The role of the European Commission as guardian of compliance

An inquiry on the EU infringement procedure


Texte Universitaire, 2019
26 Pages, Note: 1,0

Extrait

Table of content

Table of content

Table index

1. Introduction

2. The EU infringement procedure in general

3. The role of the Commission for monitoring and law enforcement
I. Various enforcement strategies
II. The CJEU and its role as an interpretation assistant: Preliminary reference rulings as a judicial implementation alternative
III. Monitoring compliance in practice
IV. Self-interests as the origin for selective acting?

4. Non-compliance as a European deficiency?

5. The enforcement of fundamental values in the EU - current challenges and potential solutions

6. Conclusion and future prospects

Bibliography

Table index

Table 1 Classification of variables regarding their impact on compliance

1. Introduction

As part of this seminar paper, I will inquire the actions taken by European authorities to ensure that EU Member States follow their legal obligations under EU law. This paper will thereby primarily focus on the EU infringement procedure set out in Article 258 TFEU1 and particularly analyse the role of the European Commission as a “guardian” of compliance and assistant to the respective domestic legislators. In addition to this, I want to give an overview of alternative strategies and mechanisms to achieve compliance. As will be shown in the subsequent chapters,the Commission plays a significant role in the implementation process of EU law for it is an institution that only acts in the general interest of the Union, which inherently includes ensuring Member States` compliance.2 Consistent transposition of Community law is a crucial criterion for the hitchless functioning of the relationship between both the Union and its Member States and those among themselves. When analysing the role of the enforcement players, I will likewise provide insight into the political aspects of monitoring compliance.

Does the EU have a compliance problem? When looking at reports and statistics concerning initiated infringement procedures published by the Commission, this could be indeed assumed. After providing some general exposition of the treaty-based infringement procedure, I aim to examine various academic literature regarding this question. The inquiry will conclude with a statement concerning the (in)appropriateness of the EU infringement procedure. Due to the limited length of this seminar paper, a comprehensive examination of all aspects is unfortunately impossible. Nonetheless, I want to approach some of the issues in an interdisciplinary way.

2. The EU infringement procedure in general

The Union legal order enables both the Commission and the Member States to take action when they consider a breach of Union law by a state party. Typically, it is the European Commission to start infringement proceedings. Although possible according to Article 259 TFEU, cases in which Member States take legal actions against other ones are indeed very rare.3 The procedure initiated by the Commission is set out in Article 258 TFEU. The framework corresponds the conceptions of International Law ideas as neither the Commission nor the ECJ4 are invested with the power to invalidate or disapply national provisions. Equally, individuals do not have a standing in the procedure.5 The ECJ can merely assess the compatibility of national law with Community law.6 However, the procedure – and furthermore the legal order of the EU in general – does not at any rate follow this International Law logic since infringements by Member States cannot be justified by other breaches committed by third parties.7

The drafters of the Treaty intended a dialogue between the Commission as applicant and the alleged violator. The Treaty sets out that after considering that “a Member State has failed to fulfil an obligation under the Treaties” it “shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations”.8 The basic rationale behind is that the Member State concerned gets a second chance to comply with its legal obligations and thus avoid condemning judgments or – if it intends to do so – to defend itself against the allegation made by the Commission.9 The preliminary stage of the lawsuit is a procedure of negotiation, clearly targeting an out-of-court conflict resolution.10 The extrajudicial phase is composed of a monitoring phase, followed by a negotiation procedure that can altogether be highly time-consuming.11 Albeit not expressly mentioned in the treaty provision, before the Commission can bring the matter to the ECJ, it additionally and before it can even issue the reasoned opinion after Article 258, the Commission has to submit a “letter of formal notice”.12 Yet, exceptions can be found, for example in Art. 108 (2) TFEU as regards the Unions` state aid provisions. The letter of formal notice thus involves the first procedural opportunity for the Member States to prepare its defence, as well as to submit its own observations. Yet, in most of the cases, a conflict resolution will not be found at this stage. As a consequence, the proceedings will then need to go to the “reasoned opinion stage”.13 Article 258 TFEU requires the Commission to determine a period of time to comply with the opinion as it states: “If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”. The period laid down by the Commission as author of “letter of formal notice” or “reasoned opinion” must be reasonable to either reply or comply. However, the reasonableness will be determined on a case-by-case basis and thereby allows for arbitrary decisions.14 Regarding the “formal letter of notice” Member States usually have a time frame between one or two months.15

How far does the scope of litigation actually reach? The EU infringement procedure basically allows to bring an action against any type of alleged infringements of European law as long as they can be linked to a “state”.16 Yet, limitations can be found in Art. 275, 276 TFEU which set general boundaries to the ECJ jurisdiction – particularly “with respect to the provisions relating to the common foreign and security policy”.

The infringement procedure aims to detect and declare objective breach of law that does not necessarily require culpability. The Member State concerned is thereby liable for infringements committed by any of its administrative units – be it a parliamentary body, a government or any other state authority.17 Typically, the matter of the proceedings is a specific infringement or incident. Nevertheless, the Commission can also pool various infringements related to different facts and thereby “bagging several flies in one swat”.18 In case of such class actions, the letter of formal notice must yet deal with each individual complaint.19 As judicial and second part of the ordinary infringement procedure, the Commission can – if it considers the outcome of the completed administrative phase20 insufficient – forward the matter to the ECJ to seek remedial action.21 It is then the court to bindingly judge. Article 258 (2) TFEU clarifies the discretionary nature of the proceedings as it only gives the Commission the opportunity to initiate the next step. The Commission can despite its role as prosecutor in the procedure not be forced to commence the judicial phase.22

What follows if it decides to do so? Article 260 (1) TFEU sets out that “if the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court”. As already noticed, it is the duty of the Member States themselves to comply with the judgement for neither the EU as a community of law nor the ECJ as its quasi constitutional court have at their command to actually enforce the judgement. The Treaty framework nevertheless enables the EU authorities to punish the rule-breaking states by means of financial sanctions as it states: “If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.” 23

Importantly, for the final result of a financial sanction, the Commission must in fact initiate a further case at the ECJ under Article 260 TFEU as subsequent procedure for the enforcement of judgments after Article 258 TFEU.24 The Commission is then required to autonomously specify the amount of the penalty lump sum and thereby – once more – enjoys discretionary power. Yet, it has to justify the amount in regard to the respective circumstances of the case.25 However, it needs to be added that there exist exceptions, particularly in the event of failure of correct implementation of directives, whereby the Commission can already demand financial penalties as part of its first application under Article 258 TFEU.26 Furthermore, “general and persistent infringements” can be financially sanctioned as part of a simplified procedure.27

After all, the elucidated procedure is but one of many ways for the Commission to practically enforce Community law. The following chapter aims to introduce alternative strategies for legal enforcement. Moreover, the role of the Commission as the political “gatekeeper” will be discussed.

3. The role of the Commission for monitoring and law enforcement

In the previous chapter, an explanation of the infringement procedure provided by the TFEU was given. However, before the Commission will set an infringement procedure in motion, it has to monitor the actual degree of compliance of the concerned Member States. In this context, the Commission is often described as a “Gatekeeper” involving the enforcing players – that is in fact the ECJ– when it aims at challenging the implementation results of domestic actors.28 As will be argued, monitoring and enforcing compliance is not only a legal task, it is also to a great extent a matter of political interests.

I. Various enforcement strategies

Before going more into detail, I will put first an explanation of the various existing enforcement strategies used by the Commission as well as possible causes for non- compliance. As above-mentioned, the process of monitoring and enforcement is a political process of interchange. Common literature mostly distinguishes between “enforcement” and “management” as contrasting main strategies to safeguard compliance. One can nonetheless further – depending on the source of non-compliant behaviour – differentiate four types of combat mechanisms: sanctioning as based on negative incentives, capacity building as based on positive incentives, persuasion as based on learning and legal-internalization as a form of litigation. From a sociological point of view, their application depends on the intention of the non-complying states – this is where a line between voluntary and involuntary non-compliance can be drawn – as well as the logic of influencing (non-)compliant behaviour. Different assumptions regarding the causes for non-compliance lead to different strategies to oppose it. While enforcement approaches see the reason why state actors violate international norms in the refusal as a result of voluntary decisions, management approaches ague that non-compliance is rather due to a lack of capacities such as material resources. Beyond these two conceptions, legal internalization approaches consider the roots in diverging interpretations of meaning and general applicability of the respective law. Following this approach, concretization and negotiation through litigation is necessary to achieve the goal. Finally, persuasion approaches aim at changing the actors` preferences through a process of social learning and persuasion to adapt new standards of appropriate behaviour. It shall lead to redefinition of identities and preferences so that compliance becomes equally the interest of the state concerned.

One must not underestimate the political costs for the Member States concerned when the initiated infringement procedure becomes public. States usually have great interest in being considered sincere and politically credible. Regardless of the ultimate outcome of the infringement procedure, being perceived as a possible rule-breaker undoubtedly impairs the political bargaining power and raises reputational costs of non-compliance. Accordingly, the “naming and shaming” phenomenon is an important leverage for the Commission when it comes to enforcement policy. Once again, one must in this regard consider that in many cases, accused Member States ultimately bow to the Commissions` legal opinion to avoid an imminent judgment. Numerous proceedings thus end without a judgment due to the penalising effect of the mere accusation.

II. The CJEU and its role as an interpretation assistant: Preliminary reference rulings as a judicial implementation alternative

As mentioned above, the judicial system of the EU is based on close cooperation between national courts and the CJEU. The general principle of sincere cooperation set out in Article 4 (3) TFEU highlights this by placing both the Union and the Member States under the obligation to assist each other in fulfilling duties which arise from the treaties.29 The preliminary reference procedure that can be found in Article 267 TFEU is of enormous practical relevance and therefore deserves its own brief passage in this paper. Preliminary references are requests for judicial assistance regarding the interpretation of community law made by national courts.30 Private parties, however, technically do not have the right to force a national court to refer to the CJEU.31 Nevertheless, the reference proceedings have become quite an effective tool for private parties to invoke EU law and thus obtain a CJEU interpretation ruling applicable to their national lawsuit. Private parties could therefore make use of convincing interpretation arguments or generally emphasise the EU law element of the case.32 The CJEU is undoubtedly not invested with the competence to declare national law invalid. It rather focuses on ensuring legal clarity and – most notably – uniformity. By answering the referred question of interpretation, the court provides an authoritative interpretation. In practice, the nature of those rulings is not only binding on the requesting court but erga omnes.33 As an indirect logical consequence, the respective national legislator might have to amend its national law to establish legal conformity, depending on the concrete answer of the court.34 It is therefore indeed appropriate and reasonable to describe this legal instrument as “indirect enforcement”.35

[...]


1 Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C 115/1.

2 Case C-431/92, Commission v Germany [1995] ECR I-2189, para 21.

3 See e.g. Case 141/78 France v United Kingdom [1979]; Case 388/95 Belgium v Spain [2000]; Case C-145/04 Spain v UK [2006]; Case C-364/10 Hungary v Slovakia [2012].

4 European Court of Justice.

5 Robert Schütze, European Constitutional Law (2nd edn, Cambridge University Press 2016), page 371.

6 Cases 15 and 16/76, France v Commission [1979] ECR 32; Art 260(1) TFEU.

7 Joined Cases 90-1/63, Commission v Luxembourg and Belgium [1964] ECR 631.

8 Art 258 (1) TFEU.

9 Case 295/85, Commission v Belgium [1988] ECR 305, para 13.

10 Maria Mendrinou, Non‐compliance and the European commission's role in integration [1996] JEPP 1.

11 Beate Ortlepp, Das Vertragsverletzungsverfahren als Instrument zur Sicherung der Legalität im Europäischen Gemeinschaftsrecht (1st edn, Nomos Verlagsgesellschaft Baden-Baden 1987), page 68.

12 Robert Schütze, European Constitutional Law (2nd edn, Cambridge University Press 2016), page 372.

13 Laurence W Gormley, Infringement Proceedings in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values - Ensuring Member States` Compliance (Oxford University Press 2017), page 68.

14 Case 293/85, Commission v Belgium [1988] ECR 305, para 14.

15 Tanja A. Börzel, Non-compliance in the European Union: pathology or statistical artefact? [2001] JEPP 803.

16 Case C-61/94, Commission v Germany [1996] ECR I-3989.

17 Beate Ortlepp, Das Vertragsverletzungsverfahren als Instrument zur Sicherung der Legalität im Europäischen Gemeinschaftsrecht (1st edn, Nomos Verlagsgesellschaft Baden-Baden 1987), page 67.

18 Laurence W Gormley, Infringement Proceedings in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values - Ensuring Member States` Compliance (Oxford University Press 2017), page 73.

19 See e.g. Case 309/84 Commission v Italy [1986], paras 14-16.

20 As mentioned above.

21 Art. 258 (2) TFEU.

22 Laurence W Gormley, Infringement Proceedings in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values - Ensuring Member States` Compliance (Oxford University Press 2017), page 65.

23 Art. 260 (2) TFEU.

24 See e.g. Case C-457/07 Commission v Portugal [2009], para 47; Case C-95/12 Commission v Germany [2013], para 23.

25 Art. 260 (2) TFEU.

26 Robert Schütze, European Constitutional Law (2nd edn, Cambridge University Press 2016), page 374; Pål Wennerås, Making effective use of Article 260 TFEU in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values - Ensuring Member States` Compliance (Oxford University Press 2017), page 79.

27 Case C-494/01, Commission v Ireland [2005] ECR I-3331.

28 Bernhard Steunenberg, Is big brother watching? Commission oversight of the national implementation of EU directives [2010] EUP 359.

29 Pål Wennerås, Making effective use of Article 260 TFEU in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values - Ensuring Member States` Compliance (Oxford University Press 2017), page 79.

30 Morten Broberg, Preliminary References as a Means for Enforcing EU law in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press 2017), page 107.

31 Courts against whose decisions an appeal cannot be lodged are even under an obligation to refer to the CJEU in case of interpretational doubts.

32 Morten Broberg, Preliminary References as a Means for Enforcing EU law in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press 2017), page 103.

33 Morten Broberg, Preliminary References as a Means for Enforcing EU law in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press 2017), page 107.

34 Morten Broberg, Preliminary References as a Means for Enforcing EU law in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values (Oxford University Press 2017), page 99.

35 Stine Andersen, The Enforcement of EU Law - The Role of the European Commission (Oxford University Press 2012), page 32.

Fin de l'extrait de 26 pages

Résumé des informations

Titre
The role of the European Commission as guardian of compliance
Sous-titre
An inquiry on the EU infringement procedure
Université
University of Vienna  (Institut für Unternehmensrecht)
Note
1,0
Auteur
Année
2019
Pages
26
N° de catalogue
V494406
ISBN (ebook)
9783668989320
ISBN (Livre)
9783668989337
Langue
Anglais
mots-clé
Vertragsverletzungsverfahren, Infringement procedure, fundamental values, EU-Sanktionen, Compliance, Europarecht, EU law
Citation du texte
Markus Preslmayr (Auteur), 2019, The role of the European Commission as guardian of compliance, Munich, GRIN Verlag, https://www.grin.com/document/494406

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