ENFORCEMENT OF EU LAW THE NEW AGENDA

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ENFORCEMENT OF EU LAW- THE NEW AGENDA

• Richard Macrory
• UCL Faculty Seminar Oct 2009

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Focus on European Commission Enforcement Role
against Member States

• Article 226 and 228 the formal mechanisms
• Unique in supra-national legal systems
• Three stage formal procedure
• Letter of Formal Notice
• Reasoned Opinion
• ECJ (over 90 cases closed before getting
  to this stage)

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Three types of infringement (as characterized by
Commission)

• Non-transposition (missing deadline date for
  Directive)
• Non-conformity (national measures fail to reflect
  Directive)
• Non-application in practice (could apply to both
  Directives and Regulations)
• outside competition/nuclear./fisheries, no
  direct power of inspection. Heavily dependent on
  complaint system/petitions to European parliament
  to alert of cases of non-implementation

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Environment heavily proportion of Commission cases

• Around 3200 files overall
• Over 20 environment
• complaints - around 40 of all complaints
• Petitions to Parliament - around 35

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Commission Environment Strategies

• 1980-1990 DG Environment will handle everything
  and not appropriate to give priorities
• 1996 DG Environment Communication on Implementing
  Environmental Law
• 2005- 27 Member States plus every more complex
  laws makes former approach impossible

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Europe of Results 2007 Prioritization

• Non-communication
• Non-respect of ECJ judgments
• Breaches of Community law (including
  non-conformity) (i) raising issues of principle
  (ii) having far reaching negative impacts for
  citizens

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DG Environment EUROPE OF RESULTS 2008Priorities

• Non-communication
• Non-respect of ECJ judgments
• Non-conformity of key EC laws presenting
  significant risk of non-implementation
• Systematic breaches raising serious consequences
  or risk to human health or nature of high
  ecological value
• Breaches of core obligations on which other
  obligations depend (e.g. failure to designate)
• Breaches concerning big infrastructure projects
  or interventions with EC financing

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European Commission Infringement Procedures

• I welcome some aspects of general thrust of new
  approach, though number of improvements could be
  made
• Clearly a different sort of sanctioning system,
  and certain aspects of Macrory review do not read
  across
• But aspects of principles of regulatory
  governance may be relevant to Commissions own
  procedures - see suggestions in last part of
  presentation

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ENFORCEMENT POLICY

• All regulators exercise some form of discretion
• Enforcement Policy gives general guidance on
  priorities and approach
• During Cabinet Office Review only 15 out of 61
  national regulators had published policy
• Now a statutory requirement under Regulatory
  Enforcement and Sanctions Act 2008 for any
  regulator seeking new sanctioning powers
• Note more elaborate enforcement policies from
  Commission in Competition Law
• Commissions new documentation in effect an
  enforcement policy concerning Member States

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Formal Implementation

• Focus on notification and correct transposition
  into national systems sensible principle.
  Commission new focus on core directives a concern
  (devil in the detail)
• More systematic provision of draft national
  legislation and comment by Commission and
  pre-guidance once legislation or even secondary
  regulations in place, Member State will defend
  vigorously - much easier to change drafts
• Member States should be obliged to provide
  concordance tables for national transposition.
  Member State should not feel they must copy out
  directives but any rationale for significance
  difference in wording to be explained in table.
• Tables to be made publicly available - helps
  engage national interests and national courts

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Non-application in Practice

• Non-application in practice can often be handled
  at national court level but not always. Still an
  important role for Commission.
• Evaluating evidence very long-winded - direct
  inspection powers across the board such as in
  fisheries, nuclear politically unlikely.
• Initial fact-finding should be coordinated by
  Commission offices within Member States, and only
  then dossier sent to Brussels
• Look to 2003 reform of competition enforcement -
  clearer partnership approach between national
  regulators and Commission

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Complaint System

• Complaint system important and often only means
  for Commission to know what is happening on the
  ground but can lead to reactive rather than
  proactive system
• New strategy indicate to complainants that
  certain types of cases will be handling more
  swiftly.
• Commission Code of Practice that all complaints
  will be examined.
• European Ombudsman has increasingly given more
  rights to complainants (rights of notifications
  etc)
• I challenge whether complainants should be given
  heightened status whether legally or
  administratively. This is not a means of redress
  but mechanism for alerting Commission.

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A Europe of Results 2007 Secretary General

• All complaints will be dealt with
• Prioritization means some will be dealt with more
  intensively and more immediately
• But does this align with Code of Good Conduct
  (answer with 15 days)?

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Macrory principles applicable to Commission
itself

• Transparency Once formal letter issued, as
  transparent as possible in user friendly way.
  When cases settled, outcome of settlement should
  be summarized and available to everyone (not just
  complainant where there is one)
• Details of outputs (both in qualitative summaries
  but also raw data) should be made available
  publicly
• Develop robust outcome measurements - what goal
  is being sort?

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Macrory principles (2)

• Avoid internal targets than can distort internal
  discretion e.g. a core target based on reduction
  of complaints could lead officers to drop
  complaints to meet targets ditto a core internal
  target to speed up handling. Tail wagging the
  bureaucratic dog. Be careful.
• Ensure that complex, time-consuming cases are not
  automatically locked into time meeting targets
  generally. They should be listed separately, and
  probably treated on case by case basis rather
  than conglomerated.

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ECJ

• Time delays before cases reach European Court
  would be unacceptable in many national systems
• Much of delay not by Court but in pre-litigation
  phase
• Infringement proceedings not raising complex
  matters to Court of First Instance
• Where judgment against Member State, Commission
  should have power of inspection to ensure that
  judgment applied. Maybe more symbolic than real
  but limited direct inspection power should be
  politically acceptable to MS where judgment
  against them

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Relevance of UK Reforms to Commission

• Designs of regulatory and sanctioning system
  primarily a matter for Member States
• Many modern directives contain formula requiring
  MS to introduce effective, proportionate and
  dissuasive penalties - new approach suggest key
  elements
• Although sensitive, Commission has interest in MS
  delivery system as part of new enforcement
  agenda. This all relevant.
• Irish 2005 waste case - systematic failure of
  administration is a breach of EU law

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National Administrative systems

• Recent jurisprudence of the ECJ (French Fisheries
  and Irish Waste) clearly holds that an
  ineffective national administrative system for
  implementing EU derived laws is a failure in
  practice
• Commission will inevitably (and should) take an
  interest in national admin systems but without
  prescribing details (but could be some common
  principles of good regulatory governance)
• Under all Directives MS must communicate details
  of legislation, regulations, and administrative
  measures to Commission - we should gradually
  develop concept of admin measures to encompass
  administrative system to deliver.