Jean Monnet Center at NYU School of Law

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5. Some possible explanations to the creation of reinforced procedures.

5.1. The active participation of Member States through the Committees.

The participation of Member States, within the various Committees, in the implementation process of Council acts, has been considered positive in order to make them less reluctant towards new Commission proposals.[113] However, the role of those Committees, and therefore, that of Member States, in the actual process of ensuring the application of EC law has not received the same attention.

Given the fact that Member States are potentially responsible for infringements of EC law, it can be argued that they should not be able to participate actively in the procedures, set up precisely to fight against those infringements. In other words, they lack the required objectivity to make a valuable contribution to those procedures. In fact, concerning Article 169 procedure, the Commission has always refused to accept any interference of Member States. Although some Member States have asked the Commission to discuss, within the Council, the criteria followed, in applying Article 169, the Commission has rejected this possibility, claiming that it is the only one empowered by the Treaty to apply that Article.[114]

However, concerning the application of Article 169 procedure, the ideal model of an independent and autonomous enforcement policy has been, in part, affected by the political need of counting on Member States' inputs and support. First, there is the Member States' attempt to intervene in the Commission's policy of supervision and enforcement, under Article 169, through the existing Committees, in the different policies. These attempts cannot be disregarded, although they have only been partially successful. Thus, the "Consultive Committee for the single market" plays a limited role in this area. It deals with the problems of transposition and application of single market directives. In most of its meetings, there is first a "tour de table" concerning the infringement procedures and their political repercussions. Besides, Member States can make suggestions for improving the management of the different infringement procedures.

Another interesting example is the Fiscal Policy Committee. This Committee is employed by the Commission, at its own convenience, for solving problems of interpretation of EC law. If the 15 Member States agree upon one interpretation of a certain piece of legislation, the Commission, even if it disagrees, would very rarely initiate an infringement procedure against an application of that view. If there is a difference of opinion among Member States (for example, 7 against 8), the Commission would normally initiate infringement procedures against those Member States that support the view she holds to be erroneous. If there are 14 against 1, that pressure would be usually enough to force the isolated Member State to change its position. Finally, the Commission can use the result reached in the above said Committee to support its views in the judicial proceedings before the ECJ.

A second way, through which Member States have attempted to intervene in the Article 169 procedure, is the "meeting of heads of Commissioners' Cabinets". This body plays, within the Commission, a major role in the management of infringement procedures. It has increasingly become a meeting of political discussion, where the interests of Member States appear subtly represented. There may be negotiations between Cabinets concerning certain infringements in order to look for an arrangement. Some specific circumstances, such as the proximity of a national election, may be taken into account, and postpone the initiation or continuation of an infringement procedure. This participation can be considered to alter the institutional role of the Commission, but it can also be characterized as unavoidable and even positive. In fact, the Commission cannot act disregarding the political interest at stake, and the Cabinets can understand better the difficulties a Member State faces in applying a certain rule. However, the Commission, as a whole, must have in mind the Community interest and has to avoid being trampled by the most powerful countries. Otherwise, its prestige and reputation would be at risk, which could eventually be used to support a reduction of its powers, for example, a reduction of the Commission's discretion in this area.

Moreover, in cases where the Commission has been granted the power of correcting an infringement to EC law by adopting a decision, Member States, as well, have usually managed to introduce the procedural obligation of being formally consulted before the final decision is adopted. This participation of Member States takes place mainly in the form of an Advisory Committee. The first and clearest example appears in competition policy. Thus, Article 10 of Regulation 17/62 created the "Advisory Committee on Restrictive Practices and Monopolies", which has to be consulted by the Commission, prior to the decision-taking. The role of this Committee is very important, since it does not only bring its opinion forward, before any final decision, but it also plays an important role in the orientation of the competition policy (twice per year the Director Generals of competition meet for the political issues). In this case, however, the vigilant and active participation of Member States can be justified because they are not, in principle, subject to the Commission's action.

However, the model of competition policy has been used, with some differences, in all the procedures, which empower the Commission to terminate an infringement, by adopting a decision. As we have seen, these Committees can be mere consulting ones (cf. "Advisory Committee in air transport policy", "Fund Committee in clearance of accounts"), but also its intervention can be more powerful (cf. protection of health and safety procedure).

It seems clear, to conclude, that Member States are not ready to reinforce the powers of the Commission, without reinforcing likewise their participation in these powers. This process can only be considered dangerous if it originates the Commission's capture by national governments. Political or discriminatory enforcement would destroy the credibility of the Commission, in the eyes of other countries, firms and individuals.[115]

5.2. The imperfect contracting theory

Another possible explanation for the creation of new tools, by secondary legislation, is the imperfect contracting theory. According to this theory, it is "[...]extremely costly, if not impossible, for actors to make exhaustive agreements, that anticipate every dispute, that may arise between them".[116] Therefore, parties will make incomplete contracts that do not specify how participants should behave, under all possible circumstances.[117] The Treaty, as an imperfect contract, was not, then, able to anticipate all the problems that the application of EC law could present. The function of the legal order, secondary legislation and case-law, should be to adapt and apply the "rules of the game", contained in the Treaty, to specific cases. In other words, Institutions -in the Community the Commission's role is predominant- are called to perform an important role of filling gaps.[118]

However, in Community law, it seems as if new events had taken both, the Commission and the Community legislator, unaware of the fact that different policies and different realities demand different tools for supervision and enforcement. In fact, the legal scheme, originally designed by the Treaty, has revealed itself as unable to meet the needs of the Commission to ensure that EC law is properly applied by the Member States. The present situation can be characterized as contradictory. On the one hand, the Treaty creates a system of supervision and enforcement based on a general procedure, i.e. Article 169, and some exceptions are clearly specified (i.e. Article 93(2), competition policy). On the other hand, we find several procedures, created by secondary legislation and the case-law of the ECJ, to meet particular needs. It appears that Article 169 procedure is not appropriate, as a legal instrument, to fight against all the failures of Member States to fulfil their obligations under EC law. The path taken implies the creation of additional means to enforce and supervise EC law.

5.3. A legal explanation?

A possible legal explanation of this situation is that, while Article 169 procedure refers to obligations deriving directly from the Treaty that a Member State has to fulfil, there are other more specific Member States' obligations, created by secondary legislation, whose supervision and administrative enforcement require new procedures. However, the traditional legal doctrine could argue, that such an interpretation forgets the fact, that the Community has only "attributed competences and powers", and therefore, any new obligation or legal tool could only be accepted, taking, as legal basis, Article 235 EC Treaty, which did not occur in most of the examples analysed. In addition, some of the reasons used to justify the need for a new procedure, such as the need for quick enforcement, or the need to state which measures the Member State has to take to comply with EC law, could have been satisfied by a legal development of Article 169 procedure. In fact, it can be said that a specific area should not serve to justify a specific procedure, but the specificity of the situation (i.e., the urgency or the possibility of irreparable damage), which usually will apply to more than one area.

Also, it can be argued that a characteristic, which has influenced the creation of different supervisory and enforcement means, is the different type of legislative instrument used in each area. Thus, on the one hand, the Commission action, concerning the policies included in the White Paper, has been focused, in past years, on the phases of preparation, adoption and transposition of the numerous directives affecting each area. Only very recently, has the actual problem of effective application and enforcement started to be considered. On the other hand, in the case of common policies, where regulations (i.e. direct applicable rules) are predominant, the Commission can easily concentrate on checking the practical application and require the same level of application in all Member States.[119]

Nevertheless, it seems clear that the creation of new procedures does not seem to obey a general strategy of fulfilling new needs demanded by all the areas characterized by certain features. In reality, nor can the financial consequences for the EC budget serve to justify all the far-reaching enforcing and supervising tools granted to the Commission (i.e. public procurement, transport policy, competition). Instead, those tools appear to be more the result of political bargaining within the Council, and between the latter and the Commission, on a case by case basis. Thus, Member States are usually reluctant to grant more general supervision and enforcement powers to the Commission. In other words, a horizontal rule has difficulties in being accepted by Member States, since there are different interests between the Commission (more interested in assuring the efficiency, "effet util" of EC law, and increasing its powers), and Member States, which usually claim the need for respecting the legal principles, recognized by their national Constitutions, and their own powers. But where there is a concrete application problem in a sector that needs to be solved, the possibilities to reach an agreement are more feasible. For example, if there is a clear risk that a concrete Community measure may be applied in a discriminatory way, even the countries, which are usually reluctant to grant more powers to the Commission, will normally support (given the fact that Member States distrust each other) the creation of a special procedure that implies the reinforcement of Commission's powers (for example, in air transport policy, the United Kingdom has been one of the most supportive countries to increase the Commission's powers).

[ ]113Cf. WEILER, J.H.H. "The Community System: the Dual Character of Supranationalism" (1981) 1 Yearbook of European Law 294.

[ ]114One of the countries that has supported more actively the convenience of creating a multilateral forum for discussing the infringements is Germany. Source: interviews with Commission officials. See also TIMMERMANS, C.W.A. "Judicial Protection against Member States" in CURTIN D. & HEUKELS T. Institutional Dynamics of European Integration op. cit. This author, deputy-director at the Legal Service of the Commission, argues, in this article, that the infringement procedure, under Article 169, cannot be subject to a test of subsidiarity (at p. 392).

[ ]115GATSIOS and SEABRIGHT have identified three types of capture the regulatory agencies may be subject to: "firm capture", "government capture" and "bureaucratic capture" (increasing influence of the individual aims of the staff) [GATSIOS, K. and SEABRIGHT, P. "Regulation in the European Community" (1989) 5/2 Oxford Review of Economic Policy 46].

[ ]116GARRET, Geoffrey "International Cooperation and Institutional Choice: the European Community's Internal Market" (1992) 46 International Organization 557.

[ ]117Cf. GARRET, Geoffrey & WEINGAST, Barry "Ideas, Interests and Institutions" in GOLDSTEIN, Judith & KEOHANE, Robert Ideas and Foreign Policy (Ithaca: Cornell University Press, 1993) p. 180.

[ ]118GARRET, Geoffrey & WEINGAST, Barry "Ideas, Interests and Institutions" op. cit., pp. 184 and 187. However, these authors refer more to the ECJ than to the Commission at the European level (at pp. 197 et seq.).

[ ]119In fact, in the single market area the only important regulations have been those creating the European agencies.

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