The Administrative Supervision and Enforcement of EC Law: Powers, Procedures and Limits

by Alberto Ibáñez

Overview

The impact, and indeed long term survival of the European Community depends to a great extent on the effective practical implementation of Community law. This book compares the role of the Commission and national administrations in supervising and enforcing EC law, paying attention to what powers have been granted and what constraints exist, and when the Commission and national administrations are treated differently, and if that difference is justified.

The main object of the book is to analyse the main tools for supervision, such as inspections, and the main infringement procedures. Issues such as deadlines to act, discretion, the capacity of Administrations to cope with their responsibilities in this area, and the problem of administrative coordination, are examined. The author also offers an overview of the system of EC administrative law procedures, which have evolved to prosecute infringements committed by Member States. The author analyses the reasons lying behind the creation of those procedures, and the interaction between them, and focuses on the importance of Article 169.

The book relies primarily on an analysis of legislation, case-law and the most relevant legal rules, but also draws on the literature in political science and public management. This analysis is supplemented by the results of questionnaires and interviews with both national and Commission officials comparing their different views.

Product Details

ISBN-13:	9781841130569
Publisher:	Bloomsbury Academic
Publication date:	10/06/1999
Pages:	404
Product dimensions:	6.14(w) x 9.21(h) x 0.94(d)

About the Author

Alberto Gil Ibanez is Director of INAP in Madrid, Spain.

Table of Contents

	Table of Cases	xix
	Table of Treaties	xxxi
	Table of Secondary Legislation	xxxv
	Table of National Legislation	xlv
	Introduction	1
	Relevance of this Study	1
	Method of Analysis, Purpose of the Research and Main Contents	4
Part I.	Preliminary Clarifications: Words, Concepts and Contents
1.	Supervision, Enforcement, Administration and Ec Law	11
1.	Introduction	11
2.	Effectiveness, Implementation, Application, Supervision and Enforcement	11
2.1	Effectiveness	12
2.2	Implementation and Application	12
2.3	Supervision and Enforcement, or how to ensure the application of EC law	15
3.	The Concept of "Administration" at Community and National Levels	17
3.1	In Search of a Definition	17
3.2	The Different Administrative Functions	19
3.3	One Single but Shared Administration?	24
3.4	A Definition ad hoc	25
4.	A Suitable EC Rule for Enforcement	26
4.1	Introduction	26
4.2	General Criteria that a Rule must Fulfil to be Enforceable	27
4.3	Some Elements that Apply more Specifically to EC Law	29
5.	Summary and Conclusions	35
2.	Competences, Powers and Procedures	37
1.	Introduction	37
2.	The General Problem of the Division of Powers between the Community and the Member States	38
2.1	Preliminary Remarks	38
2.2	Exclusive versus Shared	39
2.3	Mixed, Concurrent, Parallel and Complementary	42
2.4	Conferred Powers versus Growing Competences	43
3.	An Attempt at Clarification: Competences, Powers and Procedures	45
3.1	Competences versus Powers	45
3.2	Exclusive Competences and Powers	48
3.3	Shared versus Concurrent Competences	48
3.4	Limits to Competences and Powers	49
4.	The Power of Ensuring the Application of EC Law	53
4.1	Who has the Power to Legislate and Adopt Executive Regulations Concerning the Application of EC Law? The Principle of Uniform Application as a Limit to National Powers	54
4.2	The Actual Process of Ensuring the Application of EC Law	56
5.	Summary and Conclusions: The Need to Analyse Procedures	58
Part II.	Procedures for Supervising and Enforcing Ec Law
3.	Obtaining Information: Community Versus National Inspectors	63
1.	Obtaining Information: Preliminary Remarks	63
2.	Commission Inspectorates and Other Means of Requesting Information: Legal Framework	65
3.	Commission's Power to Request and Receive Information and Member States' Duty to Provide it	67
4.	The Commission's Inspectorates	71
4.1	General Background: Types of Inspection	71
4.2	Areas of Competence where the Commission has been Granted the Opportunity to Use Inspectors	72
4.3	Different Means for Different Areas	73
4.4	Some Comments on the Present System of Inspection	74
5.	National Inspectors and Limits to their Action	78
6.	Limits to Commission Inspectorates: Interaction with National Inspectorates	80
6.1	Possible Application of the Principle of Proportionality	80
6.2	Are the Limits which Apply to National Inspectorates Applicable to the Commission's Inspectorates?	82
6.3.	The Need to be Accompanied by National Inspectors	83
6.4	The Need to Respect the National Procedural Laws	84
6.5	The Impossibility of Taking Part in Criminal Proceedings	85
6.6	Formal Limits: The Respect of Deadlines	86
6.7	Who Should Supervise the Supervisor?	86
7.	Summary and Conclusions	87
4.	Pursuing Infringements in Ec Law	89
1.	Introduction	89
2.	Infringement Procedures Created by the EC Treaty	90
2.1	Article 169 Procedure: The "Common/General" Procedure	91
2.2	Exceptions to Article 169 Procedure: Special Procedures in the EC Treaty to Fight Against Infringements Committed by Member States	101
2.3	Reinforced Powers of the Commission for Enforcing EC Competition Law upon Legal Persons: A Special Case	113
3.	Infringement Procedures Created by Secondary Legislation without a Clear Legal Basis in the Treaty	115
3.1	Procedures Developed within the Framework of the Article 169 Procedure	115
3.2	Procedures Extending Beyond Established Conditions under Article 169 EC	120
4.	Criteria to Make Procedures more Coherent and Efficient: Building on Success	127
5.	Some Possible Explanations of the Creation of Reinforced Procedures	128
5.1	The Active Participation of Member States through the Committees	128
5.2	The Imperfect Contracting Theory	130
5.3	A Legal Explanation?	131
6.	Summary and Conclusions	132
5.	Limits on the Use of Administrative Procedures	135
1.	Introduction	135
2.	Limits on the Use of Infringement Procedures: The Case of the Article 169 Procedure	136
2.1	Intensiveness	136
2.2	An Area for the Subsidiarity Principle?	137
2.3	A Particular Case: Breaches Committed by Regions or States Within a Federal System, which have been Granted Political Autonomy	142
3.	A "Non-legal" Limit: Lack of Capacity of Administrations as a General Problem	147
3.1	Some Previous Considerations about the Concept of Administrations' Capacity	147
3.2	Lack of Capacity within the Commission	149
3.3	The Lack of Capacity of National Administrations	152
3.4	A Legal Approach to the Problem of Lack of Capacity: The ECJ's Case Law	154
3.5	Solutions Included in EC Legislation to the Problem of Lack of Capacity of Administrations to Supervise and Enforce Law	156
4.	An Alternative Approach: Different Capacities Require Different Strategies	159
5.	Summary and Conclusions	161
Part III	Selected Aspects of the Administrative Supervision and Enforcement of EC Law
6.	Time Constraints	165
1.	Introduction	165
2.	Two Different Approaches to Time Constraints	166
2.1	Time Constraints as Instruments to Improve Administrative Co-ordination, Organisation and Effectiveness	166
2.2	Legal Consequences of the Problem of Time in Administrative Action. Some Concepts that Need Clarification	168
3.	Time Constraints in EC Infringement Procedures	172
3.1	Some Previous Remarks	172
3.2	Deadlines under the Article 169 Procedure: Case Law and Internal Rules	172
3.3	Special Cases within the Framework of the Article 169 Procedure: Lack of Transposition of Directives, Technical Rules (Directive 83/189) and Public Procurement	179
3.4	Deadlines Applicable to the Supervision of State Aid (Article 93 EC): Case Law and Soft Law	180
3.5	Special Infringement Procedures where Formal Rules have been Enacted Referring Deadlines to Act	187
4.	Summary and Suggestions for Improvement: Towards a New Model?	192
4.1	Weaknesses of the Present System	192
4.2	Possible Improvements of the System: Special Reference to the Article 169 Procedure	194
7.	The Problem of Discretion	199
1.	Introduction	199
2.	The Need for Discretion in Supervising and Enforcing EC Law	201
2.1	Some Previous Remarks	201
2.2	Reasons that Justify the Need for Granting Discretion to Both the Commission and National Administrations	202
3.	A Key Preliminary Phase: Discretion of Administrations in Interpreting the Meaning and Purpose of EC Law	204
3.1	Is the Commission Going Beyond its Powers?	205
3.2	The Discretion of Member States in Interpreting EC Law	207
3.3	The Conflict of Interpretation between the Commission and National Administrations	208
4.	The Discretion of Member States in Enforcing and Supervising Community Law	211
4.1	The Possibility of Granting some Discretion to Member States under EC Law	211
4.2	Legal arguments that Deny Discretion to Member States	217
4.3	Practical Reasons that Justify the Granting of Discretion to Member States	223
5.	The Commission's Discretion in Supervising and Enforcing EC Law	225
5.1	Reasons that Can Justify Granting Special Discretion to the Commission	225
5.2	The Commission's Discretion in Infringement Procedures	227
6.	Limits on Commission Discretion	239
6.1	Introduction	239
6.2	General Limits	239
6.3	Procedural Limits: Towards a Code of Good Administration?	242
6.4	Judicial Control	247
6.5	Other Controls	248
7.	Summary and Conclusions	249
8.	The Problem of Co-Ordination	251
1.	Introduction	251
2.	The Problem of Co-ordination within Administrations	254
2.1	Internal Co-ordination within the Commission	254
2.2	The Internal Co-ordination of Member States	256
3.	Problems of Co-ordination between the Commission and National Administrations in Supervising and Enforcing EC Law	274
3.1	Introduction	274
3.2	Co-ordination between the Commission and the Member States within the Framework of Infringement Procedures	274
3.3	Legal Principles that Preside over the Relations between the Commission and National Administrations in Ensuring the Application of Community Law. Co-operation versus Hierarchy?	281
3.4	Co-ordination through Partnership and Networks in the EC: Public Management and Rules	291
4.	Summary and Conclusions	306
9.	Some General Conclusions and Proposals for Improving the Supervision and Enforcement of EC Law	309
1.	General Conclusions	309
1.1	Confusing Terminology	309
1.2	The Lack of a Clear Division of Competences and Powers Forces a Down-to-earth Approach	310
1.3	Different Means of Supervision and Enforcement for Different Policies	310
1.4	Problems of Developing a System through Soft Law and Case Law	312
1.5	The Limited Capacity of Administrations	312
1.6	The Lack of Will to Supervise and Enforce EC Law	313
1.7	Different Procedural Constraints for the Commission and National Administrations	314
1.8	The Same Means of Supervision and Enforcement for Different Member States	314
1.9	Relationship between the Commission and National Administrations: Hierarchy versus Co-operation	315
1.10	More Co-ordination Requires More Trust	316
2.	Proposals for Improving the Administrative System of Supervision and Enforcement	316
2.1	Concerning the Policy Management	316
2.2	Concerning Procedures	319
	Bibliography	325
	Index	345

Editorial Reviews

The administrative supervision and enforcement of EC law is a challenging and scholarly work which will be of considerable interest to those working in the enforcement field. an original and valuable contribution to the existing literature.” —Edinburgh Law Review

“It provides a detailed picture of the current mechanism of enforcement, but it also draws the attention of the reader to their weaknesses......a well-researched and valuable book. The author should be congratulated for tackling a topic of such inherent complexity, for articulating it, and for offering a set of stimulating suggestions on improvement. He also manages to convey a message of enthusiasm for a reform that is long overdue.” —Yearbook of European Law

From the Publisher

Ilbanez analyzes the European Community's main tools for supervising its law, such as inspection, and its main infringement procedures. He relies mostly on legislation, case-law, and the most relevant legal rules but also draws on the literature in political science and public administration and questionnaires and interviews with national and Commission officials. He here updates his May 1997 Ph.D. dissertation for the European University Institute of Florence, but also fine tunes much of the language and changes some emphasis and arrangement. Distributed in the US by ISBS. Annotation c. Book News, Inc., Portland, OR (booknews.com)

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