Jean Monnet Center at NYU School of Law

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4. Criteria to make procedures more coherent and efficient: building on success.

The previous analyses clearly shows that the infringement and supervision procedures, in EC law, need to be reformulated in order to preserve coherence. First, although most of the special procedures have been proposed by the Commission, and adopted by the Council, it can be argued, from a legal point of view, that the creation of new procedures would have required, either an amendment of the Treaty, or be based on a legal instrument adopted under Article 235 EC Treaty. The arguments supporting this requirement are three-fold. First, constitutional reasons; sometimes these procedures change the balance of powers between the Commission and Member States as stated by the Treaty, without a clear legal basis. Second, reasons of sound administration for, it is difficult to see what is the enforcement policy of the Community, if there is any. Third, practical reasons, since the present situation only provokes confusion and prevents transparency.

Secondly, a general and formal procedure, taking Article 169 procedure as its point of reference, should be completed and improved. It is clear that this procedure cannot cover all the heterogeneous activity of the Commission. However, variations from the normal procedure should be specified and justified, in order to avoid unnecessary complexity, which actually involves the necessary diversity. In the case of similar situations, matters that already work in one procedure should be extended to other ones. In fact, according to the principles of good administration, unless that there are objective reasons, it does not appear either logical or useful, that rules that create guarantees or criteria, which improve efficacy in one procedure, should be not extended to other infringement procedures.

In fact, the principle that a future Administrative Enforcement Act should follow is that a specific area would not be entitled to serve a specific procedure, but the specificity of the situation. Thus, the need for urgency or the possibility of irreparable damage should produce similar consequences in all the procedures. Furthermore, it should clearly specify when Article 169 procedure is to be used, and when other special procedures have to be created, via secondary legislation; for example, by stating the reasons that could motivate to grant the power to the Commission to solve infringements, via decisions.[112]

[ ]112For example, in the present air transport policy.

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