Exceptions to Article 226: Alternative Administrative Procedures and the Pursuit of Member States

• Author: Alberto J. Gil Ibáñez
• Published date: 01 June 2000
• DOI: http://doi.org/10.1111/1468-0386.00102
• Date: 01 June 2000

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Exceptions to Article 226:

Alternative Administrative Procedures and

the Pursuit of Member States

Alberto J. Gil Iba

ÂnÄez*

Abstract: This article considers the procedures used in EC law to prosecute infringements

committed by Member States, in addition to the well-known Article 226 (ex Article

169) EC. It has three purposes. The ®rst is to systematise the main categories of these,

to examine the reasons for the creation of these procedures and the interaction among

them, using Article 226 as the main point of reference. The basic criterion is the

distinction between procedures established by the EC Treaty and procedures estab-

lished by secondary legislation but without a clear legal basis in the Treaty. The second

purpose is to explain why Member States have accepted the development of new

procedures, even though they serve to reinforce the Commission's powers. The article

argues that this acceptance can be explained, ®rst, by the active participation of

Member States, through committees, in the establishment of these procedures; and,

secondly, a deliberate strategy to convince Member States, on both a sectoral basis,

and a case-by-case basis, by the Commission. The article concludes, however, that the

current procedures should be improved and that it is time for them to be realigned and

rationalised.

I Introduction

Article 211 (ex Article 155) of the EC Treaty grants the Commission a general power

`to ensure that the provisions of this Treaty and the measures taken by the institutions

pursuant thereto are applied'. This power is to be exercised according to a number of

procedures. Some of these procedures are established by the EC Treaty.

1

For example,

the most general and common procedure is laid down in Article 226 EC.

2

There are,

however, three dierent kinds of exceptions laid down by the Treaty to the normal use

of the Article 226 procedure. Like Article 226, all seek to persuade Member States to

alter their behaviour if they have failed to ful®l their obligations under the EC Treaty.

European Law Journal, Vol. 6, No. 2, June 2000, pp. 148±175.

#Blackwell Publishers Ltd. 2000, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Spanish National Institute for Public Administration in Madrid. This article is part of a PhD thesis

defended in May 1997, entitled `A Comparative Study of the Roles of the Commission and National

Administrations in the Supervision and Enforcement of EC Law' at the European University Institute,

Florence. Some conclusions are based on interviews with Commission ocials.

1

I will not analyse the procedures laid down by the ECSC and EAEC Treaties, such as, in Articles 58 and

59 ECSC Treaty, on intervention in coal and steel production, or Articles 79, 82 and 83 EAEC Treaty on

the security of nuclear materials. Nevertheless, reference will be made to these Treaties if it is relevant to

the analysis of EC infringement procedures.

2

Hereinafter, referred to as the `Article 169 procedure'.

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The ®rst refers to situations, where direct access to the ECJ is allowed without the need

of a previous administrative phase.

3

Second, refers to the cases where the potential

intervention of the ECJ is the result of a dierent kind of administrative procedure.

4

Thirdly, there are cases where an administrative-political procedure has been estab-

lished which reduces the role of the Commission to the bene®t of the Council.

5

Nevertheless, the Treaty, as a general constitutional rule, does not de®ne in detail

the dierent characteristics of these procedures. In this sense, the Treaty sometimes

explicitly requires further legislative development, such as in the case of competition

policy and State aids. In other situations the Treaty remains silent in this regard, as in

the case of Article 226. One exception is the procedure in Article 104 (ex Article 104c),

introduced by Maastricht Treaty, which is outlined in great detail by the Treaty itself.

Moreover, this complex picture has become even more intricate, since the Com-

munity has been creating new and reinforced administrative procedures (some better

known than others). These new procedures have been created by secondary legislation

and by other means not clearly based on the Treaty itself. They have reduced the ®eld

of application of the Article 226 procedure.

This article attempts to systematise the main categories of administrative infringe-

ment procedures, existing under EC law, which are exceptions to the normal appli-

cation of Article 226 procedure. An exhaustive analysis is not possible, however,

within the scope of a brief article. I focus on the second and third groups of exceptions

outlined above. Article 95 (ex Article 100a (8) ) and 298 (ex article 225) are not

included, because the possibility of bringing a case directly to the ECJ is granted to

the Commission as well as to the Member States. In addition, I shall therefore

concentrate on selected important issues:

First, this article will analyse the nature of the legal sources employed for the

creation and development of each procedure. Together with European Court of

Justice (ECJ) case law, these sources are essentially three-fold: primary law (i.e., the

Treaty), secondary law and dierent forms of soft law.

6

The distinction is important

because the dierent types of sources presuppose a dierent relation between the

Commission and the Member States, within the Council, as law-makers. This dierent

participation can in¯uence their role as supervisors and enforcers of the application of

EC law. Secondly, this article also considers the reasons and motives that have been

invoked in order to justify the creation of special or reinforced procedures. Thirdly, it

examines the interaction between the dierent procedures, taking as its main point of

reference the Article 226 procedure. Finally, the article concludes by noting the

possible explanations for the proliferation of reinforced procedures and oering

some conclusions about potential reforms.

June 2000 Exceptions to Article 226

#Blackwell Publishers Ltd. 2000 149

3

Cf, Article 95(8) (ex Article 100a(8)) (following the amendment to Article 95(4) (ex Article 100a(4) ) under

by the Treaty of Amsterdam) and Article 298 (ex Article 225).

4

Cf, Article 87(2) (ex Article 93(2)) and Article 86(3) (ex Article 90(3) ). In John Usher's terms, Article 298

(ex Article 225), 102(4) (ex Article 104a(4)) and 88 (ex Article 93) EC procedures, could be called

`expedited proceedings': J. Usher/J. Plender, Plender and Usher's Cases and Materials on the Law of the

EC (Butterworths 1993) 133. See also Articles 38, 82 Euratom Treaty.

5

Cf, control of excessive national public and debt de®cit: Article 104c.

6

The concept of soft law may be considered as an evolving concept that as yet has no precise limits. For a

discussion of the dicult nature of this concept in Community law, cf, Snyder, `Soft Law and

Institutional Practice in the European Community' in S. Martin, The Construction of Europe: Essays

in Honour of Emile Noe

Èl(Kluwer 1994) 197±225; K.C. Wellens/G.M. Borchart, `Soft Law in European

Community Law' (1989) 14 European Law Review 267±321. The latter contains a classi®cation of

Community soft law according to forum, form and content (at 296±302).