By Pedro Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)
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The European Commission is regarded as the “Guardian of the Treaties” in the Treaty on the European Union (TEU), and according to its most recent Communication last October 13, it plans to ensure its own role with both a helping hand and watchful eye, all while honouring democratic transparency and (especially) EU law.
The Communication “Enforcing EU law for a Europe that delivers”[1] draws on the fact that the EU is an established community of both law and values. It reminds us that the EU’s best asset is its ability to create a homogenous background for its citizens and businesses alike. EU law lays the foundation and groundwork for a well-functioning internal market, for a more digital and greener Europe, ensures and promotes European values, provides for effective judicial cooperation, security and ultimately succeeds in showing the world the bastion of justice, democracy, and respect for fundamental rights. And bearing the responsibility as the Guardian of the Treaties and EU law, in its own words: “The Commission is committed to stepping up its work to promote and uphold people’s rights, fundamental freedoms and the rule of law.”
It seems obvious that the Commission’s intentions, regarding ensuring the correct implementation of EU law, are surely based on the belief that such laws carry with them benefits. In the wide range of its policies, non-compliance with EU law can mean that the European citizen can be left in a position of narrower scope of protection or even a complete lack of protection. Whether through incorrect application of EU law or mere incomplete application, non-compliance carries the burden of inferior protection against fundamental rights. Rights such as freedom of movement, equal treatment, media independence, judicial independence and, ultimately, the entire legal framework conceived in EU policies and, most importantly, the set of rules and values that culminate in the establishment of the rule of law provided for in the founding Treaties.
The Communication puts the cost of incorrect or incomplete application of the rules into context. It starts with the single market, stating that improper application of the EU Treaties and legislation has detrimental impacts on the European Market. It particularly affects start-ups and small and medium-sized enterprises, whose dimension leads to more complex administrative burdens when crossing borders if the legal framework is not compliant. It is also especially noticeable in cross-border regions, something that, in the context of a geographically complex Europe, is very prevalent. It also reminds us that lack of application of competition rules undermines a level playing field for businesses and could mean that consumers may face higher prices and less choice. Regarding environmental policies and law, one would be wrong to assume that the only advantage would be merely and exclusively environmental. All of these create new jobs and opportunities, while improving competitiveness and saving up to €55 billion a year in health costs and direct costs to the environment.
The Communication highlights a set of examples both of successful EU legislation helping businesses and citizens and of cases where EU legislation has been misinterpreted, not implemented, or incorrectly applied. These examples are set to show that the legal certainty of a homogenous EU legal framework benefits people and businesses in national institutions and the EU at large. However, none of this would be possible without close cooperation based on transparency, goodwill, and commitment between both the Commission and the national authorities responsible for the application and enforcement of law, as well as the involvement of the general public, including civil society and others who may be able to identify potential breaches.
The Commission highlights the importance of national courts for the application of EU law, considering that such courts are functioning EU courts while applying EU law and are therefore essential in the enforcement chain. All EU courts must respect the principle of effective judicial protection – as it is foreseen in the Article 19 of the Treaty on European Union and in the Article 47 of the Charter of Fundamental Rights – and must be established by law and remain independent. The possible dialogue between national courts and the Court of Justice of European Union (CJEU) adds to the uniform application and interpretation of EU law and leads to an obligation on the part of the Member State to remedy the breach of law in the particular case.
The Commission also points out the national parliament’s role in working together with national governments in transposing EU directives and facilitating the implementation of regulations through national legislation. The national legislators have an evident crucial role in ensuring that EU law is transposed timely and thoroughly. Other key bodies whose work is essential in enforcing EU law are mentioned as well, such as inspection and enforcement bodies, national and regional supervisory authorities, prosecutors, national ombudspersons, equality bodies – and the role of the European Consumer Centres which are interested in identifying breaches of EU consumer law is highlighted.
In any event, it should be considered that the Commission’s strategy on EU law enforcement seems to have entered a new chapter. After all, this could very well be the main point of the Communication in the first place. A new era based on constant and mutual dialogue and cooperation. Even perhaps motivated by the experience of failed strategies merely reliant on the coercive power of infringement proceedings, now understood as a last resort after exhausting all other possibilities based on negotiation.
The Commission plans to prevent violations of EU law before they even happen. The plan is to anticipate and deter infringements from occurring, especially when the Commission is able to identify the main challenges Member States face in transposing and applying EU law from the outset. To facilitate interpretation and application the Commission provides practical guidance that may come via guidelines or “frequently asked questions” that are published online. Two examples are: i)the Commission’s guidance on the application of Article 17 of the Copyright Directive to facilitate interpretation of EU law, and ii) the Commission’s guidance on regarding the Mobility Package Directive considering the complexity of the liability of smart driving.
Meeting-based tools are also essential to promote implementation of EU law in all policy areas, committees, networks, expert groups and workshops set the example for such practices. The Commission is also currently using IT to identify implementation difficulties, a fact that shows that a digital transition in all areas of life in Europe is already underway and does not leave the development of laws behind – on the contrary, it adds to and facilitates it. Both IT application and a closer relationship between the Commission and the Member States are being progressively worked upon and are increasingly more common, given the fact that anticipating breaches of law is way more effective than correcting them after harm has been done.
Another key part of EU law enforcement is funding – and the Commission recognises that this is a key incentive for Member States to carry out reforms and accelerate achievements of the objectives created in EU legislation. Considering the current occurring application of the Recovery and Resilience Facility designed to mitigate economic and social harm brought by the coronavirus, funding takes on a whole new level of importance. The Conditional Regulation[2] mechanism in force since January 2021 considers the rule of law as a crucial component for the proper financial management of the EU budget. In one word: no rule of law, no money. And one would be wrong to consider that such a regulation would be empty words left in the pages of the legislation lacking real application. On September 18, 2022, the Commission proposed to the Council[3] under the Conditionality Regulation a 65% suspension of the commitments for three operational programmes under cohesion policy directed to Hungary – a very considerable amount of EUR 7.5 billion.
The Commission also draws attention to the success of increasing transparency in the state of application of EU law. In fact, this transparency – which may come as a report or as a result of an audit – adds to the functioning of democratic institutions, as the public is aware of how their Member State is performing in relation to EU law. Audits that evaluate performance in key policies such as food safety, fisheries and in the field of agriculture ensure a set of recommendations as a result of the assessment, something that has proven very effective for compliance over the years.
The EU also has a vast offering of reports, as i) the Schengen evaluation, a monitoring mechanism that identifies shortcomings in the application of Schengen rules, a cornerstone in EU integration, and ii) the annual rule of law report, which evaluates four key pillars for the rule of law in the Member States – justice systems, anti-corruption framework, media pluralism and freedom and other institutional issues regarding checks and balances.[4]
As a matter of fact, the Commission strategy regarding infringement proceedings, a mechanism that ultimately may lead to economic sanctions, is taking a new route. If all the efforts discussed above that anticipate a moment of breach in EU law fail, the Commission does not immediately rush to an infringement proceedings. A pre-infringement process referred to as EU Pilot is used when it offers added value. In fact, in 2021 out of 302 infringement cases opened by the Commission, 33 were preceded by EU Pilot processes. It is used so that the breach is corrected without the need to move to an infringement procedure, ideal for breaches regarding technical nature. It is not, however, used where the breach is obvious, well evidenced, self-acknowledged or for more sensitive issues where discussions at a technical level are less likely to lead to a successful outcome. If an unnecessary delay comes as a result of the EU Pilot, as in cases where the Member State fails to show cooperation, the Commission terminates the EU Pilot project and proceeds to an infringement proceeding.
However, the Communication states that 90% of the infringements are settled before being referred to the CJEU, either by a letter of formal notice or closed after a reasoned opinion, something that ensures faster compliance, and saves both time and money. Indeed, given the fact that the Commission receives roughly over 4000 complaints each year, closer cooperation between the Member States and the Commission based on transparency and trust that would solve the breach without a proper infringement case is essential to diminish negative impact on businesses, citizens and Member States.
The Commission is trying its best to increasingly focus its efforts on issues where interventions by means of infringement proceedings can maximise added value and make a difference to the lives and activities of as many people as possible. The primary purpose of the infringement proceedings is to ensure that the Members States comply with EU law in the general interest, not to provide individual redress, which means that these proceedings rarely focus on individual issues but rather on systemic and structural issues affecting many people or businesses in a given Member State or across the Union. This is why the Commission gives priority to infringements which affect the ability of national judicial systems to contribute to the effective application of EU law.
The Communication does not conclude without mentioning the confidence needed to react to crises. And Covid-19 and the Russian Federation’s aggression towards Ukraine serve as the perfect example of why European cooperation and block response serve a bigger purpose. And effective EU law remains key for people and businesses to ensure continued protection and the legal certainty offered by the EU.
This is the Commission’s message: the EU is not built from the top down, but exactly the opposite – from the people to its institutions. And the Commission approach seems to show precisely that – it distances itself from a position of merely dictating rules and enforcing them through the CJEU and the legal framework. The table is set for communication for comprehension, discussion, and dialogue. This is no time for fragmentation within the EU, nor for wars between the Commission and Member States, not while its citizens are bombarded by successive crises.
And in Ursula von der Leyen’s recent words in her 2022 State of the Union Address[5]: “And through the adversities of these times, we have started to see what our new horizon might be. A braver Union. Closer to its people in times of need. Bolder in responding to historic challenges and daily concerns of Europeans. And to walk at their side when they deal with the big trials of life.”
[1] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Enforcing EU law for a Europe that delivers, Brussels, 13.10.2022 COM(2022) 518 final. https://ec.europa.eu/info/files/communication-commission-enforcing-eu-law-europe-delivers_en
[2] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32020R2092
[3] EU budget: Commission proposes measures to the Council under the conditionality regulation, European Commission, 22 September 2022.
https://ec.europa.eu/commission/presscorner/detail/en/IP_22_5623
[4] Rule of law mechanism, European Commission.
[5] 2022 State of the Union Address by President von der Leyen, European Commission, 14 September 2022.
https://ec.europa.eu/commission/presscorner/detail/ov/speech_22_5493
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