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The Watchdog is Still Watching – but the Oversight Rules have to be Reconsidered. Discussing Kelemen and Pavone’s Article

Massimo Condinanzi, Professor of EU Law, University of Milan and Coordinator of the National office for the resolution of infringement proceedings; Jacopo Alberti, Associate professor of EU Law, University Ferrara, Camilla Burelli, Research fellow in EU Law, University of Milan

Are we sure that the European Commission has loosened its approach in controlling Member States’ compliance with EU Law? Does the Commission’s double role (technical and political) really stand out as the most important downside of the current system of EU infringement proceedings?

The brilliant article published by Kelemen and Pavone sheds light on this crucial (and under-debated) part of the EU regulatory machinery. But their premise deserves a closer look.

While it is true that, in quantitative terms, EU infringement proceedings have been less frequent in recent decades, the numbers do not tell the full story. The European Commission also has “soft” ways to exercises its role as “guardian of the treaties”.

In Italy, for example, a complex mixture of requests for information, informal inspections, package meetings, and administrative letters (not really of a Valentine’s style) allow the European Commission to take the pulse, on a daily basis, of national compliance with EU Law. This underground flow of diplomatic and/or administrative relations may look opaque and questionable, but it is far from ineffective. And, effective and constant though it is, this informal exchange eludes any official statistics, often even falling outside the so-called ‘EU Pilot’ procedure, the system of bilateral dialogue aimed at preventing the formal launch of infringement proceedings.

What is more, even the claim that the European Commission has relaxed its use of formal infringement procedures it is not entirely true, especially since the von der Leyen Commission took office (in 2020 the number of new infringements has increased of +13% and that of new EU Pilot procedures of + 11%). Even during the first Italian COVID-19 lockdown, when administrative activities were essentially shut down, the Commission paused only briefly before taking action to initiate or aggravate infringement procedures against Italy. Taking a somewhat severe posture, the Commission focused particularly on the protection of citizens’ rights in times of pandemic disease (consider the infringement procedure for non-compliance with directives and regulations on travelers’ rights).

In recent years, the Commission has also called Italy through infringement procedures over quite ‘small’ violations of instrument rules, demonstrating the fact that the guardian of the treaties continues to perceive the procedure as one of its main tools against EU breaches (even negligible ones).

For the sake of clarity: being “big on big things”, as the Commission has described its approach to national supervision, does not mean that smaller, subtler, more technical infringements should not be prosecuted. Thorough and accurate enforcement has been an essential part of the development of European integration over the years. The internal market has been built and will keep evolving, ensuring a level playing field, including as concerns the technical details of each piece of EU legislation.

To this end, Kelemen and Pavone suggest insulating the enforcement function of the Commission from its policymaking role.

The idea is intriguing and well established in the academic and political debate. Some steps in this direction have perhaps already been taken, albeit outside the European Commission, namely through the delegation of controlling powers to some EU agencies on Member States’ compliance with specific fields of EU Law. But shifting this ‘revolution’ to a more general level and creating an independent authority to control the infringements of EU Law, could be highly problematic. First, this would undoubtedly require the revision of the existing treaties. Moreover, it is not unreasonable to assume that the Commission would accept this loss of technical function only together with a proportional enhancement of its political role, so as to become the (only) government of the EU. Yet it is not likely that many Member States would accept this idea.

In light of this, it is our view that a complete discussion on the infringement procedure must address, besides the mere numerical decrease in procedures, other and more challenging issues.

First and foremost among these is the Commission’s excessive discretion in the management of the infringement proceedings. According to this broad discretion, upheld by the EU Court of Justice since at least 1989, the Commission has no obligation whatsoever to open, continue or close a proceeding. The purpose of its discretion is to shield the Commission from formal conflicts with the Member States, but it runs the risk of seriously compromising its efficiency and its acceptance by society.

One danger is that each procedure has the potential to last for an indefinite time period, and, what’s worse, to outlast long periods without any activity from either party. Another issue is that proceedings are not always closed as soon as the violation is over. This happens when the Commission fears that similar infringements may arise again (Italy faces this situation in the cases involving applicants for international protection and airport charges) or when it awaits that all the Member States under investigation become simultaneously compliant (consider the so called Open Sky infringement procedure). If the opening of an infringement proceeding should be perceived by the Member States as shaming, then the latter shall have the right to have this dishonour lifted as soon as the violation is over.

The length of proceedings has a clear practical impact also on the efficiency of pecuniary sanctions, which are often imposed long after the first calling. In one case, concerning waste management in Campania, Italy was handed a pecuniary sanction 8 years after proceedings were opened, and at least a decade after the events that caused the violation. Italy has now been paying the same fine for 7 years, despite the fact that significant progress has been made to address the situation. To what extent will a penalty of this kind be perceived as legitimate by a government and a population that are working hard to tackle the issue?

On the flipside, however, there is a total lack of the discretion when it comes to the missed notification of the national measures transposing an EU Directive adopted under a legislative procedure. Here, the Commission opens infringement procedures automatically (even if the wording of Art. 260(3) TFEU does not explicitly state to do so) and keep them (unjustifiably?) open even after the notification, so as to assess whether the transposition has been made correctly. This clearly extend the length of the procedure and circumvent the right of the Member States to “submit [their] observations” before the formal opening of the infringement proceeding set forth by Art. 258 TFEU. The EU Court of Justice upheld this approach relying on (guess what?) the broad discretion enjoyed by the Commission; yet, it clearly undermines the sound and loyal cooperation between national lawmakers and the Commission.

Moving forward, a credible reform to enhance the infringement procedure in the short term is possible, and the Conference on the Future of Europe should certainly seize the opportunity to do so. However, attention should be drawn mainly to the discretionary powers of the Commission and the length of proceedings. Addressing these issues would not even require a treaty amendment, being achievable through simple regulations. Doing so would undoubtedly strengthen the general system of EU Law enforcement.

Suggested citation: Massimo Condinanzi, Jacopo Alberti & Camilla Burelli, The Watchdog is still Watching – but the Oversight Rules have to be Reconsidered. Discussing Kelemen and Pavone’s Article, Int’l J. Const. L. Blog, Feb. 24, 2022, at: http://www.iconnectblog.com/2022/02/the-watchdog-is-still-watching–but-the-oversight-rules-have-to-be-reconsidered-discussing-kelemen-and-pavones-article/

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Published on February 24, 2022
Author:          Filed under: Analysis
 

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