member States (B, IRL, GR, P) different units deal with such aspects. For example and more concretely, in Ireland they belong to the same entity, whereas in Greece the two units even belong to different State entities (see tables). A special case is Denmark, where the aspect of transposition is given greater importance and the participation of the national Parliament is clearly relevant, due to the fact that the transposition usually affects the legislative powers (see tables).

In sum, the "compromising bureaucracy", which, in Brussels, is negotiating the contents of the EC rules, the "implementing bureaucracy", which transposes EC rules into national law, and the "enforcing bureaucracy" can differ from each other.[189] Furthermore, there are cases where one administrative unit is in charge of checking the process of transposition, a different one coordinates everything related to the first part of the Article 169 procedure (formal notice and reasoned opinion), and a third deals with the judicial defence before the ECJ. This lack of efficient coordination may make Member States less efficient not only in supervising and enforcing EC law, but also in defending their interests before the ECJ. In fact, the rate of Member States' success has not been very high: out of 52 cases brought by the Commission against Member States, and which were decided by the ECJ in 1990, 1991 and 1992, 40 were for the Commission, and only 1 for the Member States.[190]

Finally, it also appears that most of the national coordination systems still owe more to established national traditions than to the demands of enforcing EC law. National administrations appear to be better prepared to apply law directly -including EC law- than to supervise other departments and to assure coordination between them in order to ensure that the application of EC law is made correctly.[191] In fact, most of the countries did not start anew and design a system for coordinating their action to supervise and enforce EC law from first principles.

NATIONAL COORDINATION SYSTEMS FOR THE SUPERVISION AND ENFORCEMENT OF COMMUNITY LAW

3.2.3. Case study: Germany, basis for a model?

This section is the result of some interviews with the German officials responsible for coordinating the infringement procedures within the Ministry of Economic Affairs, the analysis of several documents provided by them, and subsequent correspondence in order to clarify and up-date some points.[194]

A. Structure of the unit responsible for coordinating the reply of the State with respect to infringement procedures initiated by the Commission.

The Ministry responsible for the coordination of Germany's present policies with the EC is the Ministry of Economic Affairs[195], which has a division for European matters (Europaabteilung). This division is subdivided into two sections: Internal Market, on the one hand, and EC Law and External Relations, on the other. These sections are in turn subdivided into different units, which total seventeen altogether. The unit responsible for coordinating the reply from the State in infringement procedures initiated by the Commission comes under the "EC Law and External Relations" section and is called "Law of the EC and other European Organizations, and infringement procedures unit".

This coordination function is based on the principle whereby each ministry is responsible for the international organizations which concern its field of interest. Therefore, when the Commission of the EC initiates a procedure against Germany, the formal letter and the reasoned opinion are sent by the Permanent Representation in Brussels not only to the ministry specifically competent in the subject matter, but also to the Ministry of Economic Affairs, which is in charge of interministerial coordination, and to other ministries interested in European policy matters, such as the Ministry of Foreign Affairs and the Chancellor's Office.

B. Interministerial coordination system.

A Decision adopted on 26 March, 1990 by the Committee of Secretaries of State for European Affairs describes the principles and procedures that must guide the handling of infringement procedures by the German administration (cooperation between ministries as well as with the Commission).

After the Commission has instigated proceedings against Germany, the ministry primarily competent (Federfuehrend) in the subject in question draws up a draft reply, which is then sent to the other ministries concerned with the subject matter, as well as to the Ministry of Foreign Affairs, the Ministry of Economic Affairs and the Chancellor's Office. Before the final reply is forwarded to the Commission, it must first be approved by the Ministry of Economic Affairs, which, as already explained above, is the one responsible for the coordination of European policy. Therefore, if the Ministry of Economic Affairs does not agree with the draft reply, it will submit suggestions for a reformulation. If necessary, an interministerial discussion is held between the ministries concerned by the subject, which enables the interests of Community law and policies to be evaluated vis-à-vis the interests of the sector-based policies. If an agreement is not reached, the matter is sent to the heads of division (Abteilungsleiter). If consensus is not reached at this level, there is a special organ in charge of dealing with these problems: the Committee of Secretaries of State for European Affairs (Ausschuß der Staatssekretäre für Europafragen). A further possible stage would be to take the matter to the Cabinet, but this situation occurs extremely rarely, as questions are usually too technical to be discussed at this level. The Ministry in charge of coordination (i.e., the Ministry of Economic Affairs) cannot always overcome the opposition of another ministry involved in the matter, which is primarily responsible for the subject matters that fall within its domain.

The final reply is then sent in the form of a "federal government communication" to the Permanent Representation of Germany in Brussels, which in turn forwards it to the Secretary-General of the EC Commission and to the responsible unit of the Commission. The latter measure is not an official procedure, but has proved to be an excellent way of liaising and coordinating with the Commission services. A copy of this reply is also sent to the ministries concerned and to those in charge of European affairs (the Ministry of Foreign Affairs, the Ministry of Economic Affairs and the Chancellor's Office), as well as to the Länder concerned.

The unit in charge of the coordination of the infringement procedure prior to an application to the Court of Justice of the EC is run by three officials. Besides this task, it also has other responsibilities, i.e., giving advice to other Departments of the Ministry and to other ministries on EC law, providing opinions on legal aspects of EC matters and coordinating the government position on these questions. The work of this unit with respect to infringement procedures has been intensified since 1987, when it started to collect these cases in order to deal with them systematically.

Once a year, the Committee of Secretaries of State for European Affairs discusses the developments of infringement procedures initiated against the Federal Republic of Germany, on the basis of the Commission's annual report on the supervision of the implementation of Community law. Also once a year, the Ministry of Economic Affairs submits a report on infringement procedures and the application of Community law in Germany to the relevant committee of the Bundestag.

While awaiting a final legal regulation to be adopted by the government, the provisional settlement of an infringement procedure will have been published several times in the Bundesanzeiger (Federal Journal, published by the federal government) at the request of the competent ministry; this publication contains administrative instructions from the federal government and legal indications to the administrative instructions of the Länder concerned.

C. System of coordination with the regional and local administrations

When an infringement procedure is initiated, the federal government (Bund) consults the Land or Länder if they are affected by the case (for instance, cases involving laws on food, health, public procurement, environment, etc.), or if their powers are affected by the legislative measures. The responsible federal ministry decides whether to make this consultation or not.

In the event of disagreement between the federal ministry and the Land, the Committee of Secretaries of State for European Affairs may have to give an opinion on the matter (after hearing the Land concerned, since Länder are not represented within this body). However, this situation has rarely arisen in practice.

When proceedings initiated by the Commission concern a Land, the case is always conceived as a political issue. Representatives of the Länder may take part in the discussions with the services of the Commission, but the leadership of the delegation is in the hands of the federal ministry concerned. For example, Länder are usually invited to take part in "package meetings" with the Commission if they are directly concerned with one or more cases.

Furthermore, if an infringement procedure affects the local administration, it is the responsibility of the Land to ensure the necessary coordination at that level, since local administration is integrated in the Land administration.

Since 1992, the federal government has held annual meetings with the Länder on the developments of infringement procedures, especially of those against Germany. It may also be possible that a case relates to all the Länder in general. This has happened, for instance, with the implementation of directives on public procurement and television.

D. Do the people who have taken on the defence initiated by the Commission, prior to application to the Court, also defend the State's interests before the Court of Justice in the case of actions for failure to fulfil obligations?

The defence of the State's interests before the Court of Justice in the event of infringement actions comes under the responsibility of a different unit from that in charge of the defence prior to application to the Court, whereas before 1987 both functions were performed by one single unit.

When an action is brought against Germany by the Commission, it goes directly to the unit responsible for the defence of the State's interests before the Court of Justice, along with the file of the case that has been made up by the "EC law and infringement procedure unit".

The success of the coordination between these two units depends greatly on the good personal relations which exist between the people running them. They have, however, a common superior who is able to settle any differences between them. The common superior of these two units is the head of the whole section, and the latter has many more extensive responsibilities.

[ ]¹⁸⁶Most of the national officials answered during 1993. However, the information referred to Luxembourg was completed in 1994 and the answers from UK and DK after some unsuccessful attempts were received in the first half of 1995. This research relies on the answers of the officials who were contacted, therefore, the degree of detail and perfection varies in accordance with the degree of collaboration and interest showed from those officials.

[ ]¹⁸⁷Concerning the transposition of directives, there is some information that has been obtained from PAPPAS, Spyros A. (ed.) National Administrative Procedures for the Preparation and Implementation of Community Decisions (Maastricht: EIPA, 1995). The abbreviations used to identify the Member States that answered the questionnaire are the following: B (Belgium), D (Germany), DK (Denmark), E (Spain), F (France), GR (Greece), I (Italy), L (Luxembourg), IRL (Ireland), NL (The Netherlands), P (Portugal), UK (United Kingdom).

[ ]¹⁸⁸On the German case, see Section 3.2.3.

[ ]¹⁸⁹See WEILER, J.H.H. "The White Paper and the Application of Community Law" in BIEBER, Roland; DEHOUSSE, Renaud; PINDER, John; WEILER, Joseph (eds.) 1992: One European Market? op. cit. p. 354.

[ ]¹⁹⁰Source: Twelfth Annual Report on Monitoring the Application of Community Law (1994) Com(95) 500 final. Brussels, 07.06.1995.

[ ]¹⁹¹See ORDÓÑEZ SOLÍS, David La ejecución del Derecho Comunitario en España (Madrid: Civitas, 1994) pp. 136, 137.

[ ] ¹⁹²For more information about the Spanish system of coordination see: GIL IBAÑEZ, Alberto J. "La coordination en Espagne de la procédure précontentieuse communautaire de contrôle et la défense des interets de l'Etat devant la Cour de Luxembourg" (1992) 3 Rivista di Diritto Europeo 559-572.

[ ]¹⁹³This policy officer is different from the one responsible for monitoring transposition, but both of them belong to the same unit.

[ ]¹⁹⁴I am personally and particularly indebted to Mr. von Borries from the "Bundesministerium für Wirtschaft", who kindly answered my questions at his office in Bonn and to Mrs. Renate Hach who gave due reply to my letters during the first half of 1995. See also table II.

[ ]¹⁹⁵Matters related to the EC have been assigned to this Ministry since the 1950s, as well as all matters related to other international organizations dealing with economic liberalization.

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