Selective Enforcement of EU Law by the Commission under Articles 226 and 228 EC

The European Commission, as ‘ Guardian of the Treaties ‘ has been given the role of supervising and enforcing the implementation of EU law. Under Article 211 of the EC Treaty ⁱ, the Commission has the general, and potentially far reaching power, to ‘ ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied. ‘ The treaty provides a number of mechanisms under which the Commission can perform this function, but the most important, and most commonly relied upon, is the procedure set up under Article 226 ⁱⁱ, which states:

If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter…

If the State concerned does not comply with the opinion [the Commission] may bring the matter before the Court of Justice.

Under Article 228, the Member State must comply with the ECJ ruling on the matter, and if it fails to do so the Court may impose a lump sum or penalty payment ⁱⁱⁱ.

The Article 226 procedure can apply to any duty imposed on a Member State under any provision of EU law. Because of the potential for literally thousands of breaches of varying degrees of seriousness across the EU at any one time, the Commission is given discretion in choosing not only how it enforces the law, but also, against whom it will initiate enforcement proceedings. This is known as the power of selective enforcement and has been harshly criticised by some as a violation of the principles of ‘equal justice under the law and non-discrimination ^iv.

However, it has also been said that to obligate the Commission to investigate and enforce every single compliance complaint it receives would dissipate its resources and destroy its effectiveness as an enforcement agency. Like all enforcement agencies, the Commission must be able to set priorities and strategically target the breaches of EU law that it is going use enforcement mechanisms against, based on the importance of the breach in the eyes of the Commission, and the likelihood of success.

The Commission receives complaints not only from Member State governments, but also from individual natural and legal persons. Such complaints are unlikely to be neutral. Many industries and interest groups within the EU have powerful lobbying and advocacy resources that can generate many complaints against breaches that affect their interests. At the same time, those most need of the enforcement of EU law may be unaware of their legal rights and may lack the resources and expertise to make a complaint.

It has also been pointed out that the 226 procedure retains much of its influence and impact because of the restraint exercised by the Commission in its use ^v. An increase in the frequency of 226 proceedings, it has been said, would deprive the Commission of the symbolic force and authority of its reasoned opinions. Under Article 226, a Member State that disagrees with a Commission opinion can argue the matter before the ECJ. At present however, Member States often comply with Commission opinions as if they had judicial authority solely because the Commission uses them sparingly, and only for the breaches that have been identified as the most serious. A significant increase in opinions, would lead to an increase in litigation before the ECJ, with the result that the Commission reasoned opinion would lose its authority and be seen as just one side of an argument to be decided by the ECJ.

Selective enforcement is recognised as sound enforcement practice in a number of law enforcement environments. All enforcement agencies have limited resources and need to maximise their effectiveness given the staffing and budgetary restraints under which they operate. They also need to target the breaches that they believe they can prove and win a court ruling on if challenged. Also, under the principals of subsidiarity and proportionality, the Commission is obliged not to intervene in areas more appropriately addressed at different levels or in different ways. The ECJ has upheld the Commission’s discretion in bringing enforcement actions ^vi and the Commission itself places great importance on the discretion it enjoys.

However, selective enforcement raises a number of difficult issues. Extra-legal pressures can influence Commission decisions and decisions to initiate or abandon enforcement actions can have highly political results. The practice also leaves the Commission open to accusations of arbitrary action and political motivation. For this reason, the Commission has established criteria for when action will be pursued and has made these criteria public ^vii. Under these criteria, the Commission will enforce vigorously, breaches that: undermine the principles of primacy and uniformity of EU law; breach human rights and fundamental freedoms; impact seriously on Community financial interests; impact on important areas of exclusive Community competence; represent a repeated or systematic breach; have cross-border implications; breach an ECJ ruling upholding a Commission reasoned opinion; or fail to transpose an Directive conferring rights on citizens ^viii.

The main criticism of these criteria is that they are in no way legally binding. The decision to issue the criteria in a communication rather than as a binding piece of legislation signals to many that the Commission is not committed to improving the transparency and reducing the arbitrariness of enforcement proceedings. Communications of this kind have frequently been issued as a response to academic or public pressure or to respond to Ombudsman statements and many see them as little more than public relations exercises.

This soft law approach should be seen as an inadequate response to the difficulties that face the Commission’s selective enforcement methods ^ix. The Article 226 & 228 procedure is of enormous importance, both to the EU system as a whole, and to respect for Member State sovereignty. The procedure is key to the EU constitutional framework, while also having a hugely practical impact. However, the law in this area is still limited to a couple of brief lines in the EC Treaty. More should be done to formalise the application of the procedure and to provide certainty to Member States and uniformity before the law. Until this is done, the Commission will not be able to exercise its function as Guardian of the Treaties in a transparent, impartial and effective manner.

Bibliography
Treaties and EU Official Documentation
Treaty Establishing the European Community, 10 Nov 1997, 1997 OJ (C 340) 185

Treaty establishing the European Atomic Energy Community (EURATOM) 25 Mar 1957, 298 UNTS 167

Commission Communication, Better Monitoring of the Application of Community Law, COM(02)725 final

Commission Communication, Relations with the Complainant in Respect of Infringements of Community Law, 2002 O.J. (C 244) 5

Journal Articles
H. Audretsch, Supervision in European Community Law: Observance by Member States of their Treaty Obligations: A Treatise on International and Supra-National Supervision, 2nd ed. 1986

Alberto J. Gil Ibanez, The Standard Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228,

Roland Bieber, Case Comment, 30 CML Rev. 1207 (1993)

Case Law
C-52/90, Commission v Kingdom of Denmark [1992], I-2187

Case C-362/90, Commission v Italian Republic [1992], I-2353

Case C-422/92, Commission v Germany, 1995 ECR I-1097

ⁱ Treaty Establishing the European Community, 10 Nov 1997, 1997 OJ (C 340) 185
ⁱⁱ H. Audretsch, Supervision in European Community Law: Observance by Member States of their Treaty Obligations: A Treatise on International and Supra-National Supervision, 2nd ed. 1986
ⁱⁱⁱ The European Commission has been given a similar supervisory and enforcement role under the Treaty establishing the European Atomic Energy Community (EURATOM) 25 Mar 1957, 298 UNTS 167, Article 141
^iv Alberto J. Gil Ibanez, The Standard Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228,
^v Cf Roland Bieber, Comment on Case C-52/90, Commission v Kingdom of Denmark [1992], I-2187 and Case C-362/90, Commission v Italian Republic [1992], I-2353, 30 CML Rev. 1207 (1993)
^vi see Case C-422/92, Commission v Germany, 1995 ECR I-1097
^vii Better Monitoring of the Application of Community Law, COM(02)725 final
^viii ibid.
^ix The soft law in this area includes: the Commission Communication to the European Parliament and European Ombudsman on Relations with the Complainant in Respect of Infringements of Community Law, 2002 O.J. (C 244) 5, the Commission Communication on Better Monitoring of the Application of Community Law, COM(02)725 final, and the Commission’s internal rules of proceedings which are not published and whose legal force is unclear.