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Article 155 of the EC Treaty grants to the Commission a general power: "to ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied". The exercise of this general power, however, is framed into several procedures. Some of these procedures have been created by the EC Treaty.[2] In this sense, the most general and common procedure, created by the Treaty, to fight against Member States' failures to comply with their obligations is laid down in Article 169.[3] However, there are three different kinds of exceptions in the Treaty to the normal use of Article 169 procedure, to persuade Member States to change their behaviour if they have failed to fulfil their obligations under the EC Treaty. Firstly, where direct access to the ECJ is allowed without the need of a previous administrative phase, cf. Articles 100a(4) and 225.[4] Secondly, cases where the potential intervention of the ECJ is the result of a different kind of administrative procedure, cf. Article 93(2) and Article 90(3).[5] Thirdly, cases where an administrative-political procedure has been designed which reduces the role of the Commission to the benefit of the Council, cf. control of excessive national public and debt deficit: Article 104c.
Furthermore, the Treaty grants special powers to the Commission in order to enforce Competition law on legal persons. Firstly, it may be interesting to compare the powers of the Commission granted here, with those exercised in other procedures; and, secondly, the procedural role of legal persons with that of Member States in other procedures where they are subjects of Commission action.
Nevertheless, the Treaty, as Constitutional rule, does not generally define the different characteristics of these procedures in detail. In this sense, it sometimes explicitly asks for further legislative development, such as in competition policy and State aid, while in others it remains silent in this regard, as in Article 169. One exception is the new procedure introduced by the Maastricht Treaty, laid down in the new Article 104c, this time drafted in great detail by the Treaty itself.
Moreover, this complex picture has become even more intricate due to two different but complementary trends. Firstly, the Community has been creating new and reinforced administrative procedures (some better known than others), through secondary legislation and other means, not clearly based on the Treaty. Consequently, the field of application of Article 169 procedure has become reduced.
Secondly, the Commission and Member States have started to develop more modern and informal means of cooperation (i.e. partnership and networks) with direct consequences for the supervision and enforcement of EC law.
This article attempts to systematize the main set of administrative infringement procedures and the new means of reinforced cooperation existing under EC law, as an exception to the normal application of Article 169 procedure.
However, an analysis in depth of the functioning of the different procedures does not correspond to the scope and size of this study. Instead, I will concentrate my analysis on the following issues:
Firstly, this article will analyze the type of legislation employed for the creation and development of each procedure. Together with the case-law of the ECJ, three kinds of rules can be used concerning these procedures: primary law (i.e. the Treaty), secondary law and different forms of soft law.[6] It is important to analyze this issue, because the different type of legislation presupposes a different participation between the Commission and the Member States within the Council as law-makers. This different participation can influence their role as supervisors and enforcers of the application of the EC law. Secondly, this article will also draw attention to the reasons and purposes that have been used to justify the creation of special or reinforced procedures. Thirdly, the interaction between the different procedures, taking as its main point of reference the Article 169 procedure, will also be examined. Finally, the article will deal with possible explanations of the proliferation of reinforced procedures and offering some conclusions.
[ ]2I will not analyze the procedures laid down in the framework of the ECSC and EAEC Treaties, such as those established by Articles 58 and 59 ECSC Treaty -intervention in the production of coal and steel- or the procedure stated in Articles 79, 82 and 83 of EAEC Treaty -security of nuclear materials. Nevertheless, references will be made to those Treaties when it appears relevant for the analysis of the EC infringement procedures.
[ ]3Henceforward it will be referred to as "Article 169 procedure".
[ ]4The paragraph 4 of Article 100 has become the number 8, after the amendment of this Article made by the Treaty of Amsterdam, still pending final approval and ratification.
[ ]5In John Usher's words, the proceedings framed in Articles 225, 100a(4) and 93 could be called "Expedited proceedings": USHER, John & PLENDER, Richard Plender and Usher's Cases and Materials on the Law of the EC (London: Butterworths, 1993) p. 133. See also Articles 38, 82 Euratom Treaty.
[ ]6The concept of soft law can be considered an evolving concept that has no precise limits as yet. For the problems of this concept in Community law see: SNYDER, Francis "Soft Law and Institutional Practice in the European Community" in MARTIN, Stephen The Construction of Europe. Essays in Honour of Emile Noël (Dordrecht: Kluwer, 1994) pp. 197-225; WELLENS, K.C. and BORCHARDT G.M. "Soft Law in European Community Law" (1989) 14 European Law Review 267-321. In the latter can be found a classification of Community soft law according to forum, form and content (at pp. 296-302).
On the problems of using different legal forms see: SNYDER, F. "EMU -Metaphor for European Union? Institutions, Rules and Types of Regulation" in DEHOUSSE, Renaud (ed.) Europe After Maastricht: An Ever Closer Union? (München: Law Books in Europe, 1994) pp. 82-84.