EU Law Enforcement Mechanisms - Essay Example

? EU Law Enforcement Mechanisms The development of enforcement mechanisms in European Union law is not entirely satisfactory. The following discussion proves this contention. The institutions of the EU utilise two chief mechanisms for ensuring the compliance of the Member States with fundamental rights and European law. The first of these are the infringement proceedings available under Article 258 of the Treaty on the Functioning of the European Union. This enables the Commission to initiate proceedings against a Member State that fails to comply with European law.1 The second device available relates to the European Court, where the proceedings initiated by the Commission could finally be taken up. The Court will assess the degree of the breach committed by the Member State, with regard to European law. Thereafter, the Court will specify the measures for ensuring compliance with European law by the Member State.2 In addition, the Court may impose financial penalties on the recalcitrant Member State. Moreover, Article 7 of the Treaty on the European Union specifies a fundamental rights mechanism. The provisions of the above mechanism provide for the imposition of sanctions against a Member State that commits a grave and persistent breach of the basic principles of the EU. 3 However, this mechanism has not been employed till date. This clearly shows the weakness of the enforcement procedures in EU law. Furthermore, these mechanisms become effective only after a violation has been established and determined. As a consequence, they do not facilitate the prevention nor do they provide an immediate response to serious breaches of EU law and fundamental rights. 4 The Commission is the chief enforcement authority, with regard to competition rules, and it effects this through the Directorate – General for Competition. The Commission can initiate an investigation on its own. This could be on the basis of press reports or its investigation on the basis of the powers conferred upon it by Article 17 of Regulation 1/2003. In addition, cases arise from complaints made by individuals or admissions of having breached the rules by undertakings. 5 Initially, the Commission will make an investigation into the claim. During the process of investigation, the Commission is empowered to direct undertakings to furnish information and conduct interviews. This measure is aimed at enabling the Commission to determine whether the undertaking has breached the law. Furthermore, the Commission has been vested with the power to search business premises and private homes, and impound pertinent documents. 6 However, before making a search, the Commission has to take the permission of the national Court. Specifically, the Commission is empowered by Article 18(1) of the Regulation 1/2003 to instruct undertakings to provide information related to the infringement in question. A recent development is that the Commission relies on the statements made to it by parties. While providing information to the Commission, an undertaking runs the risk of incriminating itself. 7 This violates the right against self – incrimination and the ECJ has accorded partial recognition to this right. Thus, this right applies to a party that has to reply under pain of fine. In case there is no fine involved, there is no such right, as the party is at liberty to ignore the direction of the Commission.8 Even if there is the possibility of a fine being imposed for remaining silent, the right is limited in extent. This was amply illustrated in the case Orkem v Commission.9 The Commission has the authority to decide whether a particular piece of information is essential for establishing breach of competition rules. As a consequence, even if it has proof regarding such infringement, it can nevertheless, request for additional information.10 Such additional information could be necessary for describing the infringement in a better manner.. As such, with regard to infringements in the economic area, it cannot be assumed that an undertaking is entitled to withhold information that could prove to be self – incriminatory. Moreover, it cannot claim this right under the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights. However, the Commission cannot force an undertaking to furnish information regarding the presence of an infringement, which it is obligatory for the Commission to establish. 11 Moreover, the principle of state liability has had far reaching changes in the EU. This principle enables the ECJ to impose decentralised sanctions against a Member State that fails to comply with EU law. On the whole, since the 1990s, the ECJ has expanded upon the enforcement mechanism of the EU. These interventions of the ECJ, on many an occasion, have been seen to significantly diverge from the stated interests of the national governments of the Member States. 12 During the past, national courts could award damages to individuals who had suffered loss due to a Member State’s non – compliance with EC law, only under circumstances that were quite limited in number. Moreover, the principle of indirect effect did not provide any remedy to individuals harmed by a Member State’s non – compliance with EU law. On the other hand, the principle of direct effect provides limited relief in such cases.13 This unhappy situation obtaining with regard to the limited scope of the extant remedies and their inherent weaknesses was circumvented with the introduction of the principle of state liability. This principle increased the opportunities of individuals to procure compensation for the breach of their rights. In addition, this principle proved to be a strong means of inducing Member States to comply with EC law. State liability was introduced and established in the Francovich14 case. It was developed thereafter in the Brasserie du Pecheur,15 Factortame III, 16 and British Telecommunications17 cases. 18 As such, the principal duty of the European Commission (EC) is to enforce the European Union (EU) Law. However, the EC cannot do this on its own. Realising this shortcoming with the EC, the European Court of Justice (ECJ) made rulings that promoted individual action, in this context. The case law of the ECJ has brought about a shift from Articles 226 and 227 to Article 234, with respect to law enforcement.19 Thus, there has been a change in emphasis from public to private enforcement. Consequently, with the decision in Van Gend en Loos,20 it has become the conventional case law that the Application of Article 226 does not prohibit action under Article 234. Consequently, individuals can safely rely on Community Law, and this is not affected by whether the Commission has commenced a procedure against a Member State under Article 226. 21 However, there are certain conditions that have to be fulfilled, before an individual can raise a claim for securing his Community rights. The personal and private interests of an individual have to be affected, if that person is to raise an action. It is not permissible to raise an action, merely on the grounds that the interests of the general public are affected. Due to the principle of direct effect, individuals can ensure that their Community rights are enforced. In case of breach of such rights, an appropriate remedy can be obtained. However, such remedy is restricted to the affected individual and does not result in the securing effective and complete enforcement of Community law.22 For claiming a right, an individual should have suffered directly due to the infringement of a Directive. There are several instances, where the Community provisions do not have direct effect, because of their being imprecise and conditional. In such cases, the principle of direct effect is limited to protecting Community rights and ensuring their enforcement with regard to individuals. Moreover, the concerned individuals, in these cases, have to be aware of such direct effect regarding their rights and should be willing to enforce them.23 The outcome of this situation is that Community law is enforced in an infrequent and random fashion. A ruling based on the direct effect of Community Law favours an individual. It does not rectify defects in national law. Hence, differences between domestic and Community law make the individual’s legal position uncertain. As such, the direct effect principle is deficient as a means of enforcement, with regard to individual relationships. Some directives are quite precise and unconditional; however, these are insufficient to produce a horizontal effect. In other words, a directive may fail to impose an obligation upon an individual, by itself.24 In cases, where the claim is against a private individual or entity there will be no horizontal direct effect. In some systems, litigation is crucial for enforcing labour laws. In this context, judicial liability for infringement of EU law assumes considerable importance. There is little ambiguity involved, when EU law relating to employment is enforced in such systems. Moreover, the national law implements the rights granted to individuals and organisations, in such systems, via legal measures that can be enforced in the national courts.25 Furthermore, if the enforcement of EU law by national authorities is unclear, then implementation is not upto the mark. Enforcement, in such cases, has to be done through the national courts, by means of the doctrines of direct effect, indirect effect or that of State responsibility. The ECJ has continued with its unremitting efforts to examine and evaluate the procedures, remedies and sanctions available at the national level for enforcing EU law.26 Several referrals were made to the ECJ by the national courts, regarding the interpretation of EC Law. The ECJ confirmed in all these cases that the direct effect would be extended beyond the provisions addressed in van Gend en Loos. In addition the ECJ directed that directly effective EC Law would prevail over any conflicting national legislation. Moreover, it was made very clear that Regulations, Directives and Decisions had direct effect.27 . This was made applicable to some of the provisions of the treaties of the EC. Moreover, it was held that some of the treaty articles were directly enforceable, whereas Regulations were deemed to be directly applicable in their entirety. In order to ensure the effective implementation of EC Law at the national level, the ECJ developed a large body of case law. This case law relates to the Member State remedies and procedural rules.28 Obviously the jurisdiction enjoyed by the ECJ determines the effectiveness of the legal framework of the EC. Some of the factors that have ensured such effectiveness are the ECJ’s vast powers of judicial review in the context of direct action and its jurisdiction to provide preliminary rulings in almost every area of Community law. 29 Moreover, a Member State of the EU can breach European law by not transposing a Directive into its domestic law, in a timely or correct manner. However, this cannot be done with regard to decisions of the ECJ or Court of First Instance, Regulations and treaty provisions. These Directives, which come into force after being agreed upon and voted in the European Council, are not applicable directly.30 The concerned Member State has to make suitable changes to its national laws, in order to comply with the requirements of a Directive. In addition, such compliance has to be within the specified time limit. This situation provides a Member State with substantial flexibility and sovereignty regarding the manner in which to transpose Directives into its domestic law. 31 In many cases, transposition of Directives into national laws is not flawless. As such, Member States will make laws in a manner that differs significantly from the Directive. In fact, the proper transposition of a Directive by a Member State results in new legislation that can be enforced in the domestic courts. The different ways in which a Member State may fail to transpose a Directive are as follows. First, the Member State may not have initiated any action whatsoever to transpose the Directive into its domestic law. This is termed as no notification of transposing measures.32 Second, the transposition of a Directive into national law by a Member State had not been accomplished within the stipulated time. Such infringement is termed as a late transposition of a directive. Third, a breach termed as not properly incorporated could have taken place. In such instances, the Member State had transposed a Directive into its national law. However, the law so enacted would have failed to sufficiently reflect the content of the Directive. This would render the new law incomplete or incorrect. 33 In addition, Directives after being transposed have become the national law. Thus, any inconsistency between the provisions of the transposed law and other domestic law is to be addressed within the national law. If a Member State adopts a passive attitude towards a Directive, then this could be deemed to be an infringement of European Law.34 While implementing Directives, a Member State is obliged to take action against violators and to ensure the individual rights of the violators’ victims. Non – application has to be dealt with by the domestic law and not the Community Law, due to the fact that the Directive had been transposed and implemented under domestic law. 35 Moreover, the ECJ is empowered, under the primary European Law, to determine that a Member State is guilty of infringing EC Law. Such a Member State is required to act as per the ruling given by the ECJ. Failure to do so within the specified time constitutes an infringement of European legislation, and this is termed as judgements not yet complied with. 36 The benefits provided by these agreements in the EU were seen to be the result of international cooperation. If such mechanisms were to be absent, there could be serious deterioration. For instance, in the free movement of goods, the absence of such mechanisms could lead to the partial blocking of imports by a Member State. 37 This in turn could provoke the other Member States to resort to the same measures. Such measures and counter measures would seriously affect free trade in the EU. A few of the producers in the EU would make profits in excess of competitive profits, whereas the consumers of the EU would be the losers. 38 In addition, public interest group litigation has assumed importance after the supremacy of European Law had been established. Such litigation before the domestic courts has been termed as a useful device of decentralised law enforcement. It has been held to be capable of addressing compliance issues. 39 For instance in the Member States of France, Germany and the Netherlands, an attempt was made by environmental organisations to implement the chief provisions of some Directives. In this context these organisations approached their national courts. 40 The legal integration of the EU was principally effected by the ECJ’s declaration regarding the direct effect of Directives and supremacy of Community Law, in the 1960s. Thereafter, legal integration proceeded with great consistency, as the courts of first instance in the various Member States implemented the supremacy of Community Law.41 However, the ECJ does not enjoy the status of a supreme court in a unified system. A significant amount of negotiation takes place between the ECJ and the domestic courts. European legislation is the outcome of various negotiations. These provisions of the law, serve to improve the welfare of the EU. Nevertheless, competent enforcement systems are necessary. This is due to the fact that these agreements are not self – enforcing. Moreover, infringements lead to a reduction in the welfare of the EU. According to the preceding discussion, it can be surmised that the extant enforcement mechanisms of the European Union are not entirely satisfactory. Bibliography Cases Case 26/62 NV Algemene Transport- en ExpeditieOnderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR I – 1. Case C – 374/87 Orkem v Commission of the European Communities [1989] ECR I – 3283. Case C – 392/93 The Queen v H. M. Treasury, ex parte British Telecommunications plc[1996] ECR I – 1631. Joined Cases C – 6/90 and C – 9/90 Andrea Francovich and DanilaBonifaci and others v Italian Republic [1991] ECR I – 5357. Joined cases C – 46/93 and C – 48/93Brasserie du Pecheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I –1029. Books Chalmers D, Davies G, and Monti G, European Union Law: Cases and Materials (Cambridge University Press 2010). Roosebeke BV, State Liability for Breaches of European Law: An Economic Analysis (DUV 2007). Journal Articles ERGUN CE, ‘Private Model of Enforcement in European Union Law’ (2004) 1(2) Ankara Law Review 253. Slepcevic R, ‘The judicial enforcement of EU law through national courts: possibilities and limits’ (2009) 16(3) Journal of European Public Policy 378. Tallberg J, ‘Supranational influence in EU enforcement: the ECJ and the principle of state liability’ (2000) 7(1) Journal of European Public Policy 104. Websites Carrera S and Atger AF, ‘L’affaire des Roms A Challenge to the EU’s Area of Freedom, Security and Justice’ (CEPS Paper in Liberty and Security in Europe, September 2010) accessed 24 December 2011 ‘Enforcement of EU law’ (Eurofound, 30 November 2010) accessed 16 December 2011 Jacobs F, ‘The European Union and the Rule of Law’ (Holdsworth Club Presidential Address, 9 November 2007) accessed 17 December 2011 ‘Judicial review and the rights of private parties in EU law’ accessed 16 December 2011 Sweet AS, ‘The European Court of Justice and the Judicialization of EU Governance’ (Yale Law School Legal Scholarship Repository, 2010) accessed 16 December 2011 Read More