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Enforcement Actions under EU Law: The New Member States. EIPA Working Papers 2007
Abstract
Through the infringement procedure, provided for by Article 226 of the Treaty establishing the European Community (TEC), the Commission can stimulate Member States to comply effectively with their obligations under Community law. In cases of non-compliance, the Commission may bring Member States before the Court of Justice of the EC (ECJ). Indeed, the Commission may use this possibility because it is the "guardian of the Treaty" and has to ensure the proper application of Community law, in line with Article 211 TEC.
The White Paper on European Governance published by the Commission in 2001 emphasises that the primary responsibility for applying Community law lies with national administrations and courts in the Member States. Therefore, the primary objective of enforcement actions against Member States is to monitor their compliance and to respond to cases of non-compliance. However, through adequate exercise of its discretion and improved cooperation with Member States, the Commission aims to encourage them to comply voluntarily with Community law as quickly as possible. Furthermore, under the current Commission's strategic objectives for the period 2005-2009, prompt and adequate transposition and vigorous pursuit of infringements are considered critical to the credibility of European legislation and the effectiveness of policies.
The infringement procedure is of crucial importance to the new Member States and of high relevance to the candidate countries that have applied for accession to the EU. On the one hand, they have to adopt the whole acquis upon accession with only few transitional periods granted in a limited number of areas. New Member States have already submitted a large number of transposition notifications to the Commission. On the other hand and despite their huge efforts, new Member States experience considerable difficulties in implementing directives and other EC legislative instruments. The process of implementation is a challenging stumbling block for all new Member States.
This paper will focus on the recent and main trends in the application of enforcement actions against new Member States, not only taking an empirical angle (infringements by Member States and by sectors) but also involving analytical reasoning. This analysis serves to present the fundamentals and relevance of the infringement procedure in the framework of the enlarged European Union (the object of the first part of this paper) where administrations of the new Member States will have to adopt this new way of thinking and of implementing know-how (addressed in the second part) while acquiring a better understanding of the principal characteristics of the EC/EU's legal system (direct effect, supremacy, indirect effect, state liability) and of the EC's general principles of law. Therefore, the second part of the paper will also focus on justifications deemed acceptable by the ECJ and others that are considered inadmissible.
New Member States have to adjust to the requirements of the acquis (possibilities of opting out are not included in the Accession Treaties) and this obligation applies to all independent state institutions (including the judiciary where reforms represent a prerequisite for accession by some candidate countries). Efficient further implementation of the acquis and adequate understanding of the infringement procedure will facilitate new Member States' (and candidate countries') integration in the EU and, eventually, make their accession a success.
... In the event of a failure to fulfil the acquis in some respect, the European Commission initially holds discussions with the member state concerned; if that does not resolve the matter, there is then a referral to the Court of Justice of the EU for a ruling. Cases are closed when the member state changes its domestic legislation as required, but procedures are quite slow and many judgements still await action by the relevant member state (see Borissova, 2007). For instance, in the field of taxation and customs union, in the period 2014-2016, there were six outstanding cases against Greece, none settled; France had five cases, of which two were settled; Hungary had four cases, with three settled (Hungary amended its domestic legislation) (See EC, 2016). ...
From modest beginnings in 1957, the EU has since evolved both by deepening – adding new tasks and responsibilities to the Commission’s remit – and by widening – adding new members in a series of accessions, to arrive at the present 28 member states. A new complication was the UK’s referendum in June 2016 that opted for Brexit. The EU’s evolution by enlargement is examined, followed by an outline of the major EU institutions and the links between them. This includes EU engagement with the wider world via trade deals and aid. The suitability of the EU’s acquis for applicant states and countries in the EU neighbourhood is reviewed, followed by an assessment of the overall EU ‘Model’. Having appeared to function well and deliver significant benefits to the member states, the ‘Model’ has performed far less well since the 2007–2009 financial crisis, revealing major weaknesses in the Union’s capabilities. The EU needs new, more flexible economic models, as well as new modes of engagement, both internally and with its various partners. In addition, the EU’s political model needs reform, both to deal with the democratic deficit and to provide for more effective decision-making.
The concept of quality of decision-making relates to the core function of courts: to give a legitimate and justified judgment according to an accepted legal method. Thus, while other types of social or political decisions might be largely judged by the acceptability of the eventual outcome (though political decisions often depend on a particular institutional procedure being followed), courts are expected to adhere to a distinctly legal method. The idea of a distinctly legal method can be understood in different aspects: normative or institutional legitimacy; epistemic quality; argumentative, dialectical or deliberative quality; consistency or coherence; moral and consequentialist quality; and jurisdictional quality. Following a discussion of each of these aspects of the Court of Justice’s legal reasoning, this chapter looks at the impact of the Lisbon Treaty and Fiscal Compact; recent scholarship; and, finally, the broader political context in which the Court operates. The chapter concludes that characterising the quality of the Court depends upon the conception of quality employed and that process-oriented and consequentialist justification can be contrasted in the institutional context of courts. Consequentialist reasoning is clearly less dependent upon legal sources and the discipline of legal method, thus raising a question mark over the legitimacy of effet utile arguments widely deployed, as they sometimes are, in the legal reasoning of the Court of Justice.
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