5. The policy on centralised enforcement: technocratic legitimacy, special relationships and the turn from good governance
| Pages | 167-219 |
| Author | Melanie Smith |
5 The policy on centralised
enforcement: technocratic
legitimacy, special relationships
and the turn from good
governance
The Commission has produced two policy documents on Article 226.
These documents set out the Commission’s approach to enforcement under
Article 226 – how it views the mechanism and how it will operate it. The
first Communication1 was produced in 2002 as a response to the good
governance agenda and was foreshadowed in the Commission’s White
Paper. The second Communication in 2007,2 ostensibly a response to
enlargement, might be seen as a departure from its predecessor, although
the Commission presents it as a continuation of its good governance
approach.
In the 2002 Communication, the Commission committed itself to a better
explanation of policies so that the citizens might gain an improved
understanding of the workings of the Union. This traditionally has not been
a strategy embraced by the Commission in relation to Article 226, where
even basic policy statements or guidelines in respect of the operation of the
enforcement mechanism have been avoided. The problem that the
Commission has encountered is that its own definition of good governance
(openness, participation, accountability, effectiveness and coherence) does
not fit comfortably with the way in which it historically operated Article
226. Explaining the enforcement policy in good governance language
therefore ought to suggest a palpable change in the way in which the
Commission discharges its enforcement responsibilities. This should alter
the enforcement mechanism in two ways. First, the Commission’s policy
ought to recognise the role of other actors in the enforcement process.
Second, the explanation of Article 226 in good governance language should
include the recognition of the various functions performed by Article 226,
rather than being solely focused on achieving enforcement through
secretive negotiation. At the very least, the production of a policy statement
ought to provide greater insight, in other words openness and clarity, into
the executive choices of the Commission in carrying out its enforcement
responsibilities. The 2007 Communication is meant to fulfil the same
function by providing a clear explanation of its policy on enforcement.
This chapter will be structured as follows. The first section analyses the
Commission’s 2002 Communication on its policy on enforcement under
Article 226, and attempts to establish to what extent it is possible to
compare the Commission’s policy to its actual practice. The next section
analyses how and to what extent this policy reflects a change in approach
by the Commission which is consonant with the Commission’s vision of
good governance. The third section analyses the 2007 Communication, and
questions to what extent the Commission has sought to alter its approach
from 2002, and for what reasons. Finally, the chapter will conclude with
some comments upon how the Commission might still improve its policy
on the use of Article 226 in a way that complements its commitment to
good governance as the pathway to legitimacy in the European Union (EU).
THE TWO- TIER APPR OACH TO
ENF ORCEM ENT: P REVE NTION AND
COR RECTI ON
The Commission’s first Communication entitled ‘Better Monitoring of
the Application of Community Law’3 elaborates the Commission’s
approach to Article 226 against the wider backdrop of improving
governance in the EU. The 2002 Communication describes the function of
enforcement in Article 226 as being ‘essential to the interests of European
citizens’4 and so identifies the need for this policy to be better understood
by the public. Both the administrative procedure and the prosecution of
Member States before the European Court of Justice (ECJ) are considered
as non-exclusive parts of the same objective of enforcing Community law.
The Commission notes that due to lack of detailed guidance in the Treaty,
it is the responsibility of the Commission to ‘continually adapt … to carry
out its mission effectively, and where necessary, make innovations designed
to improve the application of Community law’.5 There is an
acknowledgment that the Commission controls the process and shapes the
role of Article 226. It is clear that the Commission realises that it must
adapt the operation of the enforcement mechanism in a changing
Community environment. However, it is the enlargement of the Community
that is identified as the key factor in the need to innovate further and
redesign the process of enforcement in order for it to remain effective,
rather than a need to alter practices in light of a commitment to good
governance.
The enforcement policy is split into several stages in the Communication,
but for the purpose of this analysis it can be broadly divided into proposals
aimed at prevention of infringements and proposals aimed at correction of
infringements.
Prevention of infringements
The Commission has developed a number of strategies aimed at
preventing an infringement from occurring in order to decrease the
likelihood of having to engage Article 226. This strategy is considered as
necessary and inevitable since the Commission does not have enough
resources to pursue every infringement through the Article 226 mechanism.
In the White Paper on Governance (WPG) and several subsequent detailed
Communications,6 the Commission has identified the need for both clearer
legislation (in terms of better drafting) and the choice of the right
instrument for the policy proposal – a key feature of the ‘better regulation’
section of the WPG was the emphasis on ‘less is more’. Such initiatives will
prevent unintended infringements, which might occur through a simple
misunderstanding of the language of the legislation. To further aid
prevention of these types of infringements, the Commission also proposed
greater use of interpretative Communications, produced by Commission
departments, to explain in clear terms what outcomes are expected from
transposal of a directive.7 The increased use of specialised committees to
help oversee drafting and implementation of particular pieces of legislation
(like those relating to workers or equality) has also been part of the
Commission’s strategy for improving the quality of the legislation,
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