Discretion in the Articles 258 and 260(2) TFEU Procedures
| Author | Ernő Várnay |
| DOI | 10.1177/1023263X1502200604 |
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
| Subject Matter | Article |
836 22 MJ 6 (2015)
DISCRETION IN THE ARTICLES
258AND 260(2) TFEU PROCEDURES
E V*
ABSTRACT
e European Commission has absolute discretion in proc eedings under Article258 TFEU.
It is free to decide against what kind of violation and against which Member State it will
initiate proceedings as well as on the timing of these proceedings. e reasons of this wid e
discretion ( limited resources, political considerations, e cient compliance management)
and the arguments against it (the obligation of the Commission as the ‘Guardian of the
Treaty’, the reasonable time limit requirement, the accountability approach opposing any
unlimited discretion) are explained in this article. e Cour t’s unlimited jurisdiction under
Article260 TFEU entails that it can impose nancial sanctions without taking account of
the proposal by the Commission. is may violate the principles of legal certainty and
institutional balance. is article sheds light on the bureaucratic dimension which may
contribute to a deeper understanding of the Court’s sustenance of the absolute discretion
and the role of bureaucratic self-interest in reluctance to give ac cess to documents.
Keywords: absolute d iscretion; bureaucratic sel f-interest; inf ringement proce edings;
unlimited jurisdiction
§1. IN T RODUCT IO N
Articles258 a nd 260 of the Treaty on the Functioni ng of the European Union (TFEU)1
provide for a complete EU law enforcement procedure. If the supranational enforcer (the
Commission) considers that a Member State has violated a ny Treaty obligations, it may
bring the matter before the Cour t of Justice of the European Union (CJEU). If a Member
* Professor of Europea n Law, University of Debrecen. I tha nk Márton Varju for his precious com ments
on an earlier version of t his paper.
1 Ex Articles169 and 171 of the Treaty on the European Economic Communit y, ex Articles226 and 228
of the Treaty on the Econom ic Community.
Discretion in t he Articles 258and 2 60(2) TFEU Procedures
22 MJ 6 (2015) 837
State does not comply with the judgment which dec lares that there has been a breach of
EU law, the CJEU, following an application by the Comm ission, may impose a nancial
sanction on it.
e se procedures form part of the EU legal system.2 However, the text of the Treaties
grants the Comm ission and the CJEU broad discretionary power (‘if the Commission
considers’, ‘ it may bring t he matter’, ‘it speci es the amount’, ‘the Court may impose
nancial sanctions’). In pract ice, the procedures include a pre-litigation (administrative)
phase, which itself contai ns an informal – inter-admini strative – phase, which is followed
by formal acts by t he Commission (a letter of formal notice, a reas oned opinion, referral
to the CJEU). It is therefore hard to avoid questions about what the limits of t hese powers
of appraisal are and how t hey are used.
We submit that in order to answer these questions it would be useful to consider not
only the legal and polit ical aspects of the infri ngement procedures, but to give adequate
weight to the organizat ional-bureaucratic dimension. Perhaps this approach could help
to explain the relucta nce of the CJEU in assuring the e et utile of legal pri nciples such as
the reasonable time requi rement or institutional balance.
A er a brief discussion of the nature of the admi nistrative discretion (Section 1)
will follow explanations of the wide discretion that the Commission enjoys in the pre-
litigation phase of the procedure (Sect ions 2 and 3) and then arguments aga inst this
absolute discretion (Section 4). Section 5 wil l shed light on and criticiz e the unlim ited
discretion of the CJEU in t he procedure laid down in Article260(2) TFEU and the way
it is used. Perhaps the most novel claim of t he study is laid down in Se ction 6, in which
it is suggested that the absolute discretion serves not only the proper applicat ion of the
EU law but may hide problems inherent in the bureaucratic ty pe of law enforcement.
We conclude that the Commission’s discretion would better ful l the requi rements of
the principles of legal certainty and democratic accountability if it would be l imited
by time limits and broader access to documents. As far as the CJEU’s discretion in
Article260 (2) TFEU cases is concerned, it seems to be adv isable to leave more space for
the Commission’s discretion and to elaborate a more tr ansparent method of sanctioning.
§2. CONCERNING DISCRETION
Discretion arise s when the law grants a public o cial (body) the possibility of choosing
more than one course of action. e author Ha rt sets out a distinction between express
or avowed use of discretion, and tacit or concealed d iscretion.
2 ‘En e et, la procédure en man quement est l’une des cl és de voûte du système juridi que sui generis qu’est
le droit de l’Union e t son existanc e gure par mi les principales caracté ristiques qui le disting uent des
systèmes de co opération plus po ussés du droit inte rnational cl assique, te l que le régime juri dique de
l’Organisation mondiale du commerce.’ T. Mate rne , La pr océdur e en man queme nt d’ état (L arcier, 2012),
p.13.
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