|
|
Previous |Next |Title |Contents
It will be remembered that in the observations presented in van Gend en Loos , Member States argued that failure to comply with Community obligations could only be ascertained in the context of the infringements proceedings provided for under the Treaty. Further, as the Advocate General pointed out, under Article 177 the Court jurisdiction was limited to the interpretation of the Treaty and did not extend to its application. The Court disagreed:
"The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Article 169 and 170 to the diligence of the Commission and of the Member States [23]",
The fact that the Treaty provided for means of redress did not preclude,
or exclude, the possibility that individuals too had a role to play. Thus two
channels to secure compliance were created.
The public
[24] (Article 169) and private (Article 177)
systems of enforcement are also commonly referred as centralised and
decentralised systems of enforcement. I propose to revisit this 'dual
vigilance' from two perspectives: those of effectiveness and complementarity. I
propose to do so by looking at the respective merits and shortcomings of both
systems 35 years on from van Gend en Loos . Despite lack of empirical
research on the issue, we have learnt a few things about their respective
weaknesses and advantages. Generally, what we read about the many deficiencies
of the Article 169 procedure might lead us naïvely to believe that perhaps
we do not need dual vigilance any more. However, some of what we learned does
not really stand up to scrutiny and hence might be of little use. Other
findings though could be used to perhaps try and work out some formulae or
strategies to ensure that Articles 169 and 177 work as complementary
mechanisms.
What exactly is the meaning of dual vigilance
[25]? Do individuals and the Commission do the
same things, or do they do different things?
The questions need to be
asked, not to suggest that a parallel may be drawn between Article 169 and 177
procedures, given that, as is well-known, "the two proceedings have different
objects, aims and effects" [26], but because
it might naïvely be thought that through the coexistence of both systems,
one could cast the net wider, and correct more situations where the Member
States are failing to comply with their Community obligations. Indeed, while
both actions are not mutually exclusive [27],
one might assume that, to be meaningful and effective, dual vigilance would
mean that the surveillance mission would differ, in the sense that a division
of labour would exist, and that there would be some degree of specialisation.
However it is one thing to hope for some specialisation and even
complementarity, and another for such complementarity to exist. Could there be
such complementarity and to what extent could such complementarity be achieved?
Is there any evidence of decentralised enforcement coming into play as a means
to secure compliance or point to cases of non-compliance in instances where the
centralised system might fail or vice versa? Is it the case that we have
complementary mechanisms?
Does private enforcement allow detection of problems or situations of
non-compliance which the Commission could or would never have been able to
detect?
A naïve remark: for the Commission to take action, it
has to be aware that action needs to be taken. The Commission will only take
action if it is aware that some deficiency exists. Given that not every case of
non-compliance is a blatant breach of Community obligations, that in many areas
the Commission does not possess any powers of inspection, and that it is
under-staffed and under-resourced, how does the Commission operate? It acts
principally upon complaints from individuals [28]. This dependency on complaints is often criticised
[29]. However, one could adopt a naïve
perspective and ask: why are individuals bringing complaints to the Commission
rather than to their national courts? Aren't they aware that they can bring
complaints before their national courts? Dependence on complaints therefore is
not so much a weakness of Article 169 as an indicator that, in a number of
instances, redress in the national courts is problematic. Individuals may be
unable to get access to the judicial process, or it may be the case that no
remedy is available from the national court. Access to judicial process is
threatened, either through a finding of lack of title and interest
[30], or because a limitation period has
expired, or the form of process is held incompetent, or a plea of no
jurisdiction is sustained, or the decision sought to be challenged does not
fall within the category of reviewable acts. In short, for a variety of
reasons, vigilance by individuals has its limits and even on occasion just
fails. Complaints go to the Commission because individuals are unable to secure
compliance with Community law at national level [31]. Happily, public enforcement is there to relay private
enforcement. Article 169 allows treatment of non-compliance situations which
cannot be effectively dealt with by the decentralised system
[32].
On the other hand, reflecting
on some unsuccessful Article 169 actions [33],
the Commission has pointed out that some infringements would be more
effectively dealt with at national level, as they involve points of facts the
existence and definition of which were difficult for the Commission to
establish, but might be more easily established at national level. However, it
also conceded that, at present, such cases are often denied access to national
courts, the complainant being unable to prove an interest. Accordingly, the
Commission confirmed the need for national procedures in relation to public
complaints. One may be drawn to the naïve conclusion that situations exist
where even dual vigilance does not suffice to secure compliance
[34].
Another serious weakness of the
Article 169 procedure stems from the various problems associated with the
Commission's discretion to bring proceedings. That such decisions to commence
or not to commence proceedings will often be influenced by political
considerations has been well documented [35],
and it is not disputed that limits should be placed on such discretion
[36] to avoid the procedure turning into an
arbitrary exercise of power. Yet, the fact that the Commission acts with full
discretion can also attract the following naïve comment. The Commission's
discretion could be used to further a strategy: the Commission might consider,
wherever possible, concentrating on these areas where compliance with Community
law may not be secured through private enforcement. It is suggested that the
Commission definition of what comes under the 'Community interest' might take
account of the lack of opportunities for redress at national level.
Is it the case that, through decentralised enforcement, issues come before the European Court which would or could have never come before it via the Commission? It has been argued that the systematic expansion of the private enforcement function avoided many of the problems which would have arisen in legitimating the expansion of the Community legal order if public enforcement had been heavily relied upon. Public enforcement of Community law would have stressed the political dimension to the debate over the interpretation and scope of the new order, so directly exposing conflicts of perspective and interest between different institutional actors. Private enforcement, on the other hand, reduced the expansion of the new legal order to a series of legalistic disputes turning upon private rights and interests and backed by the venerable authority of the national courts [37]. Certainly, such cases as Cassis de Dijon [38], and Reyners [39] tend to confirm this view. Cassis de Dijon , typically, is presented as a dispute concerning private rights and interests to trade; it is rarely described [40] as raising fundamental constitutional issues about which legal basis (Articles30 or 100 [41]) should have been used to address these fundamental regulatory issues . It can further be said, that via private enforcement, the Court has been given an opportunity to influence the course of the integration process in a way which perhaps would not have been possible with public enforcement [42] alone.
The effectiveness or lack of effectiveness of the Commission's
supervisory function, the ability of the Commission to monitor the
implementation of Community law depends on how much there is to monitor.
Clearly, as the Community engages in more activities, the body of Community law
expands, and so the more there is to monitor. Given that the Commission is
under-staffed and under-resourced , the more the need therefore to rely on
decentralised enforcement.
Litigation is a minor part, the 'last
resort' in the Commission's role under Article 169. As is well known, Article
169 is a process of negotiation and settlement of differences, and a system of
cooperative contacts [43], and only a fraction
of infringement procedures results in a Court judgment. This political dialogue
between the Commission and the Member States, and the political management of
the control of the application of Community law, may in effect lead to a
renegotiation of the nature and extent of the Community obligations between the
Commission and the Member States. This state of affairs leaves much to be
desired in terms of accountability and transparency, and to this extent private
enforcement appears more desirable, since a court of law is involved. That a
court's involvement in the arbitration between competing interests suffice to
redeem the democratic deficit may seem a naïve view. And of course courts
may not be the ideal forum [44]. It may sound
equally naïve to suggest that policy decisions are better taken in the
judicial arena, rather than by the legislator. This is not what is suggested,
given that in the administrative phase the settlement takes place outside the
decision-making process framework agreed under the Treaty
[45]. What is suggested is merely that courts
might be better placed than the Commission to rule on the reasonableness or
otherwise of Member States' action or lack thereof (the better of two evils).
Indeed, courts seem less vulnerable to the various types of pressure
[46] to which the Commission is subject.
The other value of dual vigilance, the other advantage of having a
decentralised enforcement system alongside the public enforcement mechanism, is
that private enforcement has a legitimacy of its own as it can be assimilated
to a "social ordering in which individuals are involved in their own capacity"
[47]. One may wonder how and to what extent
litigation can be seen as a way to achieve social engineering. There are few
studies about who goes before national courts in the Community, but by and
large, only a limited category of litigants has the resources and energy to
resort to litigation. Throughout the Community, impairments to litigation are
built into and around the judicial system which, in different ways, all have
the capacity to weed out all but the strong and hardy complainant. Certainly
the few studies relating to those cases before national courts which came to
the ECJ via Article 177 [48] tend to show that
so far it is mostly for wealthy or well-backed [49] players, that the potential of litigation at European
level is significant. This in turn carries the risk that the haphazard
development of Community law which takes place in the enforcement process is
rather one-sided [50]. And as has been shown
[51], litigation so far resembles more
organised law enforcement than public interest litigation. This is particularly
so given that under the Article 177 procedure, title and interest is dependent
entirely on the requirements defined under national law. These requirements,
for the most, favour personal, individual rights.
Economic actors have successfully instrumentalised EC law through the Article 177 procedure to foster the development of a Common, now Internal Market. In the pursuit of their own special interests, economic actors have contributed to the establishment of common rules governing the market. The four freedoms translated not only into rights to trade, but also into rights to open up markets. Landmark decisions by the European Court in this field have been taken in the course of proceedings which have been described as organised law enforcement [52]. These rulings are the results of a strategic use of EC law to eradicate national rules; not only those which affect trans-border trade, but also those which generally are perceived as unnecessarily curtailing commercial freedom [53]. However one observes some changes [54], as other actors [55] are discovering the potential for action offered by EC law.
Before concluding on the assessment of dual vigilance, the fact that
both systems have matured and undergone transformation must be acknowledged.
Taking stock of the changes in the two systems in the last 35 years, the
superiority of private enforcement might not be so blatant.
The main
weakness of direct effect is that national courts decide on the ways to give
effect to direct effect. The sanctions for breach of Community law are
dependent on national courts, which must follow national rules. These national
rules were not designed for the purpose of enforcing Community law and
have proved, on occasion, ill-suited to the task. In cases where national
procedural rules or substantive rules governing the remedy were challenged, the
ECJ, at the request of national courts, has influenced the working of national
judicial systems. This impact has been quite real, at all stages of the
judicial process, from access to the domestic courts to the final outcome of
the litigation [57]. However, in the
regrettable absence of harmonising Community provisions, the ECJ can only
ensure an adequate standard of judicial protection on a case by case basis.
Such an approach is evidently haphazard, dependent on the financial resources
and tenacity of the litigants, and the willingness of national courts to
co-operate.
A famous weakness of the centralised system was that
judgments declaring Member States in breach of their Community obligations were
all too often ignored. However, reform of and actual reliance upon the new
sanction mechanisms under the amended Article 171 are starting to show their
effects [58]. Private enforcement, on the
other hand, had previously equipped itself with a powerful instrument: the
possibility of claims for damages brought by individuals. But, this new
Community remedy remains as yet undeveloped and much of its consequences for
the different types of Community obligations are unclear. Given that one of the
conditions is that the provision was intended to confer rights on individuals,
it is dependent on the approach to the concept of individuals' rights
[59]. Furthermore, its significance in
practice [60], is dependent on national
courts: inter alia causation, questions regarding limitation periods,
mitigation of loss will be assessed in accordance with the domestic rules on
liability [61]. More importantly for the sake
of this argument, an action in damages against the State will in a number of
instances be a poor alternative to the direct and immediate protection of the
Community claim. For example where a directive imposes obligations on
individuals, in which case by definition, the State is not the proper
defendant, the plaintiff would effectively be required to bring two separate
sets of legal proceedings, either simultaneously or successively, one against
the private defendant and the other against the public authorities
[62].
[23] Case 26/62 van Gend en Loos
v Nederlandse Administratie der Belastingen op. cit; Emerald
Meats [1993] ECR I-209 para.40.
[24] The other specific enforcement procedures provided for
under the Treaty, such as Art.93(2) will not be discussed here.
[25] Member States too by virtue of Article
170, have an opportunity to redress breaches of Community law. However, they
will be left out as they did not have much recourse to it: Case 141/78
France v UK [1979] ECR 2923. Instead, and although unilateral adoption
of corrective of protective measures designed to obviate breaches of the Treaty
is not allowed, Member States occasionally feel like taking the law into their
own hands, e.g. decide to police Spanish slaughter houses Case C -5/94 R v
MAAF ex parte H. Lomas [1996] ECR I- 2553 .
[26] Case 28/67 Molkerei-Zentrale
Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968] ECR 143
[27] as the co-existence of Articles 169 and
177 actions before the Court has demonstrated : e.g.Case C-221/89,
R v Secretary of State for Transport ex parte Factortame
[1991]ECR I-3905, and Case C-246/89 Commission v U.K [1991] ECR
I-4585; but also Case C-288/89, Gouda [1991]ECR I-3905, and Case
C-288/89 Commission v Netherlands [1991] ECR I-000; R. v
Pharmaceutical Society [1987] 3 CMLR 951
[28] 13th Annual Report on the implementation
of Community law COM(96) 600.
[29]
since inter alia individuals do not necessarily bring to the attention
of the Commission those violations of Community law which have some 'Community
interest'.
[30] Typically, in the
field of environmental law where disputes focus on the threat to collective
goods, in those member states where locus standi concepts are too
restricted, the objective treaty violation procedure is often the only door
open, Winter: "Inspecting the Inspectors" (1996)33CMLRev, 689-717.
[31] COM (96) 600 op.cit.at 84
[32] witness also the new intervention
mechanisms to safeguard free trade, and see further at xxx..
[33] in the environmental law field, COM (98)
317, 15 th Annual report on the Application of Community law at 76.
[34] And indeed the Commission
itself acknowledges the need for initiatives in the field of enforcement
mechanisms, ibid
[35] Weiler: "The
Community system: the dual character of supranationalism" (!981) 1 YEL 267 at
299; Craig: "Once upon a time in the West: Direct Effect and the federalisation
of EEC law" (1992)12 OJLS 453 at 456; R. Williams "The European Commission and
the Enforcement of Environmental law, an invidious position" (1994) 14 YEL 351
at 359; A.C.Evans: " The enforcement procedure of Article 169 EEC: Commission's
discretion" (1979) 4 ELR 449.
[36]
the Ombudsman in its own initiative inquiry on the Newburry By-pass concluded
there was a general need to review the position of complainants in Article 169
proceedings, OJ 1997 C272/32, the CFI, is placing some limits: Case T- 105/95
WWF UK v Commission [1997] II- 313; also see P.Kunzlink: "The
enforcement of EU Environmental law: Article 169, the Ombudsman and the
Parliament" (1995) EELR 336; and also R. Mastroianni: "the enforcement
procedure under Article 169 of the EC treaty and the powers of the European
Commission: Quis Costodiet Custodes?" (1995)1 European public law 535
[37] Craig op.cit., Walker N.[1996] PL 266-290
at 276
[38] Case 120/78
Rewe-Zentrale v Bundesmonopolverwaltung für Branntwein [1979] ECR 649
[39] Case 2/74 Reyners v. Belgium
[1974] ECR 631
[40] for a
dissident view Joerges: "European Economic law-The Nation State and the
Maastricht Treaty in Dehousse (ed) op.cit. pp29-56
[41] as was argued in Cassis itself
[42] reference is made here to the debate
on positive and negative integration and to the role of the Court in promoting
negative integration, equivalence, mutual recognition and the new approach to
harmonisation. The role played by the ECJ in promoting negative integration is
outwith the remit of this paper. It is well documented in inter alia A.
Easson: "Legal Approaches to European Integration: the role of the ECJ and
Legislator in the completion of the SEM"; D. Berlin: "Interactions between the
law-Maker and the judiciary within the EC" LIEI 1992/2 pp17-48; McGee &
Weatherill: "The evolution of the single market - harmonisation or
liberalisation". (1990) 53 MLR 578-590
[43] F. Snyder "the effectiveness of European Community law
(1993) 56 MLR 19 at 30, A.Dashwood & R. White (1989) 14 ELR 338. Evans
op.cit.
[44] the shortcomings of
litigation as a means of social engineering are explored below
[45] although the Commission may act as an
initiator of legislation, it is not acting qua a legislative organ when
it discharges its monitoring function. For a discussion of direct effect as
fulfilling a legislative function see fn noxxx
[46] stemming from the inherent conflict
between the Commission's dual role as initiator of legislation and guardian of
the Treaty.
[47] Craig op.cit.,
Walker op.cit.
[48] C.Harlow
(1992)12 YEL 213-248; C. Harding Who goes to court in Europe? An analysis of
litigation against the European Community (1992) 17 ELR 105-125
[49] see the role of Maitre Vogel-Polski in
the Defrenne litigations, or that of the EOC in the two Marshall
sagas.
[50] see the discussion of
the standard of protection of 'diffuse interests' in the Community in
Weatherill: "Compulsory Notification of Draft Technical Regulations: The
Contribution of Directive 83/189 to the Management of the Internal Market"
(1996) 16 YEL 129 at 197-201
[51]
Micktliz: "The interest in Public Interest Litigation in Public Interests
Litigation in European Courts" Micklitz &Reich (eds) Nomos Verl. Baden
Baden 1996
[52] Micktliz ibid. at
29.
[53] e.g. The Sunday trading
saga see supra at xxx
[54] Case
C470/93 Vereingegen Unwesen in Handel und Gewerbe v Mars [1995] ECR I-
1923, and Reich: "Public Interest litigation before European jurisdictions" in
Mickliz & Reich (eds)op.cit. at 9
[55] Certainly in the U.K. the EOC is aware of these
potential and developed a clear and well-organised litigation strategy
L.Fletcher: "Enforcement of Community Sex Equality Law" in Hervey &
O'Keeffe (ed) Sex Equality law in the European Union (Wiley 1996) pp173-178.
[56] J. Mertens de Wilmar:
"l'efficacité des différentes techniques nationales de protection
juridique contre les violations du droit communautaire par les autorités
nationales et les particuliers" in 1981 Cahiers de Droit Européen (CDE)
17, 379,
[57] Lonbay & Biondi
(eds), Remedies for breach of EC Law (Chichester: Wiley, 1997 )
[58] COM (98) 317 at p.I.
[59] see below at p.xxx, also see J. Jans
European Environmental Law (Kluwer 1995) pp187-189
[60] So far C. Harlow's prediction of 'an
illusion of remedy' in "Francovich and the Problem of the Disobedient State"
(1996) 2 ELJ 199 at 222 seems accurate, and certainly was for Andrea
Francovich;
[61] Provided that these
conditions laid down by national law are not less favourable than those
relating similar domestic claims and must not be such as in practice to make it
impossible or excessively difficult to obtain reparation Case C-46/93 &
48/93, [1996] ECR I-1029 para.67
[62] Advocate General Jacobs at point 33 of his opinion in
C-316/93 in Vaneetveld v SA le Foyer [1994] ECR I-763; Tridimas
"Horizontal Effect of Directives: A Missed Opportunity?" (1994) 19 ELR 621 at
633-635
Previous |Next |Title |Contents