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Evaluation and the Salience of Infringement Data

Published online by Cambridge University Press:  20 January 2017

Melanie Smith
Melanie Smith*
Affiliation:
Cardiff School of Law and Politics
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Abstract

The infringement process contained in Article 258 TFEU requires the Commission, as guardian of the treaties, to monitor the performance of member states in relation to the implementation and application of EU norms. As the Commission carries out this duty it amasses enormous amounts of data on the realisation of policy objectives through its discovery of (non) implementation of EU norms and the administrative operation of its ‘compliance promoting tools’. This article explores the Commission's duty as guardian of the treaties through the lens of smart regulation and examines the potential for infringement data, and the infringement process more widely, to play a contributory role in executing meaningful evaluation in the policy cycle. The article will explore the extent to which the Commission has included infringement data as part of its policy cycle and in particular the evaluation process. It considers the multiple dimensions of accountability and institutional learning associated with evaluations and how these might be supported by the infringement mechanism. It argues that the infringement process and evaluations can be considered symbiotic with each process contributing to the accountability and institutional learning of the other.

Type
Symposium on Policy Evaluation in the EU
Information
European Journal of Risk Regulation , Volume 6 , Issue 1 , March 2015 , pp. 90 - 100
Copyright
Copyright © Cambridge University Press 2013

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References

1 The term intervention will be used interchangeably with policy and legislation throughout this article.

2 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Strengthening the foundations of Smart Regulation – improving evaluation COM (2013) 686 final at p. 5.

3 Ibid at p. 2, emphasis added by author.

4 Other authors discuss these two elements in greater detail see Steven Højlund, “Evaluation in the Commission – for accountability or learning?”, in this issue.

5 Art 2 TEU.

6 Non–notification is an infringement in itself. Even if the member state has transposed the Directive, but not notified the Commission or not responded to Commission enquiries about transposition, an infraction occurs. It also includes failure to uphold Treaty principles including the failure to observe the duty of sincere cooperation contained in Article 4 (3) TEU. For more detail see Damian Chalmers et al., European Union Law (2010), ch. 8.

7 If the member state does not remedy the infringement the Commission may refer the state to the ECJ for a second time under Article 260 TFEU to obtain a financial sanction.

8 Case 48/65 Lütticke v Commission [1966] ECR 19, Case 47/87 Star Fruit v Commission [1989] ECR 291.

9 Case T-105/95 WWF UK v Commission [1997] ECR II-313, Case T-309/97 Bavarian Lager Company v Commission [1999] ECR II-3217, Case T-191/99 Petrie and Others v Commission [2001] ECR-II 3677. In Case T-194/04 Bavarian Lager v Commission [2007] ECR II-4523 the Court confirmed that documents relating to a case that had been closed six years previously could be released in certain circumstances and in Case C-514/07 API and Sweden v Commission [2010] ECR I-8533 that documents would not be protected once the ECJ had handed down a judgment on that case.

10 Rawlings, Richard, “Engaged Elites: Citizen Action and Institutional Attitudes in Commission Enforcement”, 6 European Law Journal (2000), pp. 4 et sqq. CrossRefGoogle Scholar; Smith, Melanie, “Enforcement, monitoring, verification, outsourcing: the decline and decline of the infringement process”, 33 European Law Review (2008) pp. 777 et sqq. Google Scholar; European Parliament Resolution of 25 November 2010 on the 26th Annual Report on Monitoring the Application of European Union Law (2008) (2010/2076) P7_TAPROV (2010)0437; Smith, Melanie, “The Evolution of Infringement and Sanction Procedures: of pilots, collisions, diversions and circling”, in Arnull, Anthony and Chalmers, Damian (eds.), Oxford Handbook of EU Law (Oxford: OUP 2015).Google Scholar

11 European Commission Public Consultation on Commission Guidelines for Evaluation November 2013 at p. 7 http://ec.europa.eu/smart-regulation/evaluation/docs/20131111_guidelines_pc _part_i_ii_clean.pdf.

12 Public consultation on Commission guidelines, ibid., note 11, at p. 15.

13 Ibid., at p. 7.

14 Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions Regulatory Fitness and Performance (REFIT): Results and Next Steps (2013) COM 685 at p. 11.

15 Commission Staff Working Document Regulatory Fitness and Performance Programme (REFIT): Initial Results of Mapping the Acquis SWD(2013) 401 final.

16 Ibid., Directive 2008/104/EC on temporary agency work at p. 41.

17 DG Employment would review all the collective overlapping measures concerning health and safety measures, ibid. at p. 42.

18 Ibid. at p. 72, excluding UK, Ireland and Denmark who have opted out of these provisions by virtue of Protocol 21 and 22 on the Area of Freedom Security and Justice.

19 European Commission Impact Assessment Guidelines SEC (2009) 92 at p. 44.

20 Croatia is not yet part of this database system.

21 Commission Communication Updating the handling of relations with the complainant in respect of the application of Union law COM (2012) 154. It is in relation to adherence to these guidelines the Commission often finds itself in trouble with the Ombudsman in respect of ‘maladministration’, inter alia, for not registering complaints in CHAP for example, but also for a lack of reasoning when closing a file, not notifying complainants of its decisions, not launching infringement proceedings, taking too long to take a decision and so on, see Rawlings, ‘Engaged Elites’, supra note 11.

22 See for example Commission Communication A Europe of Results – Applying Community Law COM (2007) 502 final.

23 As a result of this focus, the Commission has campaigned for new powers in relation to non–notification of transposition of directives which were finally realized in the Lisbon Treaty via the amendment to Article 260. Since this new power has been introduced late transpositions have fallen rapidly with 1,185 in 2011 but only 447 recorded in 2012. There has also been an increase in efficiency of processing these cases with a 45 % decrease in open cases between 2011 and 2012.

24 Directive 2010/31/EU on the energy performance of buildings OJ L 153/13.

25 This is why such data is less appropriate for assessing impacts.

26 See for example Börzel, Tania A et al., “Obstinate and Inefficient: Why Member States do not comply with European Law”, 43 Comparative Political Studies (2010), pp. 1363 et sq.;CrossRefGoogle Scholar, Faulkner, Gerda et al., “Three Worlds of Compliance or Four? The EU-15 Compared to the New Member States”, 46 Journal of Common Market Studies (2008), pp. 293 et sqq. CrossRefGoogle Scholar

27 Improving evaluation, supra note 3 at p. 6.

28 There has been a rather late re–branding of it as part of the smart regulation programme although it is yet to be fully exploited to form a useful element of evaluations. The reason for introducing EU Pilot was to better manage the Commission's infringement work in light of the big expansion to the EU in 2005.

29 Report from the Commission Second Evaluation Report of EU Pilot SEC (2011) 1629/2, at p. 4.

30 Clearly if these complaints relate to only one or two member states who have a history of non-compliance with environmental legislation then it does not indicate a broader need for an evaluation, rather it is an isolated problem of compliance. Even in these situations, integrating this ‘failure’ into an evaluation going forward may indicate a need to adopt different enforcement mechanisms to ensure even ‘problem’ states are encouraged to comply swiftly.

31 The Commission's method of reporting does not allow public tracking of which specific files in EU Pilot ended up converting to the infringement proceedings (only statistics are provided), so examples of which specific instruments were the subject matter of persistent non–compliance cannot be provided.

32 Framework Agreement on relations between the European Parliament and the European Commission OJ L 304/10 s 44 where the institutions committed to ensuring member states provided ‘information’ as opposed to a concordance table.

33 On Parliament's role, see Melanie Smith ‘Accountability in issue: the Commission, the Parliament and centralised enforcement of EU law’ (forthcoming).

34 Public consultation on Commission guidelines, supra note 12 at p. 39. Although technically this is more of a REFIT exercise than something akin to a conformity checking study which tends to concentrate on individual measures.

35 Public consultation on Commission guidelines, supra note 12 at p. 39. Not individual complaints however because the Commission favours decentralized enforcement, see below on bespoke enforcement provisions.

36 COM(2013)920.

37 COM(2013)547.

38 COM(2013)404.

39 Improving evaluation, supra note 3 at p. 9. Implementation Reports usually happen 3-5 years after the intervention and looks at compliance beyond narrow legal compliance.

40 Impact Assessment Guidelines, supra note 19, at p. 44.

41 For example in the context of competition law, public procurement and so on.

42 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States COM (2008) 0840 final.

43 Regulation 1049/2001 regarding public access to European Parliament, Council and Commission. documents OJ L 145/43 and for the reports see http://ec.europa.eu/transparency/access_documents/reports_en.htm.