Jean Monnet Center at NYU School of Law

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6. The use of partnership and networks in supervising and enforcing EC law.

6.1. Clarification of concepts and purpose.

Very early in the history of the Community, scholars started using different terms to refer to the relations between the Commission and the Member States that implied that a sort of partnership was already taking place. For example Scheinman, even in 1966, defined the relations between the Commission and the Member States as "bureaucratic interpenetration":

"In its most simple form, bureaucratic interpenetration is the intermingling of national and international bureaucrats in various working groups and committees in the policy-making context of the EEC".[120]

This only showed that there was already, at that time, a real "partnership" between the Community and the Member States at the level of decision-making, since Member States participate directly in the framework of working-groups, COREPER, Council, and the numerous Committees under the Comitology system.

However, at the level of application and enforcement of EC law, the use of "partnership" has been traditionally more modest. Nevertheless, the fact that the Community policies created by the Treaties demand a new administrative infrastructure to be properly implemented and applied receives greater support every day.[121] In fact, under the Article 5 of the Draft EC Treaty prepared by the Luxembourg Presidency in June 1991, Member States and the Community were to commit themselves to establishing close cooperation between their administrative departments in order to ensure full compliance with EC law.[122] Furthermore, in the last few years the Commission has launched some initiatives by which to create informal structures that could improve the coordination of the different administrations responsible for supervising and enforcing EC law. These initiatives can be catalogued under the headings of partnership and networks.

"Partnership" has been considered in the U.S. as a necessary consequence of delegation.[123] In the language of the British Partnership Act of 1890 it is defined as "the relation which subsists between persons carrying on a business in common with a view of profit". Furthermore, according to "The Oxford English Dictionary", partnership could be defined as "[A]n association of two or more persons for the carrying on of a business, of which they share the expenses, profit and loss".[124]

Surprisingly enough the word "partenariat" has not appeared until very recently in French dictionaries, although it was commonly used by the newspapers. Instead, we could find the word "partenaire" defined as "pays, communauté, entreprise...avec lequel un(e) autre a des relations, des échanges", and more concretely "partenaires sociaux" as the "ensemble des organizations professionelles représentatives (syndicales et patronales) qui participent conjointement aux négotiations sur l'amélioration des conditions de travail".[125] Nowadays, however, "partenariat" appears defined as an "Association d'entreprises, d'institutions en vue d'une action commune".[126] In Spanish, a new corresponding word has been created: "partenariado".

In any case, it has been pointed out that the idea of partnership is more often used in the Community as a political slogan than as a management tool. From a public management point of view, partnership can be defined as "governance frameworks, which define the terms of cooperation among organizations in areas of interdependence and common interest without prescribing in detail how they should act under all circumstances".[127]

"Networks" is a concept very close to that of partnership. Thus, it can be characterized as a more elaborate form of partnership to assure coordination. In fact, the term "networks" is increasingly being used in the EC jargon instead of "partnership".[128] There is not much written in legal literature on networks and some people consider it not to be a legal concept at all.[129] Therefore, for a more detailed clarification of its meaning and purpose we have to look to some public management literature.

Networks imply the existence of a "net" of formally autonomous but functionally interdependent organizations.[130] Networks serve to develop credibility through team work in pluralistic organizations. One advantage of networks is that the different participants in the network appear interested in maintaining their reputation in the eyes of fellow enforcers in other countries.[131] However, one of the problems of networks is that the relations between the individual units require considerable effort to establish and maintain.[132] In fact, in the Community the Government ministries and officials often change.

Moreover, organizational networks can be considered an alternative to hierarchies. In this sense, interorganizational networks and partnership have also been suggested as a model to overcome the Commission's lack of capacity to manage a hierarchical model of relations with Member States.[133] In fact, networks do not necessarily have a power centre, and hence coordination is not necessarily done by hierarchic authority but by horizontal bargaining.[134]

6.2. Attempt to systematize the cases of partnership and networks for supervising and enforcing EC law.

The term of "partnership" was consecrated in Community legislation in Article 4(1) of Council Regulation 2052/88, which provides for a "close consultation between the Commission, the Member State concerned and the competent authorities designated by the latter at national, regional, local or other levels, with each party acting as a partner in pursuit of a common goal. These consultations are hereinafter referred to as the 'partnership'. The partnership shall cover the preparation, financing, monitoring and assessment of operations".[135]

In fact, the Community has adopted several measures that can be considered as legal status for the development of partnership and networks in aspects related to the supervision and enforcement of EC law. We will attempt to differentiate, although such a difference does not always appear clear, between initiatives that create partnership and those that set up networks.

6.2.1. Partnership between the Commission and Member States.

The "Sutherland Report" has suggested the development of a "partnership", often informal, between the Commission and Member States designed to help Member States apply Community law and to help the Commission ensure its overall effectiveness and resolve problems.[136]

In certain fields, the arrangements for mutual assistance are governed by detailed procedures managed by committees. This is the case, for example, in foodstuffs, pharmaceutical and veterinary fields.[137]

However, there are problems that can affect only a group of countries. Therefore, in principle, it could be possible to have a partnership between only two or more countries, it being enough for the others to be informed. In fact, in the working group on the application of Articles 85 and 86 EC Treaty by national authorities, it was pointed out that multilateral partnership, i.e. within committees, can be more complex and increase bureaucracy. Therefore, sometimes bilateral contacts, i.e. between one Member State and the Commission, may be preferable, with the possibility of the Commission acting in an interlocutory role and informing the other countries concerned.[138] Another example of this kind of partnership is the "package" meetings between the Commission and national administrations, which do not take place with all Member States but only with those specifically selected by the Commission, or those that expressly ask for it.

6.2.2. Partnership between Member States with and without the participation of the Commission.

Sometimes cooperation between Member States is allowed and sometimes encouraged. In most of the cases where the cooperation between Member States is allowed, the Commission also participates. As an example, we can cite the Council Regulation 1468/81 (EEC) on "mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs or agricultural matters".[139] This cooperation between national authorities does not cover, however, the obligation of providing documents obtained under powers exercised at the request of the judicial authority, unless the latter gives its consent (Article 3), or where to grant assistance would be likely to prejudice public policy or other fundamental interests of the State (cf. Article 17). The role of the Commission in this first Regulation was limited to that of collecting information and coordinating the national agencies involved in order to assure that the whole system works. Later on, Council Regulation (EEC) 945/87 amended Regulation 1468/81 in order to increase the powers of the Commission.[140] The Commission's powers were increased mainly in the case of the illegal operation of particular interests at Community level, and in the case of investigative missions in third countries. The Commission can also set up an information system for cases of fraud, acting as an intermediary for other Member States. An interesting point is that Member States are legitimated in this area to determine which operations are of "particular interest at Community level" (cf. Article 14a).[141]

However, the possibility of a partnership between Member States without the participation of the Commission may also, in principle, take place. In fact, according to the case-law of the ECJ there is an implicit obligation for the Member States to mutually assist each other in order to facilitate the application of EC law.[142] Thus, the ECJ has supported and encouraged the cooperation between authorities of different Member States to simplify frontier checks.[143]

In fact, even in 1976 the Council adopted a Directive on mutual assistance for the recovery of claims resulting from an operation that was part of the system of financing the EAGGF and of agricultural levies and customs duties.[144] The fact that it used a directive shows the decentralized approach followed in this area. Indeed, the role of the Commission was reduced to that of implementing regulator of the necessary measures under the surveillance of the Committee of Recovery. However, the system established in this Directive was modified by Council Regulation 1468/81 which strengthened the participation of the Commission.[145]

Furthermore, the procedure for mutual assistance was also developed in the fiscal area. Thus, in 1977 the Council issued a Directive concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation.[146] This cooperation was reduced to an exchange of information between national authorities, acting as liaison authorities, without granting the Commission any power. This system of cooperation was later improved: see Council Regulation (EEC) 218/92 on administrative co-operation in the field of indirect taxation (VAT).[147] However, in spite of the change in legal form from directive to regulation, the Commission's role has also been reduced to that of implementing regulator under the strict surveillance of the Standing Committee on Administrative Cooperation in the field of Indirect Taxation.

One area where some Commission officials interviewed accepted that cooperation between Member States has to be encouraged is the fight against fraud in the use of EC funds. Here, it is easy for such a fraud to affect operations involving more than one country or even some regions belonging to different countries. In spite of some practical problems such as the knowledge of different languages, there is room for improving cooperation. In fact, the Treaty of Maastricht introduced a new Article 209a in the EC Treaty that states in its second paragraph:

"...[M]ember States shall coordinate their action aimed at protecting the financial interests of the Community against fraud. To this end they shall organize, with the help of the Commission, close and regular cooperation between the competent departments of their administrations". [148]

Although the kind of help that the Commission has to provide is not specified, the Commission has put forward the idea of setting up an Advisory Committee for the Coordination of Fraud Prevention. This possibility would reinforce the role of the Commission.[149] However, the main act concerning cooperation of Member States in the area of fraud has been adopted as an Agreement between Member States within the Council under the Article K.3(2)(c) of the Title VI of the Maastricht Treaty (third pillar).[150]

Finally, the Council has developed some supporting and accompanying measures that are planned to improve the partnership between Member States. Thus, there are specific programmes of exchange between enforcement officials (Matthaeus programme for customs and tax officials, and the veterinary exchange programme). Furthermore, the so-called karolous programme is an action for the exchange of national officials between Member States' administrations who are engaged in the enforcement of Community legislation required to build the Single Market, and also exchanges of staff between the Commission and national departments responsible for applying Community law.[151]

However, in spite of these initiatives supported by the Commission, the latter is usually reluctant to launch any process of partnership where it cannot be involved.[152] This discussion will be postponed until we have dealt with networks.

6.2.3. Networks to supervise and enforce EC law.

We can speak of networks when partnership takes place through a permanent framework for administrative cooperation based on groups of contact points between the Member States and the Commission. The Commission has recently fixed three elements necessary to set up a framework for administrative cooperation:[153] a rule (the requirement of mutual assistance), a tool (a network of clearly identified correspondents) and two principles (proportionality and confidentiality). Therefore, the Commission clearly shows that the creation of networks should be authorized by Community legislation. In fact, there are already some examples of networks, some of them very modest, which are starting to be developed by Community legislation.

For example, in the Directives on public procurement, firearms, television and recognition of diplomas, the control authorities in the Member states have to be identified and have the obligation to report on the application of these directives to enable the Commission to compare the different national measures and assess the effectiveness of the said Directives. In the field of foodstuffs, monitoring departments in the Member States must also be identified and notified, and they have specific obligations to cooperate with each other in supervisory functions.[154] Furthermore, Council Regulation (EEC) No. 2048/89 lays down general rules on controls in the wine sector where a liaison authority is to be created for each Member State, and some rules concerning assistance and intervention among Member States are established (cf. Articles 8 to 10). It is also possible for the Commission to convene a meeting with the liaison authorities of several Member States in order to coordinate a control activity which concerns them (cf. Article 11).[155]

The Council Directive on general product safety has confirmed the trend to affirm the participation of the Commission.[156] This Directive states that Member States shall establish specific authorities with the necessary powers to apply it; the Commission shall pass that information to other Member States (cf. Article 5). However, direct contacts between those authorities are not necessarily very intense. In fact, under this general Directive, the exchanges of information on measures adopted by a Member State concerning a product thought to be a serious risk are forwarded through the Commission, even in a case of emergency. In the same area, the importance of respecting confidentiality should be pointed out. In this sense, it is usually required that the information contained in the notification shall be treated as confidential if it is likely to harm the reputation of a product or a series of products.[157] However, the notifying State is not likely to be interested in keeping this confidentiality because the manufacturing company responsible for the "dangerous" products is in another Member State; otherwise, the publicity of the measures taken against a product that "in principle" could provoke risks to health and safety, will affect the image of similar products coming from the same country. This possibility has produced the reinforcement of the Commission's role.

Furthermore, although the network schemes were devised for harmonized areas, the Commission has recognized their possible extension to non-harmonized areas based on the fact that many of the ECJ's more advanced rulings have been made in the context of matters not subject to harmonization.[158]

However, those models do not always work properly. In fact, there has been some discussion about the possibility of applying the network model to the Community at all. On the one hand, it has been argued that it is not suitable to be applied in the Community because it is insufficiently sensitive to EC fluidity and institutional complexity and fails to recognize the importance of EC institutions.[159] This approach has been refuted by saying that, although the network model requires further testing at EC level, it remains probably the most analytically powerful approach on offer.[160]

6.2.4. Legal problems of networks and partnership. Is the participation of the Commission essential?

Networks and partnership can be considered as the consequence of a failure of traditional legal remedies to combat non-compliance in a multi-State system. However, they can also be seen as complementary, if networks and partnership aim at covering the inadequacies of traditional legal remedies. In other words, they may be considered as complementary means to achieve the same result: the correct application of Community law.

In any case, the fact that they are not traditional legal remedies does not necessarily mean that they are without legal consequences. For example, one of the consequences of partnership, as defined in British law, is that "once the relation of partners is established between one who actively carries on a business and another who passively participates in the profits, the latter will become equally liable with the former for the debts and liabilities of the firm".[161] A more concrete concern is the possibility that individuals and legal persons may be without legal protection against the decisions taken through these procedures. In so far as these techniques are put into practice on a voluntary basis by Member States, there would be no risk for individuals because they could always challenge national decisions. Therefore, if there is a decision that affects third parties, it should be clear who is responsible for that decision, even if it has been adopted informally.

Furthermore, partnerships and networks need to be clearly specified to become reliable building blocks. If they require a legal framework in order to function, it should be of a general nature. In fact, one of the perverse effects of developing legislation sector by sector is that this creates unnecessary confusion for those who are not insiders to the system. We can find one example of this situation in the present system of networks developed on the handling of urgent situations. While in the veterinary sector, for example, the procedure is well framed, incorporating decision-making powers at a Community level, in other sectors the procedures appear to be very provisional.[162]

Moreover, within the Community framework, one can wonder whether partnership and networks imply a modification of the institutional model as laid down in the Treaties. In fact, networks may affect the powers of Member States and the Commission in enforcing Community legislation. The Commission itself has recognized that although "in principle" administrative cooperation does not affect these powers, in certain cases it may require decision-making at a Community level.[163] In fact, another legal problem of networks is that the methods of conflict resolution are based on the norm of reciprocity and that sanctions are typically normative rather than legal.[164] Besides, it has been pointed out that the Commission is hesitant about building networks and developing intergovernmental capacities because it has no legal authority or power to do so.[165]

However, the most controversial issue has been if the participation of the Commission has to be considered legally binding. In fact, some Commission officials interviewed manifested that when a network is set-up between Member States without the intervention of the Commission, that form of organization may be against EC law for several reasons. Firstly, because this possibility may affect the powers that the Treaty grants the Commission concerning the supervision and enforcement of EC law. Secondly, the negotiation between two national authorities attempting to solve a breach of EC law could imply a lack of transparency, an interpretation of EC law incompatible with the ECJ's case-law, or constitute a "règlement à l'amiable" that would not settle the real problems.[166] However, they considered cooperation between some or all Member States and the Commission an excellent idea.

Furthermore, it has been said that whenever Member States attempt to solve the problems of how to control the application of Community law on a bi- or multilateral basis,[167] the outputs would rest only on political agreement without any legal basis, and they would be in conflict with the fundamental philosophy of the Community.[168]

In fact, the non-participation of the Commission may affect the credibility of the system since national correspondents may tend to be harsher on problems due to foreign importers than those caused by national companies. This possibility has been admitted by the Commission regarding the procedure for handling urgent situations concerning foodstuffs.[169] Moreover, when a rapid response procedure was created to deal with the appearance in one Member State of products or services which did not conform to Community legislation or which were potentially dangerous and originating in another Member State; such a system required the creation in December 1992 of a "crisis unit" where Member States and Commission could meet.[170] In sum, one can say, as was also shown in the previous sections, that the trend is towards assuring the participation of the Commission.

Nevertheless, although the Commission cannot, through networks and partnership, surrender its powers into the hands of Member States, its participation can vary from an acting and binding power to a more flexible participation. The latter could be made possible by delimiting the objective of a partnership and network between Member States in such a way that the essential powers of the Commission are not affected. In these cases, the participation of the Commission could be made dependent on a request made by a party considered to be negatively affected by an agreement or a common action between some Member States. In fact, sometimes this flexible participation could be more efficient and would be coherent with the limited capacity of the Commission.

In sum, a process of encouraging greater cooperation between Member States through networks and partnership can be made compatible with legal and institutional requirements. In fact, that process is apparently compatible with maintaining an important role for the Commission. To build up a network of national officials who can offer quick explanations and respond promptly in cases of infringement of EC law is compatible with assuring the presence of the Commission as primus inter pares, but acting in a flexible way. Finally, the participation of the Commission, as we will see in the next section, can be a condition to assure mutual trust between the different Member States.

6.3. Complexity and Lack of trust as problems for partnership and networks.

As it has been pointed out, the total number of possible combinations of transactions and negotiations that can take place among 15 players or actors (i.e. Member States), acting together within the same framework, is 105.[171] However, the participation of the Commission may simplify the relations among national agencies. Thus, a reason in favour of such a participation in networks is that it can help to reduce complexity.

Moreover, trust is a necessary condition of network maintenance and real partnership. In fact, the balance of powers between the Commission and national administrations is also related to who can appear as more trustful. Historically it has been a fact that the lack of trust towards a public institution has usually provoked the reduction of its powers.[172] Thus, it can be considered a basic mechanism for coping with system complexity and for sustaining cooperation in a world of self-interested partners.[173] In fact, one of the major problems to guarantee the credibility of the system is to maintain a high level of trust between national officials, because national correspondents could favour national interest over an impartial solution. Friendship and altruism become an integral part of these realtionships, since the parties of a network must agree to pursue their own interests at the expense of others. Trust also requires that the interaction among individuals is repeated and that the group is homogeneous.[174]

To assure mutual trust between Member States and between them and Community institutions is a real challenge for the application of EC rules. Majone has proposed concrete measures to restore mutual trust in the Community: greater political independence of both national agencies and the Commission; the creation of a network of those independent agencies, Commission included; the reduction of central legislation and more focus on the level of application; and, finally, help to national agencies to improve their capacities through Community funds.[175]

Most of those proposals are clearly plausible. However, the suggested independence of national agencies raises some practical problems concerning the supervision and enforcement of EC law that independent agencies do not solve. Firstly, the role of national governments in the Community is too important to be neglected. Indeed, they want to be present all through the decision-making process (the Comitology system is an example of that) and always attempt to resist any loss of power unless it is proved essential. In fact, the delegation to an autonomous body of wide-ranking law-making and enforcement powers is likely to be resented by the Member States as too intrusive, since it would alter the delicate balance of power which has presided over the growth of Community competences. A clear example is the recently constituted European Agencies. They are usually supervised by a Management Board made up of national representatives, reproducing an intergovernmental character incompatible with their presumed independence.[176] The European Central Bank (ECB) may be an exception since that Committee is formed by independent experts. However, this can be so because of the clear and accepted objective the ECB is serving: monetary stability. Moreover, central banks can escape from social pressure due to the fact that monetary stability is considered a technical and essential goal whether it is reached or not.[177]

Another possible example of independent agencies in the EC is the special relation between the ECJ and national courts under Article 177 EC Treaty. In fact, the ECJ has always held that it provides a framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Nevertheless, the independence of national courts and their special relation with the ECJ is based on a long tradition of judicial independence and on the fact that they serve the apparently neutral objective of interpreting and applying law in case of conflict.[178] However, most of the Community policies are not like those. Indeed, usually there is neither one clear objective nor only one means to obtain it, nor only one level of enforcement.

Secondly, one of the crucial problems of enforcement for regulatory agencies is that they lack a moral and political consensus about the ills they seek to control,[179] especially in the case of multi-purpose agencies. Furthermore, as in the cases of agricultural and fisheries policies, Community policies are addressed to clear-cut social groups politically organized to resist reforms that may prejudice their interests. Even if national agencies are independent, they are unlikely to escape that social pressure. They may even be captured by their clienteles.[180]

National administrations may be better prepared to face social pressure and surmount the obstacles that applying EC law can imply. In fact, independent agencies usually lack the political capacity to convince the national Parliament to adopt programmes that involve significant sums of money. For example, the implementation of programmes on the quality of water requires the investment of huge sums of money that only a political power can manage to have approved.

Thirdly, it is also easier for a national administration with political support to manage to convince the social sectors or local governments affected by a Community rule to comply with it, due to the fact that they can offer some compensation in other fields, or that they can negotiate other advantages in Brussels, or some future amendments to the concrete rules.

Fourthly, the problem of trust between national enforcers arises mainly when the interests to be protected conflict with relevant national, regional, or social interests. In those cases, to ask independent agencies to do the enforcement could even be counter-productive, since citizens could blame them as those who are responsible for the programmes.

In any case, where national interest clearly clashes with Community interest or with the interests of other Member States, cooperation between Member States may well tend to fail, in spite of the wording of binding rules, or the presumed independence of the enforcing agencies. Thus, according to some Commission officials interviewed, the cooperation between national control agencies as stated in several regulations on fishing policy has not really been implemented.[181] However, if the interests to be protected are common to all the actors, national agencies would not have serious problems to gain the trust of their partners in enforcing EC law. One example may be customs policy in external borders.[182] Another example may be when the objective is the fight against the fraudulent use of EC funds. In fact, there should not be any difference between fighting against fraud to EC funds or to national budget, since most EC money comes from national tax payers, although this is not always well-explained or understood. Nevertheless, in these cases, the agreement on the modalities of cooperation should be easier than when it is a question that is perceived differently in different countries.[183]

Nevertheless, as was noted in the previous section, the participation of the Commission in the network may help to increase trust. While for national administrations to enforce Community rules sometimes entails some competitive disadvantages for their industry, for the Commission, a weak enforcement would destroy its credibility in the eyes of other firms and national administrations.[184] Therefore, if national administrations do not trust each other more, the Commission will continue to strengthen its role as the only way to guarantee a reliable system.[185]

Moreover, distrust can be said to be a common element in the Community: the Council distrusts the Commission (cf. Comitology system), the Commission distrusts Member States (cf. private complaints under Article 169 procedure) and Member States distrust each other. However, the reasons behind these different types of distrust are different. For example, if the Council distrusts the Commission because the latter is too pro-Community, it has different consequences than if Member States distrust the Commission, because it lacks independence and is not performing its role objectively. At present, it is equally important for the Commission to balance the interests at stake carefully and to guarantee and assure its independence and efficiency.

Finally, one can obtain the impression that there are two different approaches represented within the Commission. Thus, whereas the Legal Service and the legal units in most of the Directorates-General (and also the ECJ) support a hierarchical relation with Member States for the sake of homogeneity, the other units (and some external advisors, cf. Sutherland Report), are more supportive of networks, being conscious of their advantages from the management point of view and maybe unaware of the consequences from a legal point of view.

[ ]120SCHEINMAN, Lawrence "Some Preliminary Notes on Bureaucratic Relationships in the European Economic Community", (1966) 20 International Organization 751. Other names used are i.e. "structural coupling" or "inter-organisational exchange", cited in SNYDER, Francis "The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques", (1993) 56 MLR 36.

[ ]121See e.g. JOERGES, Christian "European Economic Law, the Nation-State and the Maastricht Treaty" in DEHOUSSE, Renaud (ed.) Europe After Maastricht: An Ever Closer Union? (München: Law Books in Europe, 1994) p. 61.

[ ]122The draft Treaty on the Union from the Luxembourg Presidency can be found in LAURSEN, Finn & VANHOONACKER, Sophie (eds.) The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community (Maastricht: European Institute of Public Administration, 1992) pp. 358 et seq.

[ ]123According to Lowi, "the conversion of delegation from necessity to virtue also led to the spread of the practice to non-regulatory programs in the name of partnership, creative federalism, and the like."[LOWI, Theodore The End of Liberalism. Ideology, Policy, and the Crisis of Public Authority (New York: Norton, 1969) p. 145].

[ ]124vol. XI, Oxford-Clarendon Press, 1989.

[ ]125Le Grand Robert de la langue française, vol. 7, deuxième édition, 1985, Le Robert (ed), Paris.

[ ]126Petit Robert, (1991) p. 1365.

[ ]127Cf. METCALFE, Les "The European Commission as a Network Organization" in file p. 12.

[ ]128See e.g. Commission communication to the Council "Making the most of the Internal Market": Strategic Programme (COM(93) 632 final) and Commission communication on "The Development of Administrative cooperation in the Implementation and Enforcement of Community Legislation in the Internal Market" (COM(94) 29 final). This Communication was adopted as a consequence of the Council Resolution of 16 June 1994 (O.J. 1994 No. C179/1).

[ ]129Cf. BUXBAUM, Richard "Is 'Network' a Legal Concept?", (1993) 149/4 Journal of Institutional and Theoretical Economics 689-705. For a different point of view, see the interesting paper presented at the Conference Social Regulation Through European Committees (European University Institute, Florence, 9-10 December 1996) by K-H LADEUR "The Network as a Legal Concept in Analysis of European Standard-Setting".

[ ]130Cf. METCALFE, Les "The European Commission as a Network Organization" in file p. 3.

[ ]131See MAJONE, Giandomenico "Mutual trust, Credible Commitments and the Evolution of Rules for the Single Market" EUI Working Paper RSC No. 95/1 (European University Institute: Florence) p. 22.

[ ]132See POWELL, W. "Neither Market nor Hierarchy: Network Forms of Organization" (1990) 12 Research in Organizational Behaviour 303.

[ ]133Cf. METCALFE, Les, "Redesigning Europe" Paper presented to the Third Biennial International Conference of the European Community Studies Association, Washington DC, 27-29 May 1993.

[ ]134Cf. VAN WAARDEN, Frans "Dimensions and types of policy networks" (1992) 21 European Journal of Political Research 29-52, p. 31.

[ ]135O.J. 1988 L185/9.

[ ]136"The Internal Market after 1992: Meeting the Challenge" op. cit.

[ ]137Commission communication to the Council and the European Parliament on "Reinforcing the Effectiveness of the Internal Market" (COM(93) 256 final) p. 27.

[ ]138Cf. Internal document IV/0603/94 at para. 43. That working group was formed by national officials plus officials from Directorate General VI of the Commission.

[ ]139O.J. 1981, L144/1.

[ ]140O.J. 1987 L90/3.

[ ]141There is a new Commission's proposal (O.J. 1993, C262/8 and O.J. 1994 C80/12) replacing Reg. 1468/81 which is supposed to strengthen the cooperation between administrative authorities and their cooperation with the Commission, although since it is based on art 235, the requirement of unanimity may be a problem.

[ ]142Case 235/87 Matteucci v. Communauté Française of Belgium [1988] ECR 5589-5613, at paragraph 19, in p. 5611.

[ ]143Case 124/81 Commission v United Kingdom [1983] ECR 203-253, at para. 30, p. 239:

"where cooperation between the authorities of Member States makes it possible to facilitate and simplify frontier checks, the authorities responsible for health inspections must ascertain whether the substantiating documents issued within the framework of that cooperation enable the checks carried out upon importation to be simplified."

[ ]144Council Directive (EEC) 76/308 (O.J. 1976, L73/18).

[ ]145See previous section.

[ ]146Council Directive (EEC) 77/799 (O.J. 1977, No. L336/15). It was amended by enlarging its field of application to the value added tax by Council Directive (EEC) 79/1070 (O.J. 1979, No. L331/8).

[ ]147O.J. 1992, No. L24/1.

[ ]148Although this Article appears amended in the draft of the Treaty of Amsterdam, the quoted paragraph remains the same.

[ ]149European Commission Protecting the financial interests of the Community: The fight against fraud. 1993 Annual Report (Luxembourg: Office for Official Publications of the European Communities, 1994) p. 7.

[ ]150Act adopted on June 1995 by the Council. It relates to cooperation on criminal law matters, and its application is subordinated to the adoption of the necessary measures by Member States (art. 11). See also Council Regulation (EC, Euratom) No. 2988/95 relating to the protection of the financial interests of the European Communities (O.J. 1995 No. L312/1). However, the latter does not refer to cooperation between Member States.

[ ]151See Council Decision (EEC) 92/481 on the adoption of an action plan for the exchange between Member State administrations of national officials who are engaged in the implementation of Community legislation required to achieve the internal market (O.J. 1992, L286/65). It must be pointed out that the original proposal of the Commission for such a Decision expressly referred to officials engaged in the "enforcement" of Community legislation.... (O.J. 1991, No. C229/25). The term "enforcement" was changed, however, for "implementation" in the final version. See also the Economic and Social Committee on that proposal (O.J. 1992, No. C98/1)

[ ]152In fact, the Commission has recently insisted on the need of playing a leading role in the practical organization of cooperation between the competent administrations of the Member States and the Commission, cf. Report from the Commission to the Council and the European Parliament on the Single Market in 1995 (reference in internet:

[ ]153Commission communication to the Council and the European Parliament on "The Development of Administrative cooperation in the Implementation and Enforcement of Community Legislation in the Internal Market" (COM(94) 29 final) of 16/02/94 p. 3.

[ ]154Cf. Article 6 of Council Directive 93/99/EEC on additional measures concerning the official monitoring of foodstuffs (O.J. 1993, No. L290/14). See also Commission communication to the Council and the Parliament on "Reinforcing the Effectiveness of the Internal Market" (COM(93) 256 final) pp. 16 and 17.

[ ]155O.J. 1989, No. L202/32. See also Article 6 of Council Directive 93/99/EEC on the subject of additional measures concerning the official control of foodstuffs (O.J. 1993, No. L290/14) where it is established that the national liaison bodies coordinate communication and the transmission and reception of requests for assistance. See also in previous section regulations cited on customs and agricultural policy.

[ ]156Council Directive 92/59/EEC on general product safety (O.J. 1992, No. L228/24).

[ ]157Cf. Council Directive 92/59 cit.: Article 12 and paragraph 6 of the Appendix.

[ ]158Commission communication on "The Development of Administrative cooperation..." cit., paragraph 21, p. 7.

[ ]159Cf. KASSIM, H. "Policy Networks, Networks and European Union Policy Making: A Sceptical View" (1994) 17/4 West European Politics 15-27.

[ ]160PETERSON, John "Policy Networks and European Union Policy Making: a Reply to Kassim" (1995) 18/2 West European Politics 389-407.

[ ]161HARDY IVAMY, E.R., Underhill's Principles of the Law of Partnership (London: Butterworths, 1975) pp. 1-4.

[ ]162Cf.Commission communication to the Council, the European Parliament and the Economic and Social Committee "on the handling of urgent situations in the context of implementation of Community rules" (COM(93) 430 final) of 16/12/93.

[ ]163Commission communication on "The Development of Administrative cooperation in the Implementation and Enforcement of Community Legislation in the Internal Market" (COM(94) 29 final) of 16/02/94, in p. 6, note 6.

[ ]164Cf. POWELL, W. "Neither Market nor Hierarchy: Network Forms of Organization" (1990) 12 Research in Organizational Behaviour 300, 301.

[ ]165METCALFE, Les "The European Commission as a Network Organization" in file p. 7.

[ ]166They referred to an internal document of the Commission's Legal Service on the matter.

[ ]167Under the UK Presidency of the Council inter-ministerial rather than Community cooperation was promoted. Member States decided to set up a Community-wide network for better enforcement of EC environmental law. See Europe Environment, No. 398, 17 November 1992, p. 1/11 and MACRORY, Richard "The enforcement of Community Environmental laws: some critical issues" (1992) 29 CMLRev 348.

[ ]168RIJN, T.P.J.N. van "Administrative Application and Enforcement of Community Law: Internal Control by the Commission" in VERVAELE, J.A.E. (ed.) Administrative Law Application and Enforcement of Community Law in the Netherlands (Deventer: Kluwer, 1994) pp. 147.

[ ]169Commission communication to the Council, the European Parliament and the Economic and Social Committee "on the handling of urgent situations in the context of implementation of Community rules" (COM(93) 430 final) of 16/12/93, p.13.

[ ]170See "Communication from the Commission to the Council and the European Parliament: Follow-up to the Sutherland Report" (SEC(92)2277 final. Brussels, 2 December 1992).

[ ]171See, GRETSCHMANN, Klaus "Integración entre mercado y Estado: diez proposiciones", paper presented at the Conference: Horizontes estratégicos de la integración: opciones para el Siglo XXI, organized by the Training Center for Regional Integration, Montevideo, (12, 13 November 1996).

[ ]172Cf. the reduction of the powers of the Crown in England during the XIX century, and of the courts in France during the end of the XVIII century; see, e.g. CASSESE, Sabino "L'execuzione forzata" (1991) 2 Diritto processuale amministrativo 173-183.

[ ]173MAJONE, Giandomenico "Mutual trust, Credible Commitments and the Evolution of Rules for the Single Market" EUI Working Paper RSC No. 95/1 (European University Institute: Florence) p. 1.

[ ]174Cf. POWELL, W. "Neither Market nor Hierarchy: Network Forms of Organization" cit., pp. 303, 304, 326.

[ ]175Cf. MAJONE, Giandomenico "Mutual trust, Credible Commitments and the Evolution of Rules for the Single Market" op. cit. pp. 18-29.

[ ]176Cf. DELLA CANANEA, "L'Organizzazione amministrativa della Comunità europea" (1993) 5/6 Riv. Ital. Dir. Pubbl. Communitario 1123. See e.g. Article 56 of Council Regulation (EEC) No. 2309/93 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medical Products (O.J. 1993 No. L214/1).

[ ]177"The national central banks are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB. The Governing Council shall take the necessary steps to ensure compliance with the guidelines and instructions of the ECB, and shall require that any necessary information be given to it" [Protocol (No 3) annexed to the TEU on the Statute of the ESCB and the ECB, Article 14.3]. Article 180 (d) EC Treaty foresees the possibility for the ECB to initiate the Article 169 procedure against national central banks. In addition, the ECB is entitled, within certain limits, to impose fines or periodic penalty payments on undertakings for failing to comply with obligations under its regulations and decisions [see Article 108 a (3)]. By these provisions, the ECB is assimilated functionally into the category of major Community institutions", although it is not, however, included in the category of Community institutions under Article 4 EC Treaty. See also SNYDER, Francis "EMU -Metaphor for European Union? Institutions, Rules and Types of Regulation" in DEHOUSE, Renaud (ed.) Europe after Maastricht: an ever closer Union? (München, Beck, 1994), pp. 92-93.

[ ]178See, e.g. C-127/92, Enderby v. Secretary of State for Health [1993] ECR I-5535 at I-5577, para. 10, p. 5571.

[ ]179In this sense, HAWKINS, Keith Environment and Enforcement: Regulation and the Social Definition of Pollution (Oxford: Clarendon Press, 1984) p. 1.

[ ]180For this typical problem of agencies: see LOWI, Theodore The End of Liberalism. Ideology, Policy, and the Crisis of Public Authority (New York: Norton, 1969) p. 153.

[ ]181See e.g. Council Regulation (EEC) No 3483/88 amending Regulation (EEC) No. 2241/87 establishing certain control measures for fishing activities (O.J. 1988, L306/2) and Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy (O.J. 1993, No. L261/1).

[ ]182In fact, recently the Council has approved the Customs Programme 2000. (Ref.: Rapid, IP/95/1291). See also the various regulations adopted in that field cited supra. For an analysis of the management problems in European customs, see KEARNEY, Declan "The Management of European Customs" (1991) 39/3 Administration 265-280.

[ ]183See e.g. Council Regulation 1468/81 cit.

[ ]184See DEHOUSSE, Renaud and MAJONE, Giandomenico "The Dynamics of European Integration: the Role of Supranational Institutions" op. cit. p. 26.

[ ]185See Council Regulation 945/87 that amended Council Regulation 1468/81 with the main objective of reinforcing the powers of the Commission, both cited supra.

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