Jean Monnet Center at NYU School of Law


A Deeper Insight Into Article 169

Dr. Alberto J. Gil Ibáñez


Article 169 EC Treaty has been traditionally one of the most important contributions of Community law to the construction of a legal model of regional integration. However, in spite of its importance, we can observe a lack of clear rules and in-depth analysis in this area. In fact, at present, there are only some internal rules, for coordinating the treatment of infringements within the Commission itself, and the case-law of the ECJ which has been forced to solve some of the problems of the daily functioning of this procedure. Therefore, a study that will analyze all the obscure points of this procedure in a comprehensive manner was much needed. Issues such as: deadlines to act, discretion, the Commission's power to state the specific measures that must be adopted, the scope of Member States' obligation to comply, the right to the defence of Member States, the burden of proving the breach, and some possible legal and non-legal limits to the use of this procedure, will be studied. Furthermore, since the main actors of this procedure are two administrations, we cannot underestimate the importance of some analysis concerning their internal organization and their interaction in this regard, something that legal doctrine tends to ignore. In order to fill that gap, this paper deals with the problem of administrative coordination, both from an internal and from a bilateral point of view (between the Commission and Member States) underlining its present positive and negative points. Finally, this article is not limited to a descriptive model but it attempts to generate proposals and suggestions for a possible improvement of the present model.




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