The "Standard" Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228

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INTRODUCTION

Although the Treaty Establishing the European Community (1) ("EC Treaty" or "Treaty") has created several procedures for combating Member States' breaches of European Community ("EC") law, the European Commission ("Commission") enforcement procedure under EC Treaty Articles 226 and 228 is still the most far-reaching and most commonly used. This Article examines the Commission's policy and strategy in enforcement proceedings under these provisions and attempts to discover the predominant European model, if such a model exists, for enforcing and supervising EC law. Although this Article will concentrate mainly on the administrative phase under Article 226, some reference will also be made to the judicial phase, when the Commission sues a Member State before the European Court of Justice (the "ECJ" or the "Court") under Article 228, since Article 226 cannot be understood without Article 228. (2) Although much has been written on Commission enforcement, new developments and some procedural aspects merit its reassessment. (3) Thus, this Article ultimately focuses on some general difficulties in analyzing supervision and enforcement at the European level and the problem of implementation in more general terms. (4)

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THE PRESENT MODEL FOR SUPERVISING AND ENFORCING EC LAW

A. General Procedures

EC Treaty Article 211 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." The exercise of this general power can occur in a number of ways. The EC Treaty instituted different procedures for fighting Member State noncompliance. (5) Of these, Article 226 is probably the most important contribution that Community law has made to the construction of a legal model of regional integration. It applies across the board, to all duties under European law and represents the common denominator for other procedures. Moreover, contrary to widespread perception, Article 226 is also useful in fighting breaches committed by legal and natural persons, albeit in an indirect way. This is tied to the requirement that enforcement authorities in the Member States pursue and correct breaches committed by natural persons and businesses.

The first procedural step, contained in the first paragraph of Article 226, is what the Commission calls "formal notice." The Commission must give the Member State notice of a suspected breach and the opportunity to submit its observations. A pre-Article 226 letter usually precedes this stage, as the pre-Article 226 letter allows the Commission simply to attempt to collect information in order to decide if a breach exists. The administrative phase concludes with the delivery of a "reasoned opinion." If the Member State fails to comply, the Commission may bring an action before the Court of Justice.

The EC Treaty contains four different kinds of exceptions to the use of Article 226 procedure to persuade Member States to change their behavior if they have failed to fulfill their obligations under the EC Treaty. First, the EC Treaty creates an exception when direct access to the ECJ is allowed without the need for a previous administrative phase. (6) Second, the EC Treaty creates exceptions for cases in which the potential intervention of the ECJ results from either a different administrative procedure, such as State aid (7) or supervision of competition rules in the case of public companies with special rights. (8) Third, the EC Treaty creates exceptions for cases in which an administrative-political procedure has been designed that reduces the role of the Commission to the benefit of the Council, such as control of excessive government public debt and deficits. (9) Fourth, Article Seven of the Treaty on European Union (10) has created a political procedure to fight against Member State violations of principles and common values mentioned in paragraph one of Article Six of the Treaty on European Union. …