Jean Monnet Center at NYU School of Law

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4. Conclusions.

This paper has shown that there are still various procedural issues in need of clarification. The absence of formal legislation that develops the Article 169 EC Treaty allows the Commission to adopt internal rules to fill the gap, with the consequence that the Commission can have as many procedural rules as it needs. In spite of some advantages of this situation (for example, its flexibility) the present model may alter the balance of powers between the Commission and Member States as stated in the Treaty. Furthermore, that approach is not useful to offer general solutions to unclear procedural stipulations. Indeed, the ECJ case-law cannot precede the problems, but reacts once a particular problem has been solved in a concrete case by the ECJ. Moreover, the ECJ can only offer solutions limited to the particular problems brought before it, without being able to adopt general solutions.

There are strategic problems (i.e. limits of the use of Article 169) that require previous negotiation with Member States, since they are going to be affected by any possible solution, not as potential non-compliants, but as responsible for making EC law fully applicable in their territory.

This article has also analysed the problems of coordination that the Commission and national administrations have, both internal and between them, and how this issue affects an effective supervision and enforcement of EC law. One general conclusion to be drawn is that there is clearly room for improving coordination both within the Commission and within Member States, or in the relations between them.

In fact, the Commission should constantly attempt to adapt its internal coordination to the changing situation and take into account that Member States also have their own coordination constraints. Moreover, the latter have different models of internal coordination (i.e between different Ministries, with the regions and local governments) to respond to the challenge of supervising and enforcing EC law, and more concretely to the Commission's monitoring action under the Article 169 procedure and State aid.

In sum, if we want the Article 169 procedure to recover the role and importance that the Treaty attributed to it, some efforts of transparency, clarity and comprehensiveness have to be made concerning its regulation, which could be the source of a future European Administrative Enforcement Act. This approach is compatible with the need of taking it seriously and improving the efficacy of administrative action.

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