|
|
At first sight, it appears that the Commission performs the classic role of an administration, interested in ensuring law enforcement, whereas Member States appear, initially, as potential non-compliants with EC law. But, the position of the latter is not exactly the same as the normal administré, under national infringement procedures, since Member States are, at the same time, members of the Council, of hundreds of Committees, and are responsible for the EC law to be observed in their territory, by other public institutions, legal persons and individuals in general. In fact, the role of both Commission and Member States changes from one procedure to another, which produces a complex picture that this article has attempted to clarify and systematize.
A first conclusion is that the creation of new infringement procedures, mainly by secondary legislation, has not followed a general strategy, but has taken place on a sectorial basis. And this process has usually had the eventual reinforcement of the Commission's powers. A possible explanation is that a series of small regulatory changes may achieve results, which would have been successfully resisted by Member States if they had been introduced in a single ample reform. This also proves the Member States' reluctance to concede more powers to the Commission, except on a piece-meal basis and when it really seems necessary for specific purposes.
In Community law it seems as if new events had surprised both the Commission and the Community legislator in the sense that different policies and different realities demand different tools for supervision and enforcement. In fact, the legal scheme originally designed by the Treaty has been revealed as unable to meet the needs of the Commission to ensure that EC law is properly applied by the Member States. The present situation can be characterized as contradictory. On the one hand, the Treaty creates a system of supervision and enforcement based on a general procedure, i.e. Article 169, and some exceptions are clearly specified (i.e. Article 93(2), competition policy). On the other hand, we find several procedures created by secondary legislation and the case-law of the ECJ to meet particular needs. It appears that Article 169 procedure is not appropriate, as a legal instrument, to fight against all the failures to fulfill the obligations under EC law. The path taken implies the creation of additional means to enforce and supervise EC law.
A second conclusion is that the reinforcement of the Commission's powers, by secondary legislation, is usually counterbalanced by the introduction of Committees on which Member States are represented (transport policy, competition, clearance of accounts, etc). In spite of these Committees, usually of an advisory character, it can be inferred from their role, that although individual Member States acting separately have lost powers, a different conclusion may be applied to Member States acting together, within the Council, or on one of the numerous Committees. The power of Member States, however, depends on the rule of voting (majority or unanimity) and the concrete powers granted to the Committees. Also, a new trend can be observed towards a reinforcement of the guarantees of Member States, via Council legislation, in areas where Commission action had proved inefficient.[186]
Thirdly, wherever there is an absence of formal legislation, the Commission's soft law and ECJ case-law fill the gap, and, consequently, the Commission can adapt as many procedural rules as it needs as far as they are not brought before the ECJ.[187] In fact, in spite of some consultation with Member States, before adopting its rules, the Commission soft law may alter the equilibrium of powers, between the Commission and Member States, as stated in the Treaty. That approach is not a useful one to offer general solutions that might clarify procedural stipulations. Indeed, the Commission "legislative" action is usually the outcome of previous case-law, and, therefore, it cannot precede the problems, but reacts once a particular problem has been solved to a concrete case from the ECJ. The ECJ itself can only offer solutions limited to the particular problems brought before it, without being able to adopt general solutions. One example is the different solution given to the burden of proving the breach in different cases.
Fourthly, it seems clear that the constant evolvement of EC policies demands flexible legal instruments to fight against changing legislation breaches, and the ECJ has also clearly legitimized the creation of new procedures via secondary legislation. However, the policy of developing new procedures, case by case, cannot be considered appropriate from a legislative point of view. In fact, the different quality of the addressee of the Commission supervisory action (Member State, legal person) does not always justify a different treatment. Furthermore, the new means of enforcement should not be created taking as point of reference a concrete area, but the characteristics of a given situation, which are likely to appear as well in other areas.
In sum, the infringement procedures in EC law need to be reformulated in order to assure coherence. Diversity should not be confused with incoherence and dispersion. In fact, at present there is enough case-law, on procedural requirements and stipulations, and legal provisions, so as to require a process of realignment and rationalization. The Commission should, firstly, be able to select those sectors of legislation that can have a general application and a certain stability, and then, incorporate them into the general legal framework (i.e. a European Administrative Enforcement Act?). Secondly, the Commission should identify those sectors, which are more likely to need permanent amendment and adaptation, and could as well be subject to sectorial legislation, or even to more informal forms of regulation. If the statement, that the European Community is a Community based on law is still valid,[188] then the principle of legal certainty has to be reconciled with the need of providing efficient tools of enforcement to the Commission.
Finally, this article has also studied some attempts to improve cooperation between the Commission and Member States and between the Member States themselves through more informal means (i.e. the partnership and networks). However, it appears that the Commission wants to control these new developments by assuring its participation, although it can also assure a more effective functioning of those means. Nevertheless, the lack of trust, complexity, and sometimes the conflicting objectives between the parties intervening in the process (i.e. the Commission, individual Member States, the Council) create some difficulty in making the different forms of cooperation work. There is obviously no ideal solution to the problems of coordination between administrations for supervising and enforcing EC law. On the contrary, different solutions have to be made compatible. Therefore, it appears that both the Commission and national administrations must continue their struggle with complexity if they want the Community system to survive.
[ ]186For example, in the clearance of accounts of agricultural policy.
[ ]187Although, it has to be recognized, that many of those rules are precisely the consequence of previous case-law.
[ ]188See, for example, Case 294/83 Les Verts v. European Parliament [1986] ECR 1339-1373, at para. 23, p. 1365.