7. Centralised enforcement, legitimacy and good governance – conclusions
| Pages | 271-299 |
| Author | Melanie Smith |
7 Centralised enforcement,
legitimacy and good governance
– conclusions
Enforcement of legal obligations plays a vital role in the European Union
(EU). The uniformity of the legal system, adherence to Treaty principles
and values, and delivery of tangible benefits to citizens are crucial elements
that underpin the success of the sui generis European project. Although
centralised enforcement is by no means the only mechanism in place for
achieving these goals, it is nonetheless an important top-down method of
steering the development of the EU. The infringement procedure contained
within Article 226 offers a key and visible nexus between the citizen and
the remote European bureaucracy, and presents a significant opportunity for
inter-institutional accountability that has not yet been fully exploited.
SUM MARY OF F INDI NGS
This book has attempted to analyse the role of the centralised
enforcement mechanism contained in Article 226, by examining it from the
perspective that it is a multi-functional mechanism in the Treaty that is
influenced and moulded by a multitude of actors. It has attempted to show
that it is only through the recognition of the different but equally important
functions of Article 226, and the contribution made by and interaction of all
of the actors involved, that a proper understanding of the role of Article 226
can be gained. In trying to understand the role of Article 226 in the Union,
it is insufficient and misleading to analyse Article 226 only in terms of its
ability to deliver effective enforcement, or equally, only in terms of the
influence and role of one actor. Moreover, due to a lack of legal control on
the discharge of executive power in Article 226, it is only through
examination of all of the actors’ behaviour and motivations that a genuine
analysis of Article 226 can be undertaken. These institutional/actor
motivations can only be appropriately analysed when placed against the
wider legal and political development of the Union; this illustrates to what
extent the changing environment of the Union (and therefore the
motivations of the actors involved) has affected the static legal text of
Article 226. This requires a framework of analysis that can adequately
capture the different modalities of Article 226, the actors involved and the
political context of the Union.
When examining the legal context, and in particular the impact of the
European Court of Justice (ECJ), it is insufficient to recite the judgments
applicable only to Article 226. It is necessary to consider the Court’s
approach in other enforcement actions, and across the EU more generally. It
is the interplay (or lack thereof) between the general principles (namely, the
administrative protections in the EU system) and Article 226 that illustrates
the ECJ’s abdication of responsibility under this mechanism. The
reinforcement of untrammelled Commission power has had negative knock-
on effects in other areas of the Treaty,1 as evidenced by the ECJ’s approach
to the Court of First Instance’s (CFI’s) judgment in max mobil.2 The ECJ’s
approach to Article 226 prevented the evolution of case law in other areas
of the Treaty from becoming aligned with the political aspirations of good
administration and transparency (as contained in the Charter of
Fundamental Rights) by refusing to allow ‘diligent complaint handling’ to
be recognised as a minimum legal standard, in order to preserve the status
quo in Article 226. This has robbed Article 226 of legal administrative
protections, and of the opportunity to instil a practice of synoptic reasoning
or enhance the opportunity to develop judicial review of discretionary
power. It is crucial to understand the interplay of this case law and the
practice and policy of the Commission under Article 226, including the
‘special relationship’ between the Member State and Commission, which is
buttressed by the stranglehold on information in relation to what amounts to
fulfilment of legal obligations. This is both promoted by, and is a
consequence of, the ECJ’s case law on Article 226.
Although there is the prospect of the Charter of Fundamental Rights
becoming a legally binding text if ratification of the Lisbon Treaty were to
take place, it seems unlikely that the principles contained within the Charter
will affect the jurisprudence of the ECJ under Article 226, particularly with
regard to the administrative phase and the protection of Commission
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