Jean Monnet Center at NYU School of Law

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2.1. Deadlines under Article 169: efficiency versus equity?

2.1.1. Some previous remarks

Administrations always act under time constraints. There are two kinds of deadlines: those imposed on the administration to act, and those imposed on a third party with whom an administration interrelates. One also has to distinguish between the delay that results from neglect, and that which is a necessary consequence of a degree of precision and formality necessary for the law, but not particularly common to everyday life.[9] When delay ceases to be proper delay and becomes unnecessary, action should be taken to reduce it. In this sense, legal deadlines can be considered as the legal response to the social demand of efficiency and capacity of coordination of administrations. In fact, the need for administrations to act within a legally fixed period compels them to improve their coordination and organization to respect that deadline. Furthermore, deadlines can serve as a guarantee for the individuals and third parties affected by administrative decisions.

A deadline cannot be either too long or too short and it has to take into account all the circumstances that may occur. This fact makes it difficult for the legislature to fix deadlines. An alternative solution could be to grant judges the power to fix reasonable deadlines case by case. However, this solution is inconvenient because the judicial decision would be made after the administrative decision. Furthermore, some abuses would occur because not every case reaches the judiciary. These difficulties are often cited by administrations to reinforce their power to fix deadlines. However, although there may be good reasons to grant an administration the power to decide freely whether to extend the period within which the administré must act, "cases may arise where the equities in favour of tolling the limitation periods are so great that deference to the agency's judgment is inappropriate".[10] In Article 169 procedure, we find deadlines fixed by the ECJ and by the Commission. The fact that the Commission can set up its own deadlines and can impose deadlines on Member States' action may have some consequences for a fair division of powers between them and may imply different constraints in terms of improving administrative coordination.

2.1.2. ECJ's case-law and Commission's internal rules.

Under Article 169 procedure two sets of deadlines exist: first, the deadlines imposed on Member States to respond to the Commission's action, and second, the deadlines applicable to the Commission itself. The latter includes the need for the Commission to decide within a certain period whether to initiate an Article 169 procedure and whether to pass from one procedural phase to another or, alternatively, to drop the procedure.

Since there is no formal rule, the case-law of the ECJ is analysed first. Thereafter, the internal rules of the Commission on the matter are considered. Criteria derived from the ECJ's case-law.

A. Deadlines applicable to Member States.

According to the ECJ, the Commission has the power to determine the exact period of time in which the Member State must answer the formal notices and reasoned opinions. The ECJ does not itself have the power to change the reply period, although it can declare such a period to be unreasonably short. It is also for the Commission to decide whether a Member State's request for a prolongation of the reply period is to be granted or not.[11]

Some scholars have gone so far as to say that the Commission enjoys full discretion here.[12] However, the ECJ has set up certain criteria that limit the freedom of the Commission on this area. The normal deadline for Member States to answer the formal notice or to take the actions prescribed by the reasoned opinion is two months. Although a shorter period may be justified, this is not without any limit. First, there must be some urgency and, second, the Member State must have, in any case, an adequate and realistic opportunity to respond; in other words, a "reasonable" time must be given to reply.[13] The ECJ has made these limits explicit; it has stated that the need for an urgent action cannot be considered to exist when the Commission has created such a situation by failing to take action earlier, in spite of having all the necessary information to do so.[14] However, if a Member State was aware of the Commission's point of view long before the pre-litigation procedure was initiated, this fact could justify a shorter deadline than usual.[15]

Sometimes, the Commission has argued that the time-limits to answer that are specified in the formal notice or reasoned opinion are not absolute. Accordingly, a certain period should not be considered too short by the ECJ if the Commission has accepted replies, given by the Member State concerned, after the expiry of the formal time-limits. The ECJ has rejected this argument on the grounds that a Member State cannot know in advance whether and to what extent the Commission will grant an extension of the time-limits normally specified.[16]

Furthermore, the ECJ has recognized that not all of the situations can be treated in the same way. For example, in the case of lack of transposition of a Community directive, the usual period of two months given by the Commission to answer a formal notice or a reasoned opinion can be considered, in fact, as an additional period, because the Member State concerned already had the usual two years to enact the necessary national rules.[17]

In fact, most of those limits can be considered to derive from the principle of proportionality as a general limit to the Commission's discretionary power.

B. Deadlines applicable to the Commission.

With regard to deadlines applicable to the Commission's actions, the ECJ has been more flexible than with Member States. In fact, the ECJ has stated that as a consequence of the Commission's discretion, it cannot be required to act under Article 169 within a specific period.[18] The Article 169 procedure involves a power on the part of the Commission to consider the most appropriate means and time-limits for the purposes of eliminating a contravention of the Treaty.[19]

Nevertheless, this discretion does not imply that the Commission has no limit to decide when to start an Article 169 procedure. Thus, the ECJ can assess whether the Commission exercises its discretion in a manner contrary to the Treaty.[20] However, the ECJ usually tends to justify the delay taken by the Commission to initiate an Article 169 procedure. For example, in Case 7/71, although the ECJ criticized the fact that the Commission commenced its action after a lengthy period of time, the ECJ eventually accepted the Commission's behaviour by stating that it would not have had the effect of regularizing a continuing contravention on the part of the French government.[21] Furthermore, in Case 324/82, the ECJ ruled that it was acceptable for the Commission to postpone the examination of the compatibility of the Belgian measures in question until the directive was in force in all Member States.[22] Commission internal rules on deadlines.

There are no formal rules concerning deadlines for either Member States or the Commission. In fact, the Commission is not subject to any kind of time limitation of the type familiar to national systems of administrative law. This may well have some negative effects on the "legal certainty" of private and public interests. In fact, the principle of legal certainty requires clear rules or, at least, clear criteria.

On the other hand, the ECJ can only decide cases brought before it; therefore, its case-law cannot cover all the possible situations. Furthermore, the ECJ can only decide after the possibly irregular administrative situation has occurred. Yet, clear rules are also required for reasons of internal organization and management. As a consequence, the Commission has elaborated some guidelines in the form of internal rules that remain for the exclusive internal use of the Commission and which lack any formal binding character.[23]

The following sub-sections will analyse the deadlines that the Commission, within the framework of its internal rules, has self-imposed, and deadlines it usually imposes on Member States.

A. Pre-169 procedure.

The normal deadline for a Member State to respond to a request for information from the Commission, as a consequence of a complaint, is two months. In case of absence of answer within that period, the Commission will usually send a reminding letter offering a supplementary period of one month to answer. Finally, in the case of lack of response to that second letter, a telex will be sent making reference to the obligations of Member States under Article 5.

As a general rule, every exception has to be duly reasoned, a complaint must be either dropped or become a formal procedure, at the latest, one year after such a complaint has been registered by the Secretariat-General. In principle, if, at that stage, the Commission has not collected enough precise information and factual elements, the complaint should be dropped. The same deadline applies to the cases initiated because of information obtained by the Commission's own means.

However, the period of one year has been usually interpreted flexibly. In this sense, the decision whether or not to pursue a formal procedure is "prepared" by the meeting of "Chefs de cabinet" and finally approved by the "College", i.e., the ensemble of Commissioners. As those meetings take place every six months, in many cases the deadline of one year will be exceeded. For example, if one complaint is registered in the month of April and the meetings take place in the months of June and December, the meeting of December will probably be too soon to adopt a decision, and the next meeting taking place in June of the next year will mean that the period of one year will have already been exceeded. In fact, recent analyses have revealed that several hundred dossiers have failed to meet that time criterion.[24]

This fact has moved the Commission to take appropriate measures in order to ensure the internal compliance with such a deadline of one year.[25]

B. Formal procedure.

B.1. Formal notice

After the Commission has decided to send a formal notice, there is still a procedure that has to be followed to actually prepare and send it. There are certain deadlines that the Commission has "self-imposed". Thus, the text of the formal notice is prepared by the responsible Directorate-General with the participation of the Legal Service. The final text is sent to the Secretariat-General that will present it for signature to the responsible member of the Commission, after having asked for the opinion of his Cabinet. The process of preparing the text must not take more than four weeks, and if the Commissioner has not signed after two weeks, he will have to explain his reasons within the "College" of Commissioners. Therefore, once the Commission has taken the decision of sending a formal notice, a period of one month and a half can easily elapse.

The fact that dealings between the responsible Directorate-General and its Commissioner have to pass through the Secretariat-General may cause some delay in the process. The reason may be that the Secretariat General plays a coordinating role and is better placed to overcome any possible resistance to sign from the Commissioner. However, it can also imply that the role of coordination played by the Commissioner over his Directorates-General is more limited than expected. Furthermore, this role of the Secretariat-General may suggest that there is a separation in the Commission between the political level (Commissioner and his Cabinet) and the technical level (Secretariat-General, Directorate-General and Legal Service), even after the decision of sending the letter has been taken by the Commission.

In sum, after the first year, during which the responsible Directorate-General attempts to collect all the relevant information in order to decide the existence of a suspected infringement, a long process has still to be pursued in order to initiate the formal procedure: (1) meeting of Heads of Cabinet, (2) decision by the Commission, (3) preparation of the actual text by the Directorate-General and Legal Service, (4) coordination of the Secretariat-General, (5) opinion of the Cabinet of the Commissioner responsible, (6) signature of the Commissioner, and finally, (7) the sending of the formal notice by the Secretariat-General to the Permanent Representation of the country concerned. Furthermore, this process can be prolonged if the meetings of the Heads of Cabinet or the Commission decide on the postponement of the procedure. We have also seen that the Commissioner can postpone his signature and give explanations to the "College".

However, such a procedure can be shorter. Thus, in case of urgency, the Commission can decide directly at its first meeting available under proposal of the Commissioner responsible. This implies that the time-limits for the elaboration of the formal letter are also reduced, i.e. usually a fortnight. Moreover, decisions can be taken by written procedure; this usually happens during the period of holidays.

Concerning deadlines imposed on Member States, it can be noted that the period of time that the Commission gives them for answering is usually two months, except in justified cases where the Commission decides otherwise. However, where the formal notice is sent during "long holidays", i.e. summer, an automatic extension of one month is usually accepted. The normal deadline can be extended once, upon request by the Member State concerned, and for the maximum time already granted to answer the formal notice. In case of urgency, however, the usual deadline imposed on Member States to answer is a fortnight.

B.2. Reasoned opinion.

The procedure that the Commission follows to produce a "reasoned opinion" is very similar to that referred to for the formal notice. There are, however, two important differences. First, once the Commission has already authorized preparation of the text of the reasoned opinion, the period for doing so and sending it to the Permanent Representation of the country concerned may be, as a general rule, three months. Having a longer period of time to prepare the reasoned opinion than for the formal notice can be justified by the greater relevance of the reasoned opinion. However, taking into account the fact that the decision has already been adopted by the "College" of Commissioners and that the reasoned opinion cannot introduce new elements into the process,[26] a longer period for its preparation might not be so easily justified.

However, the period of three months may be the consequence of the second difference with the procedure designed to produce a formal notice: that is, the major intervention and leading role of the Legal Service in cooperation with the responsible Directorate-General. In fact, the Legal Service normally writes the final draft of the reasoned opinion.

Concerning the deadlines imposed on Member States to answer, the same general rule of two months applies here. This deadline, however, can be extended, upon request from the Member State concerned, to a maximum of three months if the Member State needs to go through a legislative process to adopt the measures required to comply with the reasoned opinion. However, one can argue that one month more does not make any difference when it is a question of going through a legislative process.

B.3. Reference to the ECJ.

Different deadlines are established for the preparation and presentation of an action before the ECJ. The Legal Service prepares the written document in cooperation with the responsible Directorate-General, depending on the matter. The action has to be brought before the ECJ, at the latest, one month after the Commission has agreed upon making the reference to the ECJ. During that period the Cabinet of the Commissioner responsible has also to agree with the text before it is sent to the Court. In any case, between the decision of initiating the formal procedure and the reference to the ECJ, a maximum of eighteen months should not be surpassed.

There is no clear reason here why the Commission only needs one month to prepare the legal document, and, in order to prepare the reasoned opinion, it needs three months. It is presumed, however, that the preparation of the action before the Court is facilitated by the pre-existing reasoned opinion.

After a final decision of the ECJ against the Member State concerned, the Commission sends a letter to the said Member State, one month after the final decision of the ECJ, reminding that Member State of the obligation to take the necessary measures to put an end to the infringement, and asking it to report to the Commission within the next three months about the measures taken or those envisaged to take. The Commission will then take the decision of initiating an Article 171 procedure or dropping the affair. It should do so within a maximum period of nine months after the ECJ took the decision. However, it can be considered somewhat surprising that the Commission should be more flexible with the compliance of Member States with the decisions of the ECJ than with the Commission's reasoned opinion.

To sum up, this section has shown the criteria generally followed by the Commission at present under Article 169 procedure concerning deadlines. We have pointed out some contradictions that could be eliminated. In 1992, the Commission recognized in an internal document that more than 300 "dossiers" did not respect those deadlines. More recently, the number has increased to 565. In fact, the decision-making process within the Commission can be improved and simplified. Although the Commission is moving in that direction, it has to be noted that self-imposed deadlines are difficult to enforce.

2.1.3. Special cases within the framework of Article 169 procedure: lack of transposition of directives, technical rules (Directive 83/189) and public procurement.

In the case of lack of transposition, the infringement procedure is initiated almost automatically, i.e, one month after the period for transposition has expired. The reason is the clarity of the breach once the period for transposing a directive has been surpassed without any measure of transposition having been reported. Furthermore, both the President and the Commission member responsible have been granted authorization to initiate the formal procedure without a decision of the "College" being necessary. However, the latter is still required for the reasoned opinion.

The deadlines within which Member States have to answer are, however, the same as in the normal procedure, i.e., two months.

The members of the Commission responsible for technical rules and public procurement have also the habilitation to decide the initiation of the formal procedure by sending either the formal notice, in public procurement, or the detailed opinion in the case of the procedure created by Directive 83/189.

However, in the public procurement sector the Community has followed a different approach by fixing clear deadlines under a formal rule. Thus, the Compliance Directive has created a new, special procedure for Commission intervention, which requires a Member State to respond to notification by the Commission of an alleged breach within a fixed time-limit of 21 days.[27] In fact, the main difference with the normal Article 169 procedure is simply that a clear time for answering is fixed. Indeed, this notification is treated as a normal formal notice which may be followed by a reasoned opinion. It can be noted that the difference is just nine days concerning those award procedures that are not covered by the directive. In fact, the Commission, in these cases, usually gives Member States one month to respond. Furthermore, the ECJ has accepted, within the "normal" Article 169 procedure, even shorter periods, when they are needed for urgent action to secure interim relief.

Therefore, by regulating in only one sector, the Community has created more confusion than clarity. In fact, it has been suggested considering the 21 days simply as a maximum period in order to reconcile the Compliance Directive with the case-law of the ECJ.[28] This also shows that this sectorial approach has been motivated more by the political bargaining process, given the importance granted to the public procurement area, than by reasons of legal efficiency.

2.1.4. Weaknesses of the present system.

Deadlines are required for administrative action whether administrations want them or not. In fact, if they are not set by law, reasons of public management make them necessary. However, there are several problems with the present system of deadlines in EC law. First, there is no clear rule about who has to set the deadlines and how these deadlines should be fixed. In fact, the analysis of the main infringement procedures shows that there is a lack of coherence of the system concerning deadlines. Thus, at present, there are procedures where the Council and sometimes the Commission have accepted the need of formal rules on deadlines (i.e. competition, anti-dumping, clearance of accounts and public procurement), other procedures where the Commission has only ruled on deadlines via soft law and taking advantage of some ECJ case-law (i.e. State aid), and, the Article 169 procedure where the only existing rules on deadlines are simply internal guidelines of the Commission.

These differences among the different procedures cannot always be justified by the specificity of the policy they serve. For example, it has been noted that competition policy includes more legal guarantees because legal persons are mainly involved. However, we also find formal guarantees concerning deadlines in other areas, such as clearance of accounts and public procurement, where States are also main actors.

Furthermore, it is unclear whether the Commission and national administrations should have discretion to fix their own time constraints, or whether they should be fixed by external actors, i.e., case-law, legislation, or another administration. If an administration can regulate freely on this matter, i.e., without clear guidelines given either by the legislator or by the Court, it will logically choose the option that responds better to its own needs and interests. However, legal principles are also useful and have to be respected.

These tensions are frequently present in the relation between the Commission and national administrations, within the framework of Article 169. In fact, the Commission is aware of Member States' attempts to delay, as much as possible, a decision against their interests, and, as a consequence, it imposes deadlines in order to reduce that risk as much as possible. However, if the Commission is left a free hand, it is logical to think that it will attempt to adapt as many procedural rules as possible to its own needs. Independently of how much time it takes the Commission to act, it should be ensured that it has to act respecting the same legal principles that Member States are supposed to respect. A necessary balance between flexibility and legal principles has to be assured at both levels of administration. In fact, although fixed time-limits can be regarded by the Commission more as restrictions to their action, for the Council, national administrations, and companies involved, they may be considered as a guarantee. In this sense, it has been suggested, as a compromise between legal principles and administrative eficiency, to fix by law a "normal" deadline, leaving, however, to the administration the possibility of prolonging such a deadline by a reasoned decision.[29]

Although reasons of internal management and the objective of taking into account the opinion of all the services involved may justify the existence of self-imposed and flexible deadlines for the Commission, there is no clear reason why Member States, which are affected by similar constraints, cannot benefit from the same privilege. In fact, sometimes the deadlines imposed on Member States do not reflect the internal constraints of those States, i.e., decentralized political structure. Moreover, it seems contradictory that the Commission can impose short deadlines on Member States, while it can answer when it considers most convenient.

Finally, if the need of flexible management can justify flexible and non-binding internal deadlines, the same justification does not work concerning the maximum period to act. In fact, clear maximum deadlines can force administrations to improve their efficiency and, at the same time, they are required by the principle of legal certainty.[30] Therefore, the discretion of the Commission should not always be used as a justification for a lack of clear rules, since it is one thing to be free to take a concrete decision and another to be free not to take any decision at all.

2.1.5. Possible improvements of the system.

The following sub-sections will analyse possible improvements in the system of deadlines, taking the Article 169 procedure as a basis of reference from which the other procedures may differ. This analysis will consider the possibility of designing a model that generalizes some of the techniques already used by EC law in other areas. Except for objective reasons, it does not appear either logical or useful that rules that create guarantees, or criteria that improve efficacy in one procedure should not be extended to all infringement procedures. Maximum period of time for the Commission's action.

As we have seen, the existence of clear maximum deadlines obliges administrations to adapt their activity to respect those time-limits. The consequence may be the need for improving their efficiency. If this applies to national administrations, there are no clear reasons that could justify a different solution for the Commission. In fact, given that the Commission has some problems in acting rapidly due to its own internal procedural constraints, a clear external deadline to act can force it to improve its internal coordination by, for example, simplifying its internal procedures. At present, however, the lack of criteria places the Commission in an apparently privileged situation compared to that of Member States. In fact, Member States have usually to coordinate not only the position of several Ministries and interest groups, but also the position of sub-state entities such as regions and municipalities.

A period of inactivity of the Commission, fixed beforehand, could bring as a consequence that the infringement procedure be considered automatically dropped. In fact, in anti-dumping policy, the Council has already stated that a procedure of investigation should normally be concluded within one year and, in any case, within fifteen months of its initiation either by termination or by definitive action.[31] On the other hand, the ECJ has given some support to this proposal. Thus, despite recognizing the possible justification of short periods on the grounds of urgency, it did not accept them when the Commission itself could have acted more promptly. In other words, the Commission has to solve its internal problems before asking others to be more efficient. In fact, it should make it clear that the long duration of the Article 169 procedure can be, at least sometimes, more a consequence of the time that the Commission needs to take a decision and implement it, than the result of the delay in receiving an answer from a Member State.

However, for counting that maximum period, the time that Member States take in answering the Commission's formal notices and reasoned opinions should be discounted, provided that that time exceeds what is considered reasonable according to the circumstances.

Moreover, as has been noted, to introduce a maximum time-limit within which the Commission should take its decision, i.e. to initiate an infringement procedure or to drop it, could also be regarded as a guarantee for private complaints.[32] Although the Commission has discretion whether or not to initiate an infringement procedure, the discretion should not imply arbitrariness that leaves the complainant defenceless. Thus, if an unreasonable period of time has elapsed without the Commission having taken any action, the individual should be allowed to bring the case to the ECJ, asking it to oblige the Commission to act, provided that there is a sufficient interest to be protected, a specific interest, and no other equally convenient remedy.[33]

Alternatively, the delay of the Commission in acting can be considered as a case of maladministration suitable to be subject to an inquiry of the European Ombudsman [see Article 138e EC Treaty]. In fact, delay is among the cases of maladministration controlled by some national Ombudsmen.[34] Limitation periods and prescription.

The principle of legal certainty also entails fixing a maximum period of time concerning the moment in which the suspected breach of EC law was committed. In other words, the principle of legal certainty requires that an infringement procedure should not be initiated if it concerns an event whose effects disappeared a certain time ago. In the same way, the Commission should not be able to force a Member State to pursue an infringement which supposedly happened in its territory, if it occurred before a previously fixed period. The introduction of some statutes of limitation is a guarantee for the fairness of the whole system.

A recent Regulation that modifies the clearance of accounts procedure has fixed a maximum period of two years preceding the Commission's action.[35] This criteria, although maybe not the same period, could perfectly well be generalized. Limits to the Commission's power to impose deadlines on Member States' action.

The right to be heard implies that the deadline has to be long enough to allow Member States to present available defence, to consult the central, regional or local public entities involved, to coordinate the administrative action of the different entities involved and to confront or rebut every piece of evidence presented by the Commission.

Moreover, the deadlines can differ among different cases. In this sense, the Commission should first make an evaluation of the complexity of the case before imposing a deadline to answer. More complex cases will require longer time-limits than simple ones. However, that first evaluation should be sufficiently flexible to accommodate adjustment if it appears during the procedure that the Commission's initial assessment was unrealistic. On the other hand, the Commission should take into account the fact that some Member States have to deal, where the political organization is decentralized, with regions or States fully competent in matters regarding Community law.

Nevertheless, one thing is the time required to answer a formal notice, which usually just involves a discussion of law and facts, and another is the period necessary to comply with a reasoned opinion, which usually implies the need to change a factual and legal situation in a Member State. Here, the different circumstances will determine the acceptability of one period or another. However, since the Commission is, at present, not required to indicate what steps the Member State concerned has to take to eliminate the alleged breach of Community law, it does not usually take this element into account to lay down a different deadline. Furthermore, sometimes the Commission lacks information concerning the difficulties that the Member State concerned may encounter to take the actual measures needed to put an end to an infringement,[36] or if there is more than one way to correct the infringement.[37]

In order to cope with some of these problems we suggest an alternative approach: the Commission should ask the Member State to answer three questions in the reasoned opinion:

(1) if it agrees with the Commission's statement made in the reasoned opinion;

(2) how much time the Member State considers is required to take the necessary steps to comply with it;

(3) and the reasons that justify that such time could not be shorter.

For answering these three points a short period would be enough, e.g. one month. In the case of a negative or lack of an answer, the Commission could feel free to bring the matter to the ECJ. If the Member State agrees with the Commission statements, the negotiation/discussion between the Commission and the Member State could focus on the kind of measures to be taken, or the periods foreseen by the Member State as the minimum for the adoption of those measures. Furthermore, in the case that the persisting conflict were reduced to the measures to be taken, the procedure before the ECJ could be notably abridged.

This proposal will also clarify the discussion before the ECJ and would give the Member States the opportunity to know, already at the administrative stage of the process, whether the measures they intend to adopt are appropriate according to the Commission. In fact, the Commission is, in any case, responsible for checking whether the measures taken by a Member State to comply with a judgement of the ECJ are enough or not.[38] Furthermore, when the case-law of the ECJ has already clarified some characteristics of the measures to take, this phase would give an opportunity to the Commission to remind the Member State of this fact.[39]

Finally, Member States should accept, as a counterweight to this more favourable model, some negative consequences of their lack of response. Under the present situation, Member States, as was pointed out by some officials interviewed, do not suffer any negative consequences if they do not answer the formal notice and reasoned opinion (see infra the Section on right to the defence). This lack of an answer, when persistently and deliberately made, could produce two consequences: one strict, that the ECJ would consider that such a Member State has accepted its guilt; another, more moderate, that the silence of a Member State could justify a reduction of the deadlines for subsequent procedural phases.[40]

Whether these proposals are considered appropriate or not, I am convinced that there is room for improving the present situation. At least, it seems clear that further thought is needed concerning the Commission's approach to deadlines within infringement procedures. In fact, there are enough reasons to justify a change of the present approach, respecting the necessary flexibility of the Commission's action. In future changes, Member States should be more involved in the discussion concerning deadlines and procedure. This could also help to make procedures more realistic and would avoid the feeling that artificial criteria are being imposed.

[ ]9Cf. SCOTT, I.R. "Is Court Control the Key to Reduction in Delays?" (1983) 57 The Australian Law Journal 16.

[ ]10BERNSTEIN, Michael and KIVIAT, Steven, "Running Afoul of Time Deadlines" (1994) 4 OHA Law Journal 35, note 15.

[ ]11See for example, Case 28/81, Commission v. Italy [1981] ECR 2577-2593, paragraph 6, p. 2582.

[ ]12See SCHERMERS and WAELBROECK op. cit., p. 309. See, for more information, infra Section on discretion.

[ ]13In Case 74/82 -Commission v. Ireland [1984] ECR 317-348, para. 12, p. 338- the ECJ stated that it was unreasonable "(...) to allow a Member State five days to amend legislation which has been applied for more than 40 years and which, moreover, has not given rise to any action on the part of the Commission over the period which has elapsed since the accession of that Member State to the Community. Furthermore, it is clear that there was no particular urgency".

[ ]14Case 293/85, Commission v. Belgium [1988] ECR 305-354, para. 16, p. 352.

[ ]15In this sense, see Case 85/85, Commission v. Belgium [1986] ECR 1149-1170, paras. 12 and 13, p. 1165. See also Case 293/85 cit., para. 18, p. 353.

[ ]16See Case 293/85, cit., para. 17, p. 352. The Advocate General in this Case supported the Commission's arguments and accepted that the Commission had been flexible with the time-limits laid down.

[ ]17See Case 301/81, Commission v. Belgium [1983] ECR 467-481, para. 9, p. 477.

[ ]18Under Article 93 the situation is, however, different. See Case 120/72, Lorenz v. Germany.

[ ]19See in this sense Case 7/71 Commission v. France [1971] ECR 1003-1037, para. 5, p. 1016 (this Case refers to Article 141 EAEC Treaty which has the same wording as Article 169). See also Case 324/82 Commission v. Belgium [1984] ECR 1861-1890, para. 12, p. 1878; Mr TESAURO's Opinion in Case C-359/93 Commission v. The Netherlands [1995] ECR I-157 to I-178, p. 162.

[ ]20See Section on discretion.

[ ]21cit., para. 6, p. 1016.

[ ]22cit., para. 12, p. 1878.

[ ]23These internal rules/guidelines are neither published nor communicated to Member States or other interested parties, but they have existed since 1977 and have been several times amended (the last time in 1996). In fact, it is unlikely that these rules will be formally published in the near future now that the ECJ has ruled that an act of the Commission can be annulled because of the Commission's failure to comply with one of its internal procedural rules, if the particular rule constitutes an essential procedural requirement, i.e., it was intended to guarantee legal certainty: see Case C-137/92P Commission v. BASF AG and Others, cit., paras. 75 and 76, pp. I-2652, 2653. In the BASF Case, the ECJ reduced the consequence of infringement of essential procedural requirements to annul the act in question, setting aside the judgement of the Court of First Instance which stated its non-existence.

In fact, if an internal rule is supposed to include essential requirements, it should be published according to Article 162 EC Treaty. Article 162 states that the Commission is obliged to adopt its rules of procedure

"[...]so as to ensure that both it and its departments operate in accordance with the provisions of this Treaty. It shall ensure that these rules are published".

Indeed, the general rules of procedures of both the Commission and the other Community institutions are usually published: see, for example, Rules of Procedure of the Court of Justice of the European Communities published in O.J. (1991) No. L176/7. The Commission has published its General Rules of Organization (O.J. 1960 No. P39/747) and its Rules of procedure (O.J. 1993 L230/15 as amended by O.J. 1995 No. L92/82).

The question is which rules of procedures must be published. In other words, the discretion of the Commission whether to publish its internal rules only remains as far as the ECJ does not state that a certain rule should be published in order to ensure that the Commission is acting in accordance with EC law. Furthermore, the ECJ has stated that although internal rules have, in principle, effect only within the administration itself and do not give rise to any rights or obligations on the part on third parties, if it is proved that in spite of their nature or form they are intended to have legal effects, an action for annulment can be brought under Article 173 EC Treaty: see, Case C-366/88, France v. Commission [1990] ECR I-3571 to I-3602, paras. 8-10, p. 3598. In fact, the ECJ anulled the Commission's internal rule in this case, taking into account that, despite its legal form, its content aimed to produce legal effects on third parties, namely administrations. Moreover, the Council was the only entity empowered to adopt implementation rules in such a case [Anotated by DELLA CANANEA, G. in (1992) 3 Riv. Ital. Dir. Pubbl. Comunitario 887-900].

However, if a rule has only the purpose of organizing the internal functioning of the Commission's services in the interests of good administration, it would not constitute an essential procedural requirement: see Case C-69/89, Nakajima v. Council [1991] ECR I-2069 to I-2204, paras. 49 and 50, p. I-2183.

[ ]24Cf. European Voice, 2-8 November 1995, vol. 1, number 5.

[ ]25The Commission agreed on this new internal arrangements in July 1996.

[ ]26For the case-law of the ECJ on this matter, see infra Section on the right to the defence.

[ ]27See Article 3 of the Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (O.J. 1989 L395/33). However, the Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (O.J. 1992, L76/14), allows, without a clear reason for such a difference, a time-limit of 30 days.

[ ]28Cf. ARROWSMITH, Sue "Enforcing the Public Procurement Rules: Legal Remedies in the Court of Justice and the National Courts" in ARROWSMITH (ed.) Remedies for Enforcing the Public Procurement Rules (Winteringham: Earlsgate Press, 1993) p. 12.

[ ]29ISAAC, Guy, La procédure administrative non contentieuse (Paris: L.G.D.J., 1968) p. 355.

[ ]30Concerning the concrete need for legal principles to fix deadlines, see MACRORY, Richard "The enforcement of Community Environmental laws: some critical issues" (1992) 29 CMLRev 368.

[ ]31Cf. Article 6(9) of Council Regulation (EC) No. 384/96 on protection against dumped or subsidized imports from countries which are not members of the EC (O.J. 1996, No. L56/1).

[ ]32See in this sense BRONCKERS, Marco "Private Enforcement of 1992: Do Trade and Industry Stand a Chance against the Member States?" (1989) 26 CMLRev. 525.

[ ]33These are the conditions required to ask, in the United Kingdom, for the legal instrument of "mandamus". This instrument is required to enforce the carrying out of the duty of the body to exercise its discretion according to law. See RECCHIA, op. cit. pp. 116, 117. However, the possibility for the individual of bringing a case to the ECJ in such a case, even under strict circumstances, would imply that the Commission has a legal duty to pursue infringements to EC law, which is not the case at present, according to the existing case-law (see Section on discretion).

[ ]34For example, the Parliamentary Commissioner in the United Kingdom. In fact, maladministration has been defined in Britain as covering "bias, neglect, inattention, delay, incompetence, ineptitude, arbitrariness and so on", cited by WADE H.W.R. & FORSYTH C.F. Administrative law (Oxford: Clarendon Press, 1994) p. 89, note 97. See also RECCHIA, op. cit., p. 127.

[ ]35New version of Article 5(2)(c) of Reg. 729/70 as amended by Council Regulation (EC) No. 1287/95 (O.J. 1995 No. L125/1).

[ ]36See, for example, Case 85/85, Commission v. Belgium [1986] ECR 1149-1170, para. 9, p. 1164. In this case, the Belgian government alleged the considerable autonomy that Belgian municipalities enjoy in the area of concern. See also Case 74/82 cit., especially in para. 12, p. 338, where the ECJ accepted that it was unreasonable to allow a Member State five days to amend legislation which has been applied for more than forty years.

[ ]37Case C-247/89 Commission v. Portugal [1991] ECR I-3659 to I-3694, especially in para. 20, p. I-3688.

[ ]38See, infra sub-section on this issue.

[ ]39For example, where an action concerns the existence of unlawful measures whether of a legislative or administrative nature, the State has to remove or repeal those measures because it is not enough to cease to apply them, or mere administrative practices, which may be altered at the national authorities' will, do not constitute proper transposition of a directive.

[ ]40According to some Commisssion officials interviewed, in the area of VAT some Member States systematically refuse to answer, in an attempt to gain some time.

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