Jean Monnet Center at NYU School of Law

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3.3. Coordination between the Commission and the Member States within the framework of infringement procedures.

This part of the study was completed by means of the questionnaire sent to national officials, together with interviews at the Commission with officials from the Secretariat General, Legal Service and legal units in relevant sectorial services. They were reacting to the opinions previously manifested by national officials.[196]

This section will tackle three main aspects (i.e., positive points, negative points and suggestions for improvement), where the position and opinions of national and Commission officials are compared.[197] Finally, the last sub-section will be devoted to making some general comments on those opinions.

3.3.1. Positive points in the relations between national administrations and the Commission. National officials' position.

A. Package meetings between representatives of the technical departments of the Member States and the services of the Commission (especially from the former DG III and the present DG XV) have proved to be very useful as a forum for the exchange of opinions, clarification and simplification of many cases (B, D, E, P, GR).

B. Informal contacts with the Commission are very good: national Departments of State have frequent consultations with the Commission both on proposed national legislation and in order to resolve differences of opinion on the application of existing legislation (IRL, P). The Commission is flexible in the application of the deadlines imposed on the State in order to answer its formal notices (P).

C. Patience of the Commission, given the slowness of national legislative procedures (I).

D. With the achievement of an internal market, the Commission seems to be increasingly developing its role as interface between national administrations, and indirectly within the Member States themselves (I). The reaction of Commission officials.

Concerning positive points, the Commission officials were naturally inclined to agree with the suggestions made by national officials. Therefore, their comments were very few and not always relevant. Nevertheless, we can point out that they were in favour of improving the informal contacts with national administrations and, at the same time, they suggested that those contacts be increasingly formalized and intense.

3.3.2. Negative points in the relations between the national administrations and the Commission. National officials' position.

A. Lack of information. Most of the national officials think that they do not receive enough information from the Commission during the different stages of the procedure (B, D, E, NL).

B. Absence of positive reactions. The absence of positive reactions from the Commission to the answers given by the Member States within the framework of control procedures gives rise to uncertainty (B, D, E). There are also very long delays between a Member State replying to a letter of formal notice/reasoned opinion and the issuing by the Commission either of a reasoned opinion or a reference to the ECJ or of formal notification of the dropping of proceedings (IRL).

C. Rules of procedure. There is a lack of precise rules regarding the fundamental points of supervision procedures (E, F).

D. Contact with the Commission. There is also an overlap in correspondence and delays in reaching the relevant office in the Commission; this causes inconvenience, such as the Article 169 procedure being started while the Community law concerned has already been implemented (IRL, NL).

E. Short deadlines. The period given by the Commission to reply to its formal notices and reasoned opinions (2 months) is not realistic: it should be longer. This problem is particularly important for Member States with a decentralized structure, where coordination with regional and local administrations is sometimes necessary, which makes the procedure more complicated (D, E). Another problem is that when a Member State asks for an extension of certain time-limits, it usually receives confirmation from the Commission only when such a time-limit has been exceeded (D, GR). The reaction of Commission officials.

A. Concerning lack of information, each month the Secretariat General (SG) sends each Member State a list of the decisions taken by the Commission referring to infringement procedures. This list includes non-official information referred to: decisions to drop a case, initiate an infringement procedure, send a reasoned opinion, or bring the case to the ECJ. However, in urgent cases, the Commission can take decisions concerning infringement procedures in any of its weekly meetings. In these cases it is difficult to inform the Member States before they have official notification of the procedural step that has been taken. Furthermore, present rules about confidentiality restrain the Commission from informing the general public of complaints and other decisions, except in cases of lack of transposition.

B. Concerning the absence of positive reactions, some officials interviewed manifested that the average time the Commission's responses take is statistically shorter than the Member States' answers. Although there is no formal notification on the dropping of the procedures, Member States are informed via the list mentioned in the previous paragraph. Moreover, the fact that the Commission decides on the best way to avoid bringing a case to the ECJ may justify prolonging the time that the Commission takes to react. According to these officials, most Member States accept the present situation.

C. Concerning rules of procedure, there were three main different positions defended by the officials interviewed. First, some officials were in favour of enacting a general code of procedures defining the powers of the Commission in order to improve clarity and transparency. Such a code could be a sort of general framework, which should be applicable in the absence of specific powers in the different policy areas. It could draw inspiration from the specific regulations that deal with the Commission's powers in enforcing competition policy. In fact, the Commission does not have any reason to be afraid of such a code, since its powers derive from its independence from national interests. Furthermore, in agricultural policy some steps have already been taken to harmonize the rules of procedure: i.e. Council Regulation (EEC) No. 3508/1992 establishing an integrated administration and control system for certain Community aid schemes.[198] Such initiatives could be generalized.

A second group of officials were in favour of a general framework, but they pointed out some problems. For example, the code should only concern the relations between the Commission and Member States, without giving more powers to private complainants against the Commission. Another problem would be to find a balance between the powers of Member States, the Commission and the ECJ.

A third group of officials were clearly against more precise rules. One reason given is that the Commission will never propose a rule that could imply a loss of some of its powers. For example, the Commission is not planning to amend Regulation 17/62 in competition policy, even if it is considered necessary, because it is afraid of losing power, as it did when it was discussing the Regulation on merger controls, where the Commission wanted to apply the system of Regulation 17/62, but the Council did not accept it. Furthermore, these officials argued that highly political questions, such as infringement procedures, do not allow for clear rules.

D. Concerning contact with the Commission, the problem of overlapping in correspondence is usually due to the delay of national answers more than to a lack of efficiency of the Commission.

E. Concerning short deadlines, there were two positions. On the one hand, some officials pointed out that although the Commission usually gives Member States two months to answer, in fact they always have more time because they are usually aware of the initiation of an infringement procedure before they receive the letter. Furthermore, Member States should adapt themselves to Commission strategy and design an internal strategy to respond to the Commission's action.

On the other hand, other Commission officials agreed with national officials concerning the shortness of the deadlines. According to them, it seems contradictory that the Commission can impose short deadlines on Member States, while its own answers are made at its convenience.[199] However, they also pointed out that the Member States that apply EC law best, also answer in a shorter time.

Finally, concerning the last point, the problem of receiving, in time, the confirmation of extensions of time-limits for a national answer, the officials interviewed accepted that those problems existed but only in exceptional cases.

3.3.3. Suggestions for improving these procedures. Suggestions made by national administrations.

A. Regarding the lack of information, the Commission should give more information about what it thinks of the answer forwarded by a Member State in response to its complaint. The Commission should also inform the Member State of its decision to bring a case before the Court of Justice (D).

B. Regarding the absence of positive reactions from the Commission, the Commission should send a formal communication on each case that has been dropped (GR, NL, and in the language of the State concerned, in Germany's opinion). There should be the possibility of using the CELEX system with respect to this issue (GR).

C. Regarding the rules of procedure, it would be desirable to establish precise rules regarding the main points of monitoring procedures (deadlines, channels of correspondence, greater transparency of decisions, initiation and termination, etc.) (E, F).

D. Regarding contact with the Commission, informal contacts with the Commission should be improved (D). There should also be a liaison officer between the Commission and each Member State, who might be addressed by Member States in case of questions (since, at present, it is seldom clear on a national level which directorate and which person one should address) (NL).

E. Regarding short deadlines, the period provided for by the Commission to reply to its letters should be three to four months, but at any rate never less than two months (D).

F. Other suggestions:

-The annual report of the Commission should provide a complete survey of all cases (D, IRL). It would also be useful to hold discussions on these reports with the Commission as well as with other Member States (D).

-There should be a means of discussing cases of common interest between Member States in a multinational forum. In practice, bilateral meetings take place between Member States (D).

-The technique of package meetings should be extended to other areas (D).

-Individuals, enterprises and others should only be able to address complaints directly to the Commission in cases of a fundamental nature. In other cases they should be addressed themselves to the national courts (in application of the subsidiarity principle) (D).

-As regards education and information on Community law, actions should be taken not only regarding economic actors and lawyers, but also civil servants, judges and local authorities (F).

-The Commission should convince Member States to establish uniform rules for transposition procedures (i.e. by combining the national legal services responsible for amending national legislation in accordance with Community directives, and the national legal experts in charge of the judicial procedures before the Court of Justice) (I). The reaction of Commission officials.

A. Concerning the lack of information, the officials interviewed distinguished between the letter pre-169, which officially does not exist, and the decision to bring a case to the ECJ. Concerning the latter, according to the Commission officials interviewed, most of the Member States agree with the present system of sending them a list of decisions taken once a month. Other Member States are more formalistic and prefer to receive an increasing amount of "paper". In any case, the best solution is to improve the Commission's internal deadlines to respond to the Member States' answer.

B. Concerning the absence of positive reactions from the Commission, it should also be possible to consult CELEX for the transposition of directives. In this sense, an initiative has been launched in the working group concerning a proposal of Council Resolution on computering legal information, in which a uniform model appears to inform about the contents of the national rules transposing EC directives. However, infringement procedures are a more critical issue. The Commission has an internal database, but it does not give access to it from the exterior, since part of the information is confidential. Although it would be possible to allow Member States to consult part of that database, the officials interviewed were against this possibility.

C. Concerning the rules of procedure, see previous section

D. Concerning contact with the Commission, the model of a consultative committee for infringements, already existing in the area of the Single Market, could be extended to other areas.

Furthermore, although the Permanent Representations are still considered useful in general terms, the necessity of having to pass all the documents through them may sometimes cause unnecessary delays. Improving communications with Member States also depends on the internal system of coordination existing in each Member State. In fact, the communication is more efficient with some Member States than with others.

E. Concerning short deadlines, the officials interviewed were prepared to extend the deadlines for answers in some cases, but, in their opinion, a minimum period, which can be a guarantee for Member States, should not be fixed by rule.

F. Concerning other suggestions, first, the annual report could be discussed with Member States, but without institutionalizing these discussions. At present, each Member State can give its opinion within the framework of the package meetings and at other meetings. In fact, Member States, as addressees of that report, have the right to make observations. However, there have been few cases where Member States have disagreed with what the annual report states.

Second, a multilateral forum to discuss complaints would be against the institutional equilibrium created by the Treaty. It would be as if the Council assumed responsibility for the infringement procedures. Furthermore, there is a need to keep the proceedings secret.

Third, the package meetings have already been extended to environmental (DG XI), agricultural (DG VI), and telecommunications (DG XIII) policies.

Fourth, the problem of dividing responsibility in dealing with complaints is how to determine the criteria for that division. An Administrative Procedure Act could be the appropriate place to solve that problem.

Fifth, concerning information and training of economic and legal actors, there are already some Commission initiatives (i.e. the Legal Service) and public and private institutions working on it. However, these initiatives can always be improved.

Finally, regarding the possibility of establishing uniform rules for the national transposition of directives, Commission officials considered it a good idea but, unfortunately, it would be likely to come up against great resistance on the part of some Member States.

3.3.4. Some comments concerning positive, negative points and suggestions.

Oddly enough, national officials reported fewer positive than negative points in their relations with the Commission. Furthermore, some officials even refused to answer this part of the questionnaire. However, the officials contacted were most interested in suggesting ways of improving the present situation. Therefore, the conclusion to be drawn is not that the present situation is considered to be very negative, but that it can clearly be improved.

The suggestions and counter-suggestions made to improve the situation are relevant in themselves. However, some comments have to be made. First, concerning the suggestions of establishing uniform rules in national administration to transpose directives, the Commission itself has already gone further, by suggesting in an official document that:

"A certain homogeneity or equivalence of the control structures put in place by the Member States is an essential condition to avoid risks of distortion and to promote mutual confidence between administrations and between economic operators and to create confidence on the part of consumers in the product made available to him".[200]

The Commission has also shown its concern for having to deal with national inspectorates and implementation departments which vary in form, efficiency and structure among Member States and are often decentralised.[201] These suggestions, however, are clearly opposed to the principle of institutional autonomy.

A second comment to be made concerns the possibility for Member States to have access to the Commission's internal database on Article 169 procedure. The Commission has officially proposed setting up a system of communication and data exchange between administrations, in particular by electronic-mail, which has been approved by the Council.[202] However, the Commission appears reluctant to give direct access to its database. While it is understandable that the Commission needs to keep certain information secret, direct access to its database, where there is a permanent updating of every complaint and infringement procedure, would solve many problems of communication with Member States and would notably reduce the problem of delay in answering.

One general conclusion that can be drawn from the previous sections is that, while the Commission appears averse to accepting an excessive interference from national administrations, it is clearly in favour of a close cooperation with mutual respect for the role of both parties. The problem is putting those words into practice when the actions of each administration and the concrete limits on their action have to be defined.

[ ]196See previous section.

[ ]197The nationality of the national officials supporting each point appears between brackets.

[ ]198(O.J. 1992 L355/1). See also Commission Regulation (EEC) No. 3887/92 laying down detailed rules for applying the first Regulation (O.J. 1992, No. L391/36).

[ ]199See Section 2 on deadlines.

[ ]200Commission communication to the Council and the Parliament on "Reinforcing the Effectiveness of the Internal Market" (COM (93) 256 final) p. 15.

[ ]201Commission communication on "Reinforcing the Effectiveness..." op. cit. p. 16.

[ ]202Cf. Commission communication to the Council "Making the most of the Internal Market": Strategic Programme (COM(93) 632 final) p. 13; Council Decision on a Community contribution for telematic interchange of data between administrations in the Community (O.J. 1995, No. L269/23).

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