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The case-law of the ECJ grants Member States an important guarantee in this area. Indeed, some of the most important decisions made by the ECJ stress that the administrative phase of these proceedings represents an essential procedural requirement and guarantee for the protection of Member States' interest that cannot be ignored, even if the Member State concerned does not consider it necessary.
Such a guarantee recognizes the right of Member States to be heard. The Commission cannot introduce any new element either in its reasoned opinion or in its action before the ECJ, if the Member State did not previously have the opportunity to make its observations because those elements did not appear in the formal notice. If the Commission does not respect this requirement, it will cause the inadmissibility of such an action. For example, if the Member State concerned changes the rules under discussion while the judicial process is still pending, the Commission would usually have to initiate a new infringement procedure to attack the new law, unless it is clearly shown that the newly adopted legislation maintains the very points criticised by the Commission in the same way, which will normally be difficult to prove. This may provoke an excessive and unjustified slowness in the procedure. The Commission may prefer then to initiate the infringement procedure in very broad terms in order to avoid any ulterior changes in the substance of the procedure. In fact, the ECJ has sometimes regretted that the Commission's action had not been designed in broader terms.
Moreover, the Commission has to take into consideration all the replies and arguments put forward by Member States, and it cannot claim internal coordination problems to justify that a certain document sent by a Member State has not been taken into account.
However, the Treaty does not always give the same value of essential guarantee to the right to the defence during the administrative phase. Thus, within special procedures there is the possibility for either the Commission, or even any other Member State, to bring the matter directly before the ECJ without any previous administrative phase, cf. Articles 100a(4) (introduction of a more demanding requirement than the harmonized measure, now paragraph 8 after the amendment of this Article by the Treaty of Amsterdam) and 225 (unjustified measures introduced for reasons of national security).
Those special cases can show that the case-law of the ECJ in some way over-protects Member States under the administrative phase of Article 169 procedure. In fact, we can wonder whether Member States can be considered to be in the same position of defencelessness and need the same legal protection as legal persons and individuals in their relations with the Commission. Furthermore, it has been argued that rights included in the European Convention on Human Rights conceived for individuals should not be transposed to enterprises without careful consideration; so their application to Member States may appear even more doubtful. Besides, in other procedures, i.e., State aid, the ECJ has clearly accepted that not every violation of the right to be heard is always enough to provoke the annulment of the procedures. For example, there will no annulment if the content of the decision affecting the Member State concerned had not been different in case the right to be heard had been accomplished.
Moreover, the present broad interpretation of the right to the defence of Member States can create a sort of over-protection for Member States in their relation with the Commission. This can happen, in at least two cases.
First, up to now, the lack of any answer, even deliberate and without any justification, to both formal notice and reasoned opinion does not entail any negative consequence for Member States during the trial, even in terms of reversing the burden of proving the breach. However, the consequence of failing to file a written submission in its defence during the judicial proceedings before the ECJ is that the judgement shall be against the defaulting party. Although this difference between the administrative and judicial phase may be justified, the continuous and deliberate renunciation of the Member State concerned to use its right to the defence should, at least, imply for the State that it must submit its answer within a reduced time-limit. It is a totally different question that the Commission has to fix realistic deadlines for Member States to send their answer.
A second possible case of over-protection is when Article 169 procedure is the consequence of the Member States' failure to comply with a Commission decision adopted after another administrative procedure where the Member State has had the opportunity to intervene. In this case, to keep the two administrative phases, formal notice and reasoned opinion can be considered a waste of time.
To sum up, a more flexible approach to Member States' right to be heard should be encouraged, at least in certain special circumstances, as referred above.
[ ]107See, for example, Case 31/69 Commission v. Italy  ECR 25-42, para. 13, in p. 33. More recently, see Case 211/81 Commission v. Denmark  ECR 4547-4573, paras. 9-11, pp. 4557, 4558.
[ ]108See Case 211/81 Commission v Denmark cit., paras. 8, 9.
[ ]109Cf. Case 7/69, Commission v. Italy  ECR 111-125, paras. 4-6, p. 117. However, if there is only a draft that has not yet been approved that proceedings will refer to the law still in force, see: Case 166/82 Commission v. Italy  ECR 459-481, paras. 16, 17, p. 470. See, more recently, Case C-274/93 Commission v. Luxembourg, 25 April 1996, and commenting on this Case: ALONSO GARCÍA, Ricardo La responsabilidad de los Estados miembros por infracción del Derecho Comunitario (Civitas: Madrid, 1997), p. 86.
[ ]110See, for example, Case 270/83 Commission v. France  ECR 273-308, para. 9, p. 301. CANDELA CASTILLO, J. & MONGIN, B. ["Les infractions au Droit communautaire commises par les États membres: quelques apports clés de la jurisprudence récente de la Cour de Justice en matière de manquement" (1996) 394 Revue du Marché commun et de l'Union européenne 57] have critized the fact that the Commission cannot introduce new elements in the procedure, even if the observations of Member States would make it appropriate to do so.
[ ]111See Case C-266/94 Commission v. Spain (Order of 11.7.1995)  ECR I-1977 to I-1984, paras. 20-24, pp. 1982, 1983. However, the CFI has interpreted this obligation in a more flexible way concerning the supervision of State aid. Thus, in Case T-95/94 Sytraval v. Commission (of 28 September 1995 nyr.) the Court stated that the Commission is not obliged to discuss all the issues of fact and law raised by the parties, although it has to give a reasoned answer to each of the objections raised. Furthermore, the Commission can refer to the de minimis rule where the point in question is so insignificant as not to warrant the Commission spending any time on it.
[ ]112Cf. EHLERMANN, C.D. "The European Administration and the Public Administration of Member States with regard to Competition Law" (1995) 8 European Competitition Law Review 455
[ ]113Cf. Case 259/85 France v. Commission  ECR 4393-4420, paras. 12 and 13, p. 4415.
[ ]114This complaint was pointed out by some of the officials interviewed. One of the sectors where Member States appear more reluctant to answer is the fiscal sector.
[ ]115See Article 38 of the Statute of the Court of Justice of the European Community.
[ ]116See supra Section on deadlines.
[ ]117For example, when Article 169 procedure is a consequence of a previous Article 90(3) one.
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