1. Introduction
| Pages | 18-42 |
| Author | Melanie Smith |
1 Introduction
The aim of this book is to bring greater understanding of the centralised
enforcement mechanism within the EC Treaty contained within Article 226
EC.1 In doing so, it aims to change the entrenched view of Article 226 as a
single function provision within the constitutional architecture of the
European Union (EU), to a vision that encapsulates the truly multi-faceted
nature of the centralised enforcement provision. The central themes
underpinning the discussion of Article 226 are those of legitimacy,
transparency, accountability, good governance and good administration. The
examination of the policies and management of the enforcement provision
is undertaken with reference to a model of administrative legitimacy. This
provides the intellectual framework, or lens, through which the central
themes are tackled. Enforcement of Member States’ legal obligations under
the Treaty is central to the success of the EU. Although the centralised
enforcement provisions are by no means the only way by which legal
obligations are enforced, they provide the essential top-down mechanism
for ensuring that political agreements are transformed into a legal reality.
The benefits that citizens derive from adherence to these legal obligations
are central to the claims made by EU elites about the legitimacy of the
European project as a whole. Domestic politicians and the European
institutions continue to try to popularise the EU on the basis that the EU
delivers tangible benefits to its citizens. This output legitimacy is now
intertwined with an attempt to reform the EU into an organisation that not
only delivers tangible benefits to its citizens, but does so using legitimate
policy processes that embrace fundamental democratic values: adherence to
the rule of law, transparency, participation, accountability and good
administration.
It is important to stress that the enforcement articles in the Treaty do not
exist in a legal and political vacuum, but are shaped by the complex process
of European integration.2 The process of European integration has been one
of constant change and renewal, beginning with sectoral economic reform
projects, and stretching through to the period of constitutional reflection to
the most recent attempt at reform in the shape of the Lisbon Treaty.3 Since
the 1990s in particular, the process of intergovernmental conference (IGC)
followed by Treaty revision has been a constant stimulus for discussion and
debate about the nature of the European project.4 There has not been a
simple progression from an international collaboration of Member States to
a supranational entity and the so-called variable geometry has to some
extent always been present.5 The state of integration of different actors,
institutions and policy sectors has been, and continues to be, variable.6
The Maastricht Treaty was an important turning point in achieving
greater political co-operation.7 From this point onwards, the rate at which
renewal and debate about the nature of the European project has greatly
increased. The prospect of enlargement to include states from Central and
Eastern Europe focused attention on issues relating to institutional reform,
initially on a practical level of whether the existing institutions could cope
with the increased workload enlargement would bring.8 The Treaty of Nice
and in particular the Declaration on the future of the Union9 called for a
deeper and wider debate about the future of the EU, leading to the Laeken
Declaration.10
This Declaration set out the political agenda and the normative vision of
the EU’s Member States for a more democratic Europe. The Declaration
focused upon some general key themes, such as bringing the institutions
closer to the citizens by making them more open and efficient, which in turn
would lead to an increased democratic scrutiny of the EU’s actions.
Through the simplification of instruments, clearer roles for each institution
and greater transparency in its operation, the Laeken Declaration pinpointed
the way in which the democratic credentials of the EU could be greatly
improved. The Declaration culminated in the convening of the Convention
on the Future of Europe. In 2004, the Treaty establishing a Constitution for
Europe11 was signed by the Member States, but it failed after negative
results in referenda in France and the Netherlands. This prompted another
tumultuous period of reflection about the nature of the EU project which
resulted in the production of the Lisbon Treaty.
When examining the role of the enforcement mechanism, it is crucial to
evaluate it in the light of the political context of the EU, especially those
normative initiatives bound up in the drive for greater constitutionalisation
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