4. Political enforcement, neutral guardianship and legal uniformity
| Pages | 121-166 |
| Author | Melanie Smith |
4 Political enforcement, neutral
guardianship and legal
uniformity
The European Commission1 is the dominant actor within Article 226. It
occupies a unique position in relation to ensuring the compliance of
Member States with their obligations under the Treaty, by acting as
investigator, primary judge of the Member States’ conduct and ultimate
arbiter of what conduct will constitute compliance with the Treaty.2 The
Commission’s stated view of the enforcement mechanism is that: ‘The main
aim of an infringement action is to oblige the offending Member State to
remedy its breach of Community law.’3 This characterisation of Article 226
suggests that the Commission views Article 226, in the main, as a
compliance mechanism, and as such the Commission’s role under Article
226 is largely that of the enforcer of compliance. This is a rather simplistic
explanation of the Commission’s position. If the main aim of the
infringement action is to oblige the Member State to remedy its breach of
Community law, this implies that there might be other aims or roles that the
enforcement action might perform; nonetheless the Commission continues
to discuss Article 226 in terms of a singular enforcement function. It must
necessarily be true that, first and foremost, Article 226 remains an executive
policy choice – the Commission chooses its strategy on enforcement and is
in complete control of the design, management and operation of Article
226. Only then can the Commission carry out its role of enforcer (or in the
Commission’s terms, guardian of the Treaties).4
The factors that influence and drive the behaviour of the Commission in
relation to the practice and policy of Article 226 ultimately shape the role of
centralised enforcement within the constitutional architecture of the
European Union (EU). It is important, therefore, to consider how the
Commission actually manages the enforcement action on a day-to-day
basis, and to consider to what extent the Commission has tried to improve
or alter Article 226.5 Does the Commission’s practice complement the
ideals set forth in the White Paper on Governance (WPG) in terms of a
coherent and effective approach to enforcement under Article 226? To what
extent does the Commission’s simplistic characterisation of its own role
underpin and perpetuate the narrow definition of the role or functions of
Article 226, and thus undermine the conception of Article 226 as a
mechanism that is well matched to the aspirations of good governance and
legitimacy in the EU? To what extent has enlargement forced a reappraisal
of the practice of managing infringements?
The chapter is structured as follows. The first section will provide a brief
overview of the organisation and make-up of the Commission, and explain
the Commission’s central role in Article 226, as defined by the Treaty
language and the case law principles. The second section will then consider
in detail the recent evolution of the Commission’s approach to the operation
of Article 226. It will discuss the reforms implemented in relation to the
internal management of infringement investigations and the attempts to
amend the Treaty provision. The third section then identifies the different
roles of the Commission within Article 226, and explores how these
discrete functionalities may conflict. Finally, I will conclude with some
observations regarding the Commission’s conflicting roles and divergent
priorities under the enforcement mechanism, and question how this
approach to enforcement ultimately affects the role of Article 226.
THE EURO PEAN COMM ISSI ON: A N
INT RODUC TION
The organisation and characteristics of the Commission is a field of study
in itself.6 The Commission is a notoriously labyrinthine organisation and
practically impossible to navigate by outsiders – however, for the purposes
of this chapter the organisation of the Commission can be discussed in very
broad terms. The Commission may be broken down into two distinct parts:
the individual Commissioners and the Directorates General (DGs). The
individual Commissioners are the political head of their respective
departments and provide the initiative in policy direction and political
leadership, or ‘face’, of a policy sector. The DGs are the administrative
body of the Commission which carry out the broad spectrum of tasks
assigned to the Commission as a whole.
The Commissioners periodically sit as a ‘College of Commissioners’ in
order to take certain decisions, including taking decisions in relation to
infringement cases. Individual Commissioners must act independently in
their duties as a Commissioner and only in the general interest of the
Community. In this way, the Commission is seen as the ‘neutral’ heart of
the European project untainted by national politics and allegiance. This core
element of the Commission is then supported by the ‘service’ DGs which
comprise horizontal service staff such as the legal service, the translation
service and the Secretariat General.7 The current Commission is made up of
27 individual Commissioners, each of whom have been nominated by one
Member State and appointed by the Commission President. The President
of the Commission is proposed by the European Council, and must be
formally approved by the European Parliament by a majority vote. The
Commission President, who provides the political leadership for the
Commission as a whole, then determines which Commissioner receives
which portfolio, or policy field/department (after much political lobbying
by the Member States). Each Commissioner has his or her own personal
cabinet, or staff, and heads up a Directorate General.
The formal tasks of the Commission are laid down in Article 211 EC and
can be broken down into several distinct responsibilities:8 to ensure
compliance with, and application of, the Treaties and subsequent laws; to
promote the general interest of the Union; to have its own power of decision
and participate in legislating; to exercise rule-making powers as conferred
by the Treaties; and to execute the budget and manage programmes. Cini
characterises the Commission as having six distinct roles within the EU:9
the right to initiate policy and legislation; the ability to execute detailed
legislation; the duty to ensure that Member States fulfil their obligations;
the power to provide the external representation of the Community; the
capacity to act as a mediator between different factions (Member States and
interest groups); and the role of acting as the ‘conscience’ of Europe or
promoter of the ‘general interest’. Various characterisations of the
Commission have been offered throughout the literature. These range from
descriptions which characterise the Commission acting principally as a
technocracy or regulatory body to the Community’s executive authority, a
politicised bureaucracy or network organisation.10 Cini describes the
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting