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Under this title, I include the infringement procedures related to breaches, for which Member States can be held responsible. These procedures were created by secondary legislation as a result of the particular bargaining between the Commission and the Council. However, the Treaty shows no indication that these procedures were needed. In fact, some of these procedures can be considered as special exceptions to the application of Article 169 procedure, although they are not presented, at least formally, as such.
In public procurement, a twofold development is taking place. On the one hand, a trend towards harmonizing national remedies; on the other, the setting up of some special rules for the treatment of infringements by the Commission.[60]
Concerning the harmonization of national remedies, the Compliance Directive lays down minimum common conditions for remedies, rather than aiming at full harmonization. For example, Article 2 of the Compliance Directive requires that all Member States must provide for the power to award interim measures, the setting aside of unlawful decisions, and damages. As a consequence, an administrative body can be granted the power to award interim measures, if a Member State decides that the review body be administrative in nature.[61] This approach could be followed as well, by a future and more general European Administrative Enforcement Act.
As far as the powers of the Commission are concerned, the latter included, in its proposal, two new tools, which were eventually not accepted by the Council. First, the Member States' obligation to guarantee the possibility for the Commission to intervene in the national administrative or judicial procedures in order to ensure the precedence of Community public interest.[62] Second, the power to suspend, in case of urgency, a contract award procedure for a period that could not exceed three months. This could have implied the Commission's power to award directly interim measures. Given that this proposal was also rejected, the Commission still depends on the ECJ to award such measures.[63]
Although the Commission did not obtain all the new tools it demanded, it managed to include some special means, in the public procurement area, which differ from Article 169, and can be considered as a special development of Article 169 procedure, applied to a particular area.[64]
First, several conditions have to be fulfilled in order to initiate this special procedure -hereinafter referred to as "the public procurement procedure": (1) the contract has to be an unfinished one; (2) it has to be an infringement related to award procedures falling within the scope of the public works and public supplies Directives, or, in other words, for major contracts;[65] (3) the breach has to be "clear and manifest".
It seems clear that if those conditions are not fulfilled, the rest of the contracts will have to follow the "normal" Article 169 procedure. However, if the conditions are fulfilled, the following peculiarities are applied:
(1) The Commission has to notify not only to the Member State, but also to the contracting authority (which could also be, for example, a regional or local authority), the reasons, which have led to the conclusion that a clear and manifest infringement has been committed. However, any attempt here to ensure the application of Community law, by the Commission, has also to pass through the Member State itself.[66]
(2) A clear deadline is established for the response of the concerned Member State.
(3) The possible contents of the response of the Member States are also clearly stated in the directives.[67]
The ECJ has stated that this procedure constitutes a preventive measure that does not exclude the possibility of initiating a "normal" Article 169 procedure. In fact, the latter is not conditioned by the existence of a clear and manifest breach, according to the Compliance Directive.[68]
The public procurement procedure deserves some comments. First, since it refers to the relations between the Commission and Member States, it could just as well have been the subject of a regulation, instead of a directive. Second, as has already been pointed out, the Commission's original proposal was intended to bestow far reaching tools of enforcement to the Commission, which were not finally accepted. As a consequence, and taking account of the final text adopted, it is difficult to see the reasons that justified the peculiarities introduced. In fact, as has been said "[T]he distinction for remedial purposes between procedures which are subject to the Directive and those which are not is anomalous, and a potential source of complexity and confusion".[69]
Nevertheless, some Commission officials interviewed supported the fact that the specificity of this area justifies a special treatment. First, according to them, this specificity is based on the fact that State intervention in the economy and the financial interest at stake are of analogous importance to "State aid", an area which, as we have seen, has a special procedure created by the Treaty. Second, a further proof of the said specificity is that the Commission is analysing the possibility of amending the Compliance Directive in order to grant the Commission the power of directly imposing sanctions. Finally, a proof of the specificity of this area is that it is one of the few cases where a Commissioner -the one responsible for the Single Market- can decide on the administrative phase of Article 169.
However, in broader terms, it can be said that a specific area should not serve to justify a specific procedure, but the specificity of the situation is what could justify a different way of handling infringements. For example, the urgency or the possibility of irreparable damage, which can be found in other areas and not only in public procurement. In fact, all the tools, included in the public procurement procedure, could be useful in other areas requiring the same urgency. An example is the power to award interim measures by national authorities. Furthermore, the interaction between the public procurement procedure and Article 169 procedure is not clear.[70] Indeed, the present case-law of the ECJ, concerning the Article 169 procedure, allows the Commission to reduce the time-limits when reasons of urgency justify it. Even if the purpose of the Compliance Directive is to formalize that possibility, it can be argued that either this procedure is extended to all the areas, where an element of urgency justifies its use, or it would be better abrogated.
The Directive 83/189 requires Member States to notify the Commission of any planned technical rule or regulation, unless there is, in fact, transposition of an international or European standard, in which case information regarding the relevant standard shall suffice.[71] It has been applied to all goods since 1988.[72] The Commission sends a copy of the original and translated versions to all the other Member States.[73] The Member State concerned has, during three, four or six months -depending on the type of technical rule- to refrain from adopting the act.[74] During that period, the Commission has to decide whether it drafts a new directive, regulation or decision on the matter subject to regulation. The period of "stand-still" is, then, prolonged up to one year; or it prepares a "detailed opinion" ("avis circonstancié", in the French version) with the recommended amendments on the rule communicated; the "stand-still" period is prolonged, then, up to six months. If none of those decisions are taken, the Member State can freely adopt the text of the technical rule. However, this does not preclude the Commission from initiating an Article 169 procedure if it considers that the rule, eventually adopted, does not comply with EC legislation.[75] The Commission usually considers the detailed opinion as having the value of a "formal notice", under the Article 169 procedure.[76] Therefore, the next possible step will be to send a "reasoned opinion".
There are some particularities, which differentiate the Directive 83/189 from the "common" procedure, under Article 169. First, it "implies a blockade of the legislation of Member States".[77] In can be argued, however, that the introduction of this sort of interim measure would have required, either a specific Treaty provision, or the use of Article 235 legal basis. The Directive 83/189 was based on Articles 100 and 213 of the EEC Treaty. Only a broad interpretation of those Articles might consider them as covering the blockade of national legislation not yet adopted. In fact, this powerful tool was unknown in other areas of Community law, until the recent amendment of Article 100a.4 by the Treaty of Amsterdam. In any case, what seems clear, in the absence of a clear legal basis in the Treaty, is that such a procedure would have to be adopted by the Council, i.e. by the Member States, since it implies an important limitation to the legislative autonomy of Member States. In fact, the ECJ has declared void a Commission decision, which was imposing similar obligations to Member States in a specific area, on the grounds that the Commission was lacking competence to do so.[78] However, concerning the effectiveness of procedures, there are no special difficulties that might hinder the application of this tool to other areas and procedures: e.g. the transposition of some directives that could imply special difficulties for Member States because of the technical nature or novelty of the issue subject to rule.
A second difference, with Article 169 procedure, is that Member States play a more relevant role, since they are informed by the Commission, and can bring forward their observations, although the Commission remains free to accept them or not. This multilateral intervention of Member States is simply not allowed by the Commission when it acts under the Article 169 procedure.
Nevertheless, it must be pointed out that the lack of notification of a draft technical rule can be subject to the "normal" Article 169 procedure. Member States have traditionally attempted to escape the obligation to notify, by arguing that the rule challenged by the Commission was not a technical rule, in the sense of Directive 83/189, what has compelled the ECJ to clarify the scope of this Directive.[79] The Commission since 1986, has been supporting that the prohibition to adopt a national measure, without notification, has direct effect[80] (in spite of the fact that, sometimes, the non-notified rule is more favourable to the free movement of goods than the pre-existing rule).[81] The ECJ has only solved the problem recently, although it has had several prior opportunities to do so.[82] Thus, in its judgement of 30 April 1996, the ECJ held that provisions of Directive 83/189 are unconditional and sufficiently precise to be relied upon, by individuals, before a national court.[83] Nevertheless, in the case pending before the national judge that served as basis for the preliminary ruling, there were only legal persons pleading between each other; therefore, the direct effect, as far as individuals' obligations are concerned ("horizontal effect") was also an issue. However, the Court avoided this delicate question, pointed out by the Advocate General,[84] by simply stating that Directive 83/189 has to be interpreted, as precluding the application of a technical rule, which has not been notified; therefore it cannot be alleged before a national court against individuals.[85]
As resulting from this ruling, Article 169 can be of lesser use and role of national courts increase in enforcing the Member States' obligation to notify. Besides, with this debatable decision, the ECJ put the Directive 83/189 procedure on a level with the procedure, created by the Treaty in Article 93.3 (State aid), in spite of their important differences.[86]
Under the so-called third package of transport policy, the Council adopted three important regulations.[87] These three regulations imply the reinforcement of the role played by the Commission. However, the designed system, to respond to a possible lack of compliance of Member States, varies from one regulation to another. Thus, Regulation 2407/92 states explicitly, in Article 13, that when a Member State does not fulfil the requirements established by the said regulation, the Commission may use Article 169 procedure. On the contrary, the other two regulations create a special procedure to deal with certain types of Member States' lack of compliance. The main feature of this special procedure is the possibility for the Commission to resolve the conflict via a decision.[88] These regulations give some margin of manoeuvre to Member States to decide freely, but with the need of respecting certain safeguards. If these safeguards are not respected, i.e. the Member State has acted in a discriminatory way, the Commission, at the request of a Member State, or on its own initiative, on the basis of a complaint made by a party with a legitimate interest, can decide on the legality of the action.
This section will concentrate on the analysis of the procedure, stated in Article 8 of Regulation 2408/92, since this procedure has already been applied in practice. Under this regulation, Member States have, in principle, the right to distribute, without discrimination, the traffic between the airports within an airport system. The exercise of traffic rights are subject to rules relating to safety, the protection of the environment and the allocation of slots. If the Commission considers that a Member State has distributed the air traffic without respecting those conditions, it can decide, after consulting an Advisory Committee, whose opinion, therefore, is not binding, whether the Member State may continue to apply the measure. If the Commission acts at the request of another Member State, it has to decide in a month time-limit. In order to counterbalance the important power of the Commission, the regulation states the possibility, for the Member State, to refer the Commission's decision to the Council. In such a case, the Council can, acting on a qualified majority, adopt a different decision, in a month's time, in other words, it can annul the decision already taken by the Commission.
The Commission used this procedure against the French decision of refusing Community air carriers traffic rights, on the Paris (Orly)-Marseille and Paris (Orly)-Tolouse routes. Although the Advisory Committee acknowledged the incorrect application, by France, of the regulation, the majority of its members were against the possibility for the Commission to adopt a decision, based on Article 8. The Commission, however, disregarded such opposition and adopted the decision. France did not eventually refer the Commission decision to the Council. Instead, France lodged an application before the ECJ, under Article 173 of the EC Treaty, seeking for the Commission decision to be declared null and void. Further, it asked the ECJ to suspend the operation of the said decision. Notwithstanding, the President of the Court considered the necessary conditions, as not being present, to award interim measures.[89]
We can summarize the main differences with Article 169 procedure, as follows:
(1) The Commission has the power to adopt the decision, which is addressed to the non-compliant Member State, stating clearly a prohibition, for such a Member State, to continue to apply a measure considered illegal by the Commission.
(2) The Commission can also state a clear deadline, within which the Member State has to conform with the decision.[90]
(3) There are no specific rules concerning the right of Member States to be heard.
(4) Member States may bring the case to the ECJ and then to ask for interim measures. Therefore, the burden of proof lies with Member States for the award of interim measures by the ECJ.[91]
(5) The participation of Member States, as a group, is stronger here, first through the Advisory Committee, and second, through the possible intervention of the Council. In fact, this procedure implies a different balance of powers, between Member States and the Commission, compared to that of Article 169 procedure. For example, a reasoned decision adopted by the Commission, i.e. administrative body, could imply an obligation for national Parliaments to change legislation.
The main reasons for having created, in this area, these special procedures can be considered twofold. First, there was a need for quick enforcement, and other alternatives were not considered appropriate. For example, with access to air routes, the award of damages for not being authorized to fly has the problem of damages being difficult to reckon (for example, the lost profit). Furthermore, an action before national courts would last two years. A second reason, that should not be disregarded, is that Member States distrust each other when it is a question of applying a policy in a non-discriminatory way, and as a sequel of it, even the countries usually reluctant to grant more powers to the Commission agreed that the creation of a special procedure was, in this case, the most plausible solution.[92]
These special procedures still represent, however, an exception to transport policy. In fact, in most areas covered by this policy, Article 169 procedure is applicable. But it seems, that the approach of having a special procedure is to be also applied to other sectors, within the Air Transport policy. One example is the new Directive on access to the groundhandling market at Community airports.[93] The article 9 of this Directive states the possibility, for Member States, to establish some limitations to the provision of groundhandling in case of limited space in airports, but the Commission has first, via decision, either to agree with the Member State's decision, or ask for its modification. Another possible example is coordination of access to airports. This area is, at present, regulated by Council Regulation (EEC) No. 95/93.[94] However, the Commission is analysing a possible amendment, which would grant the Commission direct enforcement powers.[95]
Also, if a Member State fails to comply with the Commission decision, the Commission cannot bring the case directly before the ECJ. The only possibility is to institute the Article 169 proceedings. This lack of direct access to the ECJ poses the same questions, concerning the efficiency of a quick enforcement, already analysed in section 2.2.2. of this article, on the interaction between Article 90(3) and Article 169 procedures.
This section will not deal with the Commission's power of inspection in this area. Here, I will focus on a brief analysis of the special procedure, which attempts to quickly deal with the irregular behaviour of Member States. They can infringe EC law in two ways: first, granting money to farmers who do not fulfil the requirements stated by EC legislation, and second, by not complying with its procedural obligations, such as to provide accurate information to the Commission on time.[96]
The procedure of clearance of accounts, originally stated in Regulation No 729/70, has been amended by Council Regulation (EC) No. 1287/95.[97] However, some ECJ case-law referring to the old procedure has still to be mentioned.
The procedure has two parts. First, concerning the monthly advances. The new version of Article 5(a), of Regulation 729/70, requires the Commission, after consulting the Fund Committee, to decide on monthly advances against the allocations of expenditure effected by the accredited paying agencies. The detailed rules for the payment of monthly advances are laid down by Commission Regulation (EC) No. 296/96, of 16 February 1996, on data to be sent in by the Member States with a view to the booking of expenditure financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF).[98] Article 3(1) of that regulation requires Member States, on a regular basis, to inform the Commission on the expenditure effected. More precisely, they have to inform the Commission, on the second working day of every week, of the total amount paid from the beginning of the month until the end of the previous week. The Commission has the power, pursuant to Article 4 of the same regulation, to reduce the advanced amounts to any Member State, if payments have been made after the official deadlines have expired.[99] This possibility is based on Article 13 of the Council Decision 94/729/EC on budgetary discipline.[100] According to that Article, the Commission may defer or reduce advanced payments to any Member States, which have failed to make the EAGGF payments in accordance with the applicable EC rules. The Commission, before adopting the reasoned decision, has to give to the Member State concerned, the opportunity to submit its observations in ten days, and later on to consult the EAGGF Committee.[101] The Commission's final decision can be challenged at the ECJ.
Secondly, the new Regulation 1287/95 introduces more changes concerning the final part of the procedure, in which the Commission decides, after consulting also the Fund Committee, on the expenditure to be excluded from Community financing. Here, the guarantees for Member States have notably increased. In fact, under the former system, the right to the defence for Member States appeared reduced. Thus, the burden of proof here lay on Member States. In this sense, the ECJ stated that:
"[...] when the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breaches of Community rules imputable to a Member State, it is for the that State to show that the conditions for obtaining the financing refused by the Commission are fulfilled".[102]
While it was enough for the Commission to establish that a Member State has infringed the rules of the common organization of agricultural markets, it was for the Member State concerned to prove that the expenditure in question was not increased as a result of that irregularity, or that it was increased by an amount less than that calculated by the Commission.[103] In other words, it was enough for the Commission to present a reasonable and serious doubt about the figures communicated by the Member State concerned, while it was up to the latter to prove in detail the accuracy of those figures.[104] This solution implied a different criteria to what generally followed under Article 169.[105] In fact, the obligation of Member States to provide information was supplemented, here, by the obligation to prove any possible failures of the Commission.
Although that case-law still has some applicability, the new procedure strengthens the position of Member States and introduces the possibility of intervention of a conciliatory body before the final decision is adopted.[106]. Thus, the new version of Article 5(2)(c) of Regulation 729/70 states:
"[...]Before a decision to refuse financing is taken, the results of the Commission's checks and the replies of the Member State concerned shall be notified in writing, after which the two parties shall endeavour to reach agreement on the action to be taken.
If no agreement is reached, the Member State may ask for a procedure to be initiated with a view to mediating between the respective positions within a period of four months, the results of which shall be set out in a report sent to and examined by the Commission, before a decision to refuse financing is taken"
The powers of the Commission have been traditionally greater here, than in other procedures, due to the large amounts of EC funds which are involved. In fact, the Commission can still suspend, defer, and eventually refuse, to charge certain expenditure to the EAGGF. However, the new procedure, which was mainly a consequence of the slowness of the former process of clearance of accounts -sometimes took several years- has also resulted in a strengthening of the procedural position of the Member States during this process. However, this procedure still maintains its speciality from Article 169, although, here, the complexity and specificity of the financing of agricultural policy clearly justifies it. Nevertheless, there are still some innovations concerning time-limits (e.g. a maximum period to act), which are introduced by this procedure, that could be perfectly applied to other procedures as well.
Articles 7 and 8 of the Council Directive 92/59/EEC, on general product safety, entrusts the Commission with the task of supervising measures taken by Member States, which are likely to hinder trade.[108] The system of supervision is based, however, on the idea of partnership and networks, being the Commission responsible for assuring all the Member States concerned to be informed of the measures taken by others. In any case, the Commission retains the power to intervene, where circumstances require the adoption of appropriate measures, at Community level, by adopting a decision requiring Member States to take temporary measures from among these listed in Article 6(1)(d) to (h) of the Directive [Article 9].
An important feature of the procedure created by the Directive 92/59 is that the participation of Member States is reinforced. First, Member States are informed, by the Commission, of the measures adopted by other Member States and the existence of a serious and immediate risk from a product to the consumers' health and safety. Second, the Commission cannot adopt a decision if it is not requested to do so, by at least one Member State. Third, Member States, in the Committee on Product Safety Emergency meeting, have to be consulted by the Commission before adopting the decision. If the measures proposed by the Commission are not in accordance with the Committee's opinion, or in the absence of an opinion, the former has to submit, to the Council, a proposal regarding the measures to be taken.[109]
Nevertheless, this procedure can interact with Article 169 procedure. In fact, the power of the Commission, to adopt the above decision, referred to, was challenged by Germany before the ECJ, in Case C-359/92. One of the grounds of the application was that:
"[...]those powers encroach unnecessarily upon the Member States' own powers since the Commission can attain the same objectives by recourse to the infringement procedure under Article 169 of the Treaty and, where appropriate, by making an application to the Court for the adoption of interim measures".[110]
The ECJ, however, rejected this argument, on the basis of Article 169 procedure, which, according to the Court, did not permit to achieve the results set out in the Directive 92/59. First, because Article 169 procedure does not allow the Commission to oblige the Member States to take a specified measure, from among those listed in Article 6(1)(d) to (h) of the Directive. Second, even if Member States are required to adopt certain specified measures, under the Directive, the obligation of the Commission to institute proceedings against every Member State that had failed to adopt such measures, would render the procedure more cumbersome. Third, the need for a pre-litigation stage, and where necessary, a judicial stage is not compatible with the urgent need to adopt a particular measure. Finally, a declaration of the ECJ, under Article 169, would be less effective than a Community harmonization measure.[111]
This procedure is a new example, in which the ECJ has clearly recognized, as a consequence of new developments in EC legislation, that Article 169 procedure is no longer appropriate for all kinds of EC law infringements committed by Member States.
[ ]60See the 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), hereinafter referred to as the "Compliance Directive". This was the first time that national procedural rules were harmonized. See also the Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (O.J. 1992, L76/14), hereinafter referred to as the "Utilities Compliance Directive". For the background of these directives, see COX, Andreu The Single Market Rules and the Enforcement Regime after 1992 (Winteringham: Earlsgate Press, 1993) at pp. 246-254.
[ ]61See, in this sense, Articles 1(3), 2(1), 2(7) and 2(8) of the Compliance Directive. In Germany, for example, the first revision of a contract award is made by an administrative body, the so called the Vergabeprüfstellen. See NIEDZELA, Andrea and ENGSHUBER, Reinhard "Enforcing the Public Procurement Rules in Germany" in ARROWSMITH, Sue (ed.) Remedies for Enforcing the Public Procurement Rules (Winteringham: Earlsgate Press, 1993), pp. 362-363.
[ ]62See Article 2 of Commission's proposal (O.J. 1987 No.C 230/6).
[ ]63For interim measures in public procurement, see Order of the President of the ECJ of 22 April 1994 "Bus wallons". See also MATTERA, Alfonso "L'ordonnance du 22 avril 1994 sur les bus wallons" (1994) 2 Rev. Marc. Uniq. Eur. 161-171.
[ ]64See Article 3 of the Compliance Directive and Article 8 of the Utilities Compliance Directive. We will refer mainly to the former, given the similarity of both procedures and the major application of the Compliance Directive.
[ ]65The original Directives 71/305 EEC and 77/62/EEC have been abrogated. The new Directives of the Council are: 93/37/EEC on public works (O.J. 1993, No. L199/54), and 93/36/EEC on public supplies (O.J. 1993, No. L199/1).
[ ]66See ARROWSMITH, Sue "Enforcing the Public Procurement Rules: Legal Remedies in the Court of Justice and the National Courts" in ARROWSMITH (ed.) Remedies for Enforcing..., pp. 20-21.
[ ]67Cf. Article 3 of Compliance Directive.
[ ]68Case C-359/93 Commission v. The Netherlands [1995] ECR I-157 at I-178, paras. 13 and 14, p. 174.
[ ]69ARROWSMITH, Sue "Enforcing the Public Procurement Rules..." op. cit. p. 53.
[ ]70See Case C-359/93 Commission v The Netherlands cit.
[ ]71Cf. Article 8(1) of Directive 83/189/EEC (Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, O.J. 1983, L109/8). In fact, this Directive has enabled the Commission to prevent the adoption of national provisions of a technical nature incompatible with Community law, increasing the compliance of this kind of rule with Community law. This Directive has been amended by Directive 88/182/EEC (Council Directive amending Directive 83/189/EEC, which lays down a procedure for the provision of information in the field of technical standards and regulations -O.J. 1988 No. L81/75), and by the European Parliament and Council Directive 94/10/EC (O.J. 1994 No. L100/30). See also Commission Decision 92/400/EEC amending the list of standards institutions annexed to Council Directive 89/189/EEC (O.J. 1992 No. L221/55).
[ ]72Cf. Directive 88/182/EEC cit.
[ ]73Nevertheless, the Commission has announced its intention to apply a restrictive policy of sending translated versions.
[ ]74Cf. Article 9, in the version given by Directive 94/10 cit.
[ ]75See MATTERA, Alfonso Le Marché unique européen: Ses règles, son fonctionnement (Paris: Jupiter, 2ème ed, 1990) p. 123.
[ ]76LÓPEZ ESCUDERO has criticized this practice followed by the Commission, according to the essential value given by the ECJ to the phase "formal notice", and the fact that a "planned technical rule" cannot be considered a breach of EC law, cf. LÓPEZ ESCUDERO, M. Los obstáculos técnicos al comercio en la Comunidad Económica Europea (Granada: Universidad de Granada, 1991) p. 350.
[ ]77See, JOERGES, Christian "The New Approach to Technical Harmonization and the Interests of Consumers: Reflections on the Requirements and Difficulties of a Europeanization of Product Safety Policy" in BIEBER, Roland; DEHOUSSE, Renaud; PINDER, John; WEILER, Joseph (eds.) 1992: One European Market? op. cit. p. 208.
[ ]78See Joined Cases 281, 283-285, 287/85 Germany, France, Netherlands, Denmark and United Kingdom v. Commission [1987] ECR 3203-3258. The ECJ declared void the Commission Decision 85/381/EEC setting up a prior communication and consultation procedure on migration policies in relation to non-member countries, in so far as the objective of the consultation was to ensure that the draft national measures and agreements were in conformity with Community policies and actions.
[ ]79See Case C-273/94, judgement of 11 January 1996, Commission v. The Netherlands, nyr; see also Advocate-General's Opinion (Mr. RUIZ-JARABO COLOMER) delivered on 25 April 1996, in Case C-289/94, Commission V. Italy, nyr.
[ ]80Cf. seventh and eighth paragraphs of Commission Communication of 1 October 1986 concerning non-compliance with certain provisions of Council Directive 83/189 (O.J. 1986 No. C245/4).
[ ]81For the arguments for and against the direct effect of the obligation to notify, see: LOPEZ ESCUDERO, M. Los obstáculos técnicos al comercio en la Comunidad Económica Europea op. cit., pp. 353-358. This author supports that the non-notified rule cannot be applied to natural and legal persons only when it does not comply with Articles 30-36 EC Treaty. In that case, that prohibition will be more the consequence of the direct effect of those Articles than of the obligation to notify.
[ ]82See the interesting Case C-139/92 Commission v. Italy [1993] ECR I-4707 at I-4720, especially the Opinion of Mr. GULMANN, Advocate-General. See also Case C-273/94 Commission v. The Netherlands, 11 January 1996, nyr.
[ ]83Case C-194/94, CIA Security International v. Signalson and Securitel, 30-April-1996, at para. 44, nyr.
[ ]84Cf. Advocate General's Opinion in the same Case (C-194/94) at paras. 71-74, nyr.
[ ]85Case C-194/94, CIA..., cit., at para. 54
[ ]86This decision has been criticized by the legal literature, and not only for that reason, see: LÓPEZ ESCUDERO, Manuel "Efectos del incumplimiento del procedimiento de información aplicable a las reglamentaciones técnicas (Directiva 83/189/CEE)" (1996) vol. 23 3 Revista de Instituciones Europeas 839-861; CANDELA CASTILLO, Fuensanta "La confirmation par la Cour du principe de non-opposabilité aux tiers des règles techniques non notifiées dans le cadre de la Directive 83/189/CEE" (1997) 404 Revue du Marché Commun et de l'Union européenne 51-59.
[ ]87They were adopted and published at the same time (O.J. 1992, No. L240): Council Regulation (EEC) No. 2407/92 on licensing of air carriers (p. 1), Council Regulation (EEC) No. 2408/92 on access for Community air carriers to intra-Community air routes (p. 8), Council Regulation (EEC) No. 2409/92 on fares and rates for air services (p. 15).
[ ]88See Articles 8, 9, 10 and 12 of Reg. 2408/92 and Article 7 of Reg. 2409/92.
[ ]89For a more complete information, see Case C-174/94 France v. Commission Order of the President of the Court [1994] ECR I-5229 at I-5241. France desisted from her action by letter of 21 February 1996, which was sent to the ECJ. The Court dropped the case by Radiation of 19 march 1996. However, the Case C-301/94 is still pending. This case is a consequence of an action before the CFI, presented by Air Inter, the company affected by the Commission decision (Case T-260/94), which was joined to the Case C-174/94, already pending before the Court.
[ ]90See Decision 94/291/EC reproduced in the Order of the President of the ECJ (in Case C-174/94, cit., [1994], para. 21, in p. I-5236).
[ ]91See Order of the President of the Court, cit. above.
[ ]92For example, according to some officials interviewed, the United Kingdom was one of the most supportive.
[ ]93Cf. Council Directive 96/67 EC of 15 October 1996 (O.J. 1996 No L272/37). The Council reached the common position on the 28 March 1996, No. 21/96 (O.J. 1996, No. C134/30). The Commission's proposal was published in the OJ 1995 No. C142/7.
[ ]94(O.J.1993 No. L14/1)
[ ]95Source: interviews with Commission officials.
[ ]96For the measures that Member States should take to deal with "operators presenting a risk of non-reliability", see Council Regulation (EC) No 1469/95 on measures to be taken with regard to certain beneficiaries of operations financed by the Guarantee Section of the EAGGF (O.J. 1995, No L145/1) and the Commission Regulation (EC) No 745/96, which establishes detailed rules for the application of the above-mentioned Council Regulation (O.J. 1996, No L102/15).
[ ]97O.J. 1995 No. L125/1. In 1992 the "Belle Group" submitted a report with some solutions to improve this procedure. This Regulation responds partially to the conclusions of that report. It has been implemented by Commission Regulation (EC) No. 1663/95 (O.J. 1995 No. L158/6).
[ ]98O.J. 1996 No. L39/5. This regulation abrogates the previous one: (EEC) No 2776/88 of 7 September 1988 (O.J. 1988 L249/9).
[ ]99However, if Member States duly justify the delay they can avoid any reduction [cf. Article 4 b)]
[ ]100O.J. 1994, No. L293/14.
[ ]101Concerning this procedure, see: Case C-342/89 Germany v. Commission [1991] ECR I-5031 at I-5056, considerations 3 and 4, in pp. I-5051; Case C-346/89 Italy v. Commission [1991] ECR I-5057 at I-5072, considerations 3 and 4, in p. I-5067.
[ ]102Case 347/85 United Kingdom v. Commission [1988] ECR 1749-1798, at para. 14, in p. 1785.
[ ]103Case 347/85 cit., at para. 16, in p. 1786.
[ ]104cf. Case C-48/91 Netherlands v. Commission [1993] ECR I-5611 at I-5657, para. 17, p. 5648.
[ ]105According to Advocate General Darmon "[W]ithout doubt the outcome would be different in an action against a Member State for failure to fulfil its obligations under the Treaty, but the burden of proof in this case is on the applicant State" (See Case C-197/90, Italy v. Commission [1992] ECR I-1 at I-33, in p.I-16).
[ ]106See Article 8(2) of Commission Regulation No. 1663/95 cit.
[ ]107This section will focus on the procedure applicable to manufactured products, as the powers of the Commission are more important than those applicable to foodstuffs. For the supervision and enforcement of foodstuffs legislation, see: CAPELLI, Fausto "Le contrôle des produits alimentaires sur le marché unique européen et la responsabilité des contrôleurs" (1996) 395 Revue du Marché commun et de l'Union européenne 90-103.
[ ]108O.J. 1992, No. L228/24.
[ ]109For a more detailed account of this part of the procedure, see Article 11 of the Directive. This procedure is variant (b) of Procedure III, as described in Article 2 of Council Decision 87/373/EEC (O.J. 1987 No. L197/33).
[ ]110Case C-359/92 Germany v. Council [1994] ECR I-3681 at I-3716, para. 42, in p. I-3713.
[ ]111See Case C-359/92 cit., at paras. 46-50, in pp. I-3714, 3715.