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The most general and common procedure created by the Treaty to fight against Member States' failures to comply with their obligations is laid down in Article 169. It has a general purpose concerning its potential area of application and represents the common denominator. In another working-paper, I have analyzed the other administrative procedures through which the power of ensuring the application of EC law is exercised.
The first procedural step stated by the first paragraph of Article 169, where the Commission has to give the Member State the opportunity to submit its observations, is called, in the Commission's jargon, "formal notice". This stage is usually preceded by a letter pre-169 where the Commission simply attempts to collect information in order to decide if the breach exists. The administrative phase of this procedure finishes with the delivery of a "reasoned opinion", whose lack of compliance may result in an action being brought before the Court of Justice (hereinafter, ECJ).
There are at least two good reasons that justify undertaking a revision of Article 169. Firstly, we find a lack of clear rules. Thus, in spite of the procedure being of more general application and representing the basic tool used by the Commission to bring into line a Member State that is acting illegally, the two paragraphs of Article 169 are the only pieces of legislation that regulate this procedure. In fact, Article 169 does not expressly ask for any further legal development. This lack of a specific legal basis has been pointed out as a justification for the lack of legal development of this Article. However, Article 235 offers enough legal basis for doing so in case it was considered necessary to adopt further rules. At present, there are only some internal rules, whose legal significance is still doubtful, for coordinating the treatment of infringements within the Commission itself. Apart from these rules, only the case-law of the ECJ has solved some of the problems of the daily functioning of this procedure. There are, however, some points still under discussion which the ECJ has not had occasion to solve or has not solved once and for all.
Secondly, although there is a broad bibliography on Article 169 procedure, some of it is not up-to-date, and the rest only deals with some very partial aspects. Therefore, a study that will analyze all the obscure points of this procedure in a comprehensive manner is much needed. Furthermore, since the main actors of this procedure are two administrations, we cannot underestimate the importance of some analysis concerning their internal organization and their interaction in this regard, something that legal doctrine tends to ignore.
This article attempts to fill that gap and to better understand the Commission's and Member States' role in Article 169 procedure. Having that goal in mind, this analysis will focus, firstly (Section 2), on some unclear procedural aspects that affect the concrete powers and obligations of each part, such as: deadlines to act (sub-section 2.1.), discretion, the Commission's power to state the specific measures that must be adopted (sub-section 2.2.), the scope of Member States' obligation to comply (sub-section 2.3.), the right to the defence of Member States (Section 2.4.), the burden of proving the breach (sub-section 2.5.), and some possible legal and non-legal limits to the use of this procedure (sub-section 2.6). Secondly, Section 3 will be devoted to the problem of administrative coordination, both from an internal (although part of the Commission's internal procedures are analyzed in dealing with deadlines, cf. sub-section 2.1.) and from a bilateral point of view (between the Commission and Member States) underlining its present positive and negative points. This analysis is based on questionnaires and interviews with both national and Commission officials as it is explained, later, in more detail. Nevertheless, some of that information has been used in other sections as well.
Finally, I want to point out that the approach followed in this article is not a mere descriptive one, but is intended to generate proposals and suggestions for a possible improvement of the present model. The reader will judge their value and sense, at the end of this paper.
[ ]1Hereinafter it will be referred to as "Article 169 procedure".
[ ]2Contrary to what is usually stated, the Article 169 procedure is also useful to fight against breaches committed by legal and natural persons, but in an indirect way: the asessment to what extent the enforcement autorities of the Member State concerned have been either able or willing to pursue and correct that breach. We will analyze this aspect in more detail, in the Section on limits.
[ ]3See my working paper published in this series under the title "Commission Tools for the Supervision and Enforcement of EC law other than Article 169 EC Treaty: An attempt at Systematization".
[ ]4Article 169 EC Treaty says:
"If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
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".
See also Articles 88 ECSC Treaty and Article 141 Euratom Treaty.
[ ]5Opinion expressed by some of the Commission officials interviewed for the accomplishment of this study. However, the Commission published a standard complaint in the O.J. series C (1989 No. C26/6) where it accepts some procedural obligation towards complainants for failures of both Member States and undertakings to comply with EC law. For issuing this standard complaint, which can be considered a piece of soft law, the Commission did not need any legal basis.
[ ]6For example, the recent Council Regulation (EC/EURATOM) No. 2988/95 on protection of the Community's financial interests, which develops Article 209a, takes as legal basis Article 235 (O.J. 1995 L312/1). In fact, a literal interpretation of Article 235 shows that this Article is designed to enlarge the tools and powers of the Community more than the areas of competence.
[ ]7See infra Section on deadlines.
[ ]8For general information see AUDRETSCH, H. Supervision in European Community Law (Amsterdam: Elsevier Science Publishers B.V., 1986; CALOT ESCOBAR, Alfredo "El procedimiento por infracción del Derecho Comunitario" in Derecho Comunitario (Vitoria: Gobierno vasco, Consejo General del Poder Judicial, 1993) pp. 155-193; DASHWOOD, Alan & WHITE, Robin "Enforcement Actions under Articles 169 and 170 EEC" (1989) 14 ELRev. 388-413; LOUIS, Jean-Victor "Le rôle de la Commission dans la procédure en manquement selon la jurisprudence récente de la Cour de justice" in Du droit international au droit de l'intégration (Liber Amicorum Pierre Pescatore) (Baden-Baden: Nomos Verlagsgesellschaft, 1987) pp. 387-409.; MATTERA, Alfonso, Le Marché unique européen: Ses règles, son fonctionnement (Paris: Jupiter, Second edition, 1990) pp 681-719; VANDERSANDEN, G. and BARAV, A. Contentieux communautaire, (Brussels: Bruylant, 1977) pp. 97-126.
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