Jean Monnet Center at NYU School of Law


Commission Tools For The Supervision and Enforcement Of EC Law Other Than Article 169 EC Treaty

An Attempt at Systematization

Alberto J. Gil Ibáñez [1]


This article attempts to systematize the main set of administrative EC law procedures, which have been created to prosecute infringements committed by Member States, as an exception to the normal application of Article 169. The reasons and purposes implemented to justify the creation of those procedures, and the interaction between them, making Article 169 its main point of reference, are examined. Besides, such a systematization is based on the following distinction: special procedures created by the EC Treaty, and infringements procedures, created by secondary legislation, without a clear legal Treaty basis (in other words, infringement procedures created by secondary legislation, as a result of the particular bargaining, between the Commission and the Council, with the Treaty giving no indication, that these procedures were needed). Some of the latter have been developed, within the framework of Article 169 EC Treaty (in fact they can be considered as special exceptions to the application of Article 169 procedure, although they are not presented, at least formally, as such), while others reach far beyond the conditions established under that Article, since they constitute completely separate procedures. This paper also attempts to explain why Member States have accepted the development of new procedures, which grant reinforced the Commission's powers. The author argues that the most consistent arguments are two-fold: the active participation of Member States, through Committees, and a deliberate strategy, followed by the Commission, to convince Member States on a sectorial basis, and case by case. Anyhow, it seems clear that there is room for improving the present situation. In fact, time has come to ask for a process of realignment and rationalization of infringement procedures.

[ ] 1This article is part of the PhD thesis defended in May 1997 under the title "A Comparative Study of the Roles of the Commission and National Administrations in the Supervision and Enforcement of EC Law" at the European University Institute of Florence. The author is currently working at the Spanish National Institute for Public Administration in Madrid.




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