Enforcement Actions under EU Law: The New Member States

Lora Borissova
ISBN 13 EIPA Code #: 2007/W/01 Year: 2007 Pages: 20 Digital: 0 €

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Through the infringement procedure, provided for by Article 226 of the Treaty establishing the European Community (TEC), the Commission can stimulate Member States to comply effectively with their obligations under Community law. In cases of non-compliance, the Commission may bring Member States before the Court of Justice of the EC (ECJ). Indeed, the Commission may use this possibility because it is the "guardian of the Treaty" and has to ensure the proper application of Community law, in line with Article 211 TEC.
The White Paper on European Governance published by the Commission in 2001 emphasises that the primary responsibility for applying Community law lies with national administrations and courts in the Member States. Therefore, the primary objective of enforcement actions against Member States is to monitor their compliance and to respond to cases of non-compliance. However, through adequate exercise of its discretion and improved cooperation with Member States, the Commission aims to encourage them to comply voluntarily with Community law as quickly as possible. Furthermore, under the current Commission's strategic objectives for the period 2005-2009, prompt and adequate transposition and vigorous pursuit of infringements are considered critical to the credibility of European legislation and the effectiveness of policies.
The infringement procedure is of crucial importance to the new Member States and of high relevance to the candidate countries that have applied for accession to the EU. On the one hand, they have to adopt the whole acquis upon accession with only few transitional periods granted in a limited number of areas. New Member States have already submitted a large number of transposition notifications to the Commission. On the other hand and despite their huge efforts, new Member States experience considerable difficulties in implementing directives and other EC legislative instruments. The process of implementation is a challenging stumbling block for all new Member States.
This paper will focus on the recent and main trends in the application of enforcement actions against new Member States, not only taking an empirical angle (infringements by Member States and by sectors) but also involving analytical reasoning. This analysis serves to present the fundamentals and relevance of the infringement procedure in the framework of the enlarged European Union (the object of the first part of this paper) where administrations of the new Member States will have to adopt this new way of thinking and of implementing know-how (addressed in the second part) while acquiring a better understanding of the principal characteristics of the EC/EU's legal system (direct effect, supremacy, indirect effect, state liability) and of the EC's general principles of law. Therefore, the second part of the paper will also focus on justifications deemed acceptable by the ECJ and others that are considered inadmissible.
New Member States have to adjust to the requirements of the acquis (possibilities of opting out are not included in the Accession Treaties) and this obligation applies to all independent state institutions (including the judiciary where reforms represent a prerequisite for accession by some candidate countries). Efficient further implementation of the acquis and adequate understanding of the infringement procedure will facilitate new Member States' (and candidate countries') integration in the EU and, eventually, make their accession a success.