In Search of Remedies for Non-Compliance: The Experience of the European Community
| Published date | 01 December 1996 |
| Author | Peter van den Bossche |
| DOI | 10.1177/1023263X9600300404 |
| Date | 01 December 1996 |
| Subject Matter | Article |
Peter Van den Bossche
In Search of Remedies for Non-Compliance:
The Experience of the European Community
§1. Introduction
In recent years there has been a marked increase in the number of regional integration
efforts aimed at the establishment of a customs union or a free trade area. 1The most
noted of these new efforts to promote economic and social progress and to preserve and
strengthen peace and liberty are the North American Free Trade Agreement (NAFTA)
involving the US, Canada and Mexico and the Common Market of the South (Mercosur)
involving Brazil, Argentina, Uruguay and Paraguay.
However, all political and legislative efforts to establish NAFTA and Mercosur and
create an expanded home market for the people and businesses of their Member States
will be in vain if compliance with the agreed rules cannot be ensured. Without compli-
ance the treaties establishing NAFTA, Mercosur and for that matter similar regional
integration agreements are not worth the paper they are written on. It is therefore dis-
quieting that even the most cursory observation of the current NAFTA and Mercosur
practices reveal that non-compliance is indeed a problem. Non-compliance by states with
rules they have agreed on is, however, a wide-spread problem in international relations
confronted not only by recently established organizations for regional integration but
*
1.
Senior Lecturer in Law and Director of Studies of the Magister luris Communis programme at the
MaastrichtUniversity, the Netherlands. I wouldlike to thank Mireya Serra Janer, Gracia Vara Arribas,
Elisabeth Larsson and Sanna Sipila for their research assistance. I would also like to thank my col-
leagues Bruno de Witte and Cees Flinterman for their helpful comments. Responsibility for any factual
inaccuracy rests with the author. The first version of this article was prepared for the seminar
'Estrategfas de articulacion y reforzamiento de las capacidades de gestion de una Union aduanera:
opciones para el MERCOSUR', which took place in Montevideo on 8 and 9 July 1996, organized by
the Training Centre for Regional Integration (CEFIR) - European Institute of Public Administration
(EIPA), in the framework of the EU-Rio Group Training Programme for Regional Integration signed
by the European Commission and the Member States of the Rio Group.
For
an in-depth discussion of this trend, see e.g. the 1995 Report of the WTO Secretariat on
Regionalism and the World Trading System.
MJ 3 (1996) 371
IIn Search of Remedies for Non-Compliance
also by many other international organizations and agreements, including the ultimate
example
of
regional economic integration, the European Community. 2Whereas com-
pliance with European Community law has reportedly improved considerably over the
last few years, the Member States' record of compliance is still cause for concern. 3
It
is clear that the problem of non-compliance will never be resolved completely - there
is no such thing as a perfect world - but it can be mitigated to an extent that it no longer
constitutes a threat to the success of economic integration efforts or, more generally,
the continuation of collaboration between states. In this contribution I would like to
investigate some of the mechanisms used to keep the problem of non-compliance under
control. The European Community has over 40 years of experience with the problem
of non-compliance and has developed some very interesting, sophisticated and reasonab-
ly successful mechanisms to ensure compliance. Although the economic and political
reality as well as ambitions of the integration effort of NAFTA, Mercosur and others
are in many respects different from the reality and ambitions of the European
Community's integration effort, the latter's experience with the problem of non-compli-
ance may nevertheless be of considerablerelevance to them. In this article I will there-
fore primarily look at the Community's experience but I will also refer to the experience
of other organizations. I will first briefly describe the complex pathology ofnon-compli-
ance (§ 2) and then discuss a number of real but also some imaginary remedies for non-
compliance (§ 3) A very important aspect in the non-compliance debate is the settlement
of disputes with regard to non-compliance. The effective settlement of such disputes is
of crucial importance but is beyond the scope
of
this article.
§2. The Complex Pathology of Non-Compliance 4
Non-compliance may occur in different forms, for different reasons and at different
times. This makes non-compliance a complex phenomenon calling for a variety of
responses and remedies. Contrary to what many may think, non-compliance does not
always arise out of bad faith and it must therefore not always be tackled by a judicial
type of action and/or a sanction. Non-compliance may take the form of non-implementa-
tion (A), non-application (B) or non-enforcement (C). Each of these forms of non-
compliance may be the result of defiance, inability or inadvertence (D) and may occur
before and after litigation (E).
2. The experience discussed in this contribution is the experience of the European Community and not
that of the 'all embracing' European Union.
3. In spite of the improvement, the situation is in fact less and less acceptable. In the Community'S
frontier-free internal market of today, the effects of non-compliance by one of the Member States is
felt much more strongly and is much more disruptive and problematic than similar instances of non-
compliance were in the Community'S common market of the early70s and 80s. For the improvement
in the compliance record see: Twelfth Annual Report on Monitoring the Application
of
Community Law
(1994), COM(95) 500 final, p. 1 (g).
4. See Weiler, J., 'The White Paper and the Application of Community
Law',
in R.Bieber, R. Dehousse,
J. Pinder and J. Weiler, 1992: One European Market?, (Nomos, 1988), 337 at 341-344.
372 MJ 3 (1996)
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