The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02852.x |
| Date | 01 January 1993 |
| Published date | 01 January 1993 |
| Author | Francis Snyder |
January
19931
The
Effectiveness
of
European Community
Law
The Effectiveness of European Community Law:
Institutions, Processes, Tools and Techniques
Francis
Snyder*
Introduction
Law has always been a basic instrument and a central symbol of European integration.
Yet today the effectiveness of European Community law increasingly seems in issue.
Even in ordinary circumstances, this state of affairs would raise serious questions
of law, policy, politics and social theory. Stimulated by the Maastricht Treaty on
European Union, however, it has converged with and fuelled an emerging debate
on the future of western Europe. Two important strands in this debate concern,
on the one hand, the merits of different ways of ensuring the effectiveness of
Community law and, on the other hand, the institutional structure of future European
society and the relations between its component parts. This article focuses mainly
on the first strand, but it also seeks to contribute to the wider debate.
The article has three specific purposes. First, it considers some of the principal
means which are currently used to ensure the effectiveness of Community law.
‘Effectiveness’ is taken to mean the fact that ‘law matters: it has effects on political,
economic and social life outside the law
-
that is, apart from simply the elaboration
of legal doctrine.” By its emphasis on the social context in which law operates,
as well as in its interdisciplinary character, this definition is broader than the legal
doctrine of ‘effectiveness,’ either ‘procedural’ or ‘substantive.
’*
It includes
-
but
is
not limited to
-
implementation, enforcement, impact and compliance.3
This article is concerned not only with the nature of effectiveness but also with
its legal and institutional prec0nditions.j The European Community has a complex
institutional structure. The effectiveness of Community law depends on Community
institutions, Member States, corporatist arrangements, pluralist politics, policy
*Professor of European Community Law, European University Institute, Florence; Professor, College of
Europe, Bruges; Honorary Visiting
Professor,
Faculty of Laws, University College London.
The author wishes to thank Jason Coppel, Renaud Dehousse, Nathalie Habbar, Christian Joerges, Emir
Lawless, Giandomenico Majone, Emile Noel, Anna Papaioannou, several past and present officials of the
EC Commission and an anonymous reader for the MLR for their contributions to this article.
1
Snyder,
New Directions in European Community Law
(London: Weidenfeld
&
Nicolson,
1990)
p
3.
2
On
procedural effectiveness, see eg Case
33/76,
Rewe
v
Landwirtschafskammerfir Saarland
[
19761
ECR
1989;
Case
45/76,
Comet
v
Produktschaap voor Siergewasen
[I9761
ECR
2043;
Case
C213189,
R
v
Secrerary
of
Srate for Transport, ex
p
Factortame
[I9901 3
CMLR
1;
Case
C208190,
Emmott
v
Minister for Social Welfare
[I9911
3
CMLR
894.
On
substantive effectiveness, see eg Case
14/83,
von
Colson and Kamaan
v
Land Nordrhein-Westfalen
[I9841
ECR
1891;
Case
222184,
Johnston
v
Chief Constable
of
the RUC
[
19861
ECR
165
1.
For
the argument that ‘procedural’ and ‘substantive’
effectiveness are two sides
of
the same coin, see Mead, ‘The Obligation to Apply European Law:
Is Duke Dead?’
(1991) 16
ELRev
490, 492-495.
3
In other words, effectiveness may include both the effects of legal norms and the following of legal
norms. See Teubner, ‘Regulatory Law: Chronicle of a Death Foretold’ in Lenoble (ed),
me Crisis
of
Law in the Welfare State
(London: Sage,
1992)
p
451,
n
2,
citing Rottleuthner,
Einfihrung in die
Rechtssoziologie
(Darmstadt: Wissenschaftliche Buchgesellschaft,
1987)
pp
54
et seq.
4
The extent to which efficiency is a prerequisite of effectiveness, in the sense either of a specific relation
between costs and benefits
or
of a particular quality of decisions, lies outside the scope of this article.
0
The Modern Law Review Limited
1993
(MLR
56:l.
January). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
IJF and
238
Main Street, Cambridge,
MA
02142,
USA.
19
The
Modern
Law
Review [Vol.
56
networks and individuals.5 This article focuses on two Community institutions, the
Commission and the Court of Justice. Consequently, its second purpose is to present
a systematic reinterpretation of these institutions, including their basic processes,
tools and techniques, with regard to the task of ensuring the effectiveness of
Community law.6 For this purpose, it is necessary to draw on both law and other
disciplines. In addition to charting the development of certain aspts of legal doctrine,
this article thus may illustrate some of the ways in which our understanding of
Community law, and in particular of Community institutions, may be enriched by
a contextual method.’
On the basis of this discussion of different institutional arrangements for ensuring
the effectiveness of law, the third purpose of the article is to pose several normative
questions. What division of labour should prevail among Community institutions
in ensuring the effectiveness of Community law? Are existing institutions adequate?
If not, what gaps exist, and how might they be filled? What
is
our vision of future
western European society?
Do
we have any criteria and any processes by means
of which choices about the future can be made? These questions direct our attention
to the connections between the purposes of the Community, its rules and processes,
and its institutional structure. They help us to consider whether the institutions of
the present are adequate for the future. This article aims to put these questions on
the legal and political agenda.
The remainder of the article is divided into three main parts. The first of these
identifies the nature of non-compliance in the contemporary Community legal system,
and then considers the effectiveness of Community law as a problem of policy and
theory. The following two parts discuss different responses to non-compliance with
Community law: administrative negotiation of effectiveness by the Commission and
the development of a judicial liability system by the Court of Justice. Each of these
two parts presents a heuristic model, designed not to give a comprehensive account
of the institution, but instead to identify some of its main features in the light of
the issue of the effectiveness of Community law. In conclusion, a systematic
comparison is proposed between the two sets of institutions, processes, tools and
techniques. It is also argued, however, that administrative negotiation and improved
adjudication should not be envisaged as alternatives. Instead they should be developed
in tandem, if necessary following appropriate modifications in the two institutions
and changes in the institutional structure of the Community. It is further suggested
that neither the Commission and the Court of Justice taken together as institutions,
nor negotiation and adjudication taken together as processes, despite their merits,
are sufficient alone to ensure the effectiveness of Community law. Instead, further
5 Although these different forms of organisation are crucial determinants
of
the extent of the effectiveness
of Community law, they have attracted little attention from legal scholars. Useful work by political
scientists includes Cawson (ed),
Organized Interests and the State: Studies
in
Meso-Corporatism
(London: Sage, 1985); Lehmbruch and Schmitter,
Patterns
of
Corporatist Policy-Making
(Beverly
Hills: Sage, 1982); Streeck and Schmitter, ‘From National Corporatism
to
Transnational Pluralism:
Organized Interests in the Common Market’ (1991)
19
Politics and Society
133; Marin and Mayntz
(eds),
Policy Nehvorks: Empirical Evidence and 7heoretical Considerations
(Boulder: Westview. 1991).
6
The relations between institutions, rules, ideologies and processes may be considered
to
be one of
the four key areas of EC law in context: see Snyder,
op
cir
n
1,
chap
1.
For different approaches
to
the analysis of institutions, see Komesar,
‘In
Search of a General Approach
to
Legal Analysis:
A Comparative Institutional Alternative’ (I98
1)
79
Michigan Law Review
1350; Komesar, ‘Taking
Institutions Seriously: Introduction
to
a
Strategy for Constitutional Analysis’ (1984)
5
1
University
ofChicago Law Review
366; Keohane and Hoffmann (eds),
Vie New European Community
(Boulder:
Westview, 199
I);
Sbragia (ed),
Euro-Politics: Institutions and Policymaking in the ‘New’ European
Community
(Washington, DC: The Brookings Institution, 1992).
7
See generally Snyder,
European Community Law,
2
vols (Aldershot: Dartmouth, forthcoming).
20
0
The Modern
Law
Review Limited
1993
January
19931
The Effectiveness
of
European
Community
Law
changes in both the institutions and the processes of the Community are necessary
in order to ensure the effectiveness of Community law in the future.
I Compliance, Implementation, Enforcement and Effectiveness
The New Challenge
of
Compliance
The deadline for the completion of the internal market passed at the beginning of
the year. The deadline was not legally binding, but this does not mean that it has
had no effect. On the contrary, its practical consequences stand as a tribute to the
brilliance of specific individuals and organisations in elaborating strategies for further
integration, as well as to the instrumental and symbolic use of law by organisations
without recourse to legal force.8
In addition, the mere fact that the
1992
deadline was stated in the Single European
Act, and consequently in Article 8A EEC, focused a fierce spotlight on the effective-
ness of Community law.9 It led to a concentration by politicians, administrators,
judges, lawyers and academics on implementation, impact and compliance.
lo
This
in turn highlighted many achievements but also revealed numerous problems. The
latter centred on the transposition of Community directives and national compliance
with Community law, including Court of Justice decisions. These concerns were
to culminate in a Declaration on the Implementation of Community Law, annexed
to the Maastricht Treaty. The Declaration enjoined Member States to transpose
Community directives fully and adequately into national law within the specified
deadlines; it also stated that, while Member States might take different measures
to enforce Community law, these measures should result in Community law being
applied with the same effectiveness and rigour as national law.
These concerns reflect the transformation of the legal, economic and political
configuration of western Europe since the late
1950s.
This new context gives a
different character to non-compliance with Community law today.
I2
Withdrawal
from the Community is now ruled out as an option for national policy. As a result,
8
Compare Maravcsik, ‘Negotiating the Single European Act: National Interests and Conventional
Statecraft in the European Community’ (1991) 25
International Organization
19; Streeck and Schmitter,
op cit
n
5;
Sandholtz and Zysman, ‘1992: Recasting the European Bargain’ (1989) 42
World Politics
95;
and Ehlermann, ‘The Internal Market Following the Single European Act’ (1987) 24 CMLRev 361.
9
For earlier studies, see Ciavarini-Azzi,
L’Application
du
Droit Communautaire par les Etats membres
(Maastricht: European Institute
of
Public Administration, 1985); Siedentopf and Ziller (eds),
Making
European Policies Work: The Implementation of Community Legislation in the Member States,
2 vols
(London: Sage, 1988).
10 Beginning in 1985, the Commission issued periodic progress reports on the enactment and transposition
of internal market legislation. Formal reports were also required under Art 8b EEC. The Commission
also issued occasional reports; see eg ‘National Measures for the Implementation
of
the White Paper
on the Completion of the Internal Market: Situation as at 1.10.1990’ (1990). Beginning in 1984, it
has also made an annual report to the European Parliament on the monitoring of the application
of
Community law,
of
which the most recent are the Eighth Annual Report, COM(91) 321 final (16
October 1991).
OJ
1991 C338/1 and the Ninth Annual Report
OJ
1992 C250/1. See also Schwarze,
Govaere, Helin and Van den Bossche (eds),
The 1992 Challenge at National Level: Reports and
Conference Proceedings 1989
(Baden-Baden: Nomos, 1990); Schwarze, Becker and Pollack (eds),
The 1992 Challenge at National Level: Reports and Conference Proceedings 1990
(Baden-Baden:
Nomos, 1991); Schwarze, Becker and Pollack (eds),
The 1992 Challenge at National Level: Reports
and Conference Proceedings 1991
(Baden-Baden: Nomos, 1992). See also Editorial Comments, ‘How
to Strengthen the Effectiveness of Community Law’ (1991) 28 CMLR 711.
1 1 Declaration 18, para 1. The same Declaration asks the Commission to report regularly to the Council
and the Parliament on its monitoring activities. Previously, the report was addressed to the EP alone.
12 See Weiler, ‘The Transformation
of
Europe’ (1991) 100
Yale
Law
Journal
2403, 2463-2464.
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The Modern
Law
Review Limited
1993
21
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