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SABINO CASSESE

FOUR FEATURES OF THE EUROPEAN

ADMINISTRATIVE SPACE

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ABSTRACT

Prof. Sabino Cassese

This article focuses on four features of the European administrative space and

compare them with domestic administrative orders:

1. while domestic administrations depend on one centre - the president or the

cabinet - the European administration has not just one centre of power;

2. while domestic administrations have exclusive powers of implementation, the

European administration is not the only implementing authority of the EU;

3. while domestic administrative law is binomial (there are relations between two

poles, the executive and a private party), European administrative law is trinomial

(there are relations among the European Commission, national administrations

and private parties, and each may play multiple roles);

4. while domestic administrative law is usually a privileged branch of law, full of

executive prerogatives, in European administrative law the administration does

not generally enjoy special rights and privileges.

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Table of contents:

1. Introduction

2. The location of the executive power

3. A direct, unbroken chain of command?

4. Case C-8/88 and the responsibility of the national administrations to ensure

observance of the European rules

5. Polycentric adjudication

6. The Intermills case

7. A whole body of special rights, privileges or prerogatives?

Paper for the Connex thematic conference “Towards a European Administrative

Space”, Birbeck College, University of London, 16-18 November 2006

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1. Introduction

I shall focus on four important features of the European administrative space and

compare them with domestic administrative orders:

5. while domestic administrations depend on one centre - the president or the

cabinet - the European administration has not just one centre of power;

6. while domestic administrations have exclusive powers of implementation, the

European administration is not the only implementing authority of the EU;

7. while domestic administrative law is binomial (there are relations between two

poles, the executive and a private party), European administrative law is trinomial

(there are relations among the European Commission, national administrations

and private parties, and each may play multiple roles);

8. while domestic administrative law is usually a privileged branch of law, full of

executive prerogatives, in European administrative law the administration does

not generally enjoy special rights and privileges.

2. The location of the executive power

National States grow out of executive power. Legislative and judicial bodies are

subsequent additions (for example, in England there was a King; subsequently, in 1688, the

Glorious Revolution led to the recognition of the Parliament’s supremacy). The executive -

the president or the cabinet - is the sole centre of implementing power. There may be more

then one legislative body (two chambers) and more than just one judiciary (as in countries

with a dualistic system of courts). But there is only one executive (where there are regional

governments, they are subordinate to a central executive power).

Where is the executive power located in the EU?

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Let me read Article 202 of the EC Treaty: “to ensure that the objectives

set out in this Treaty are attained the Council shall, in accordance with

the provisions of this Treaty:

ensure coordination of the general economic policies of the Member

States,

have power to take decisions,

confer on the Commission, in the acts which the Council adopts,

powers for the implementation of the rules which the Council lays

down. The Council may impose certain requirements in respect of the

exercise of these powers. The Council may also reserve the right, in

specific cases, to exercise directly implementing powers itself. The

procedures referred to above must be consonant with principles and

rules to be laid down in advance by the Council, acting unanimously on

a proposal from the Commission and after obtaining the opinion of the

European Parliament.”

Compare the provision that the Council shall confer on the Commission the power to

implement the rules with art. II, sect.1 of the American Constitution, which provides: “the

executive power shall be vested in a President of the United States of America.”

Article. 211 of the EC Treaty provides: “in order to ensure the proper

functioning and development of the common market, the Commission

shall:

- ensure that the provisions of this Treaty and the measures taken by the

institutions pursuant thereto are applied,

- formulate recommendations or deliver opinions on matters dealt with

in this Treaty, if it expressly so provides or if the Commission considers

it necessary,

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- have its own power of decision and participate in the shaping of

measures taken by the Council and by the European Parliament in the

manner provided for in this Treaty,

- exercise the powers conferred on it by the Council for the

implementation of the rules laid down by the latter.”

From these provisions it follows that:

a. unlike domestic law, in European law there is no – one branch of government

entrusted with the task of implementing the rules;

b. two bodies, the Council and the Commission, exercise implementing power;

c. implementing power is nomadic, as the Council can confer such power on the

Commission or reserve it for itself;

d. the implementing power is not conferred upon the Commission by the EC

Treaty, but by the Council, on an ad hoc basis;

e. when the implementing power is conferred on the Commission, this body

must follow the requirements established by the Council.

It is important to note that the Council is an intergovernmental body, while only the

Commission is a purely European - that is supranational - authority.

Article 203 of the EC Treaty provides that: “the Council shall consist of

a representative of each Member State at ministerial level, authorised to

commit the government of that Member State. The office of President shall be

held in turn by each Member State in the Council for a term of six months in

the order decided by the Council acting unanimously.” For this reason, the

Council is a body “à geometrie variable.”

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Article 213. 1 and 2 provides: “the Commission shall consist of 20

Members, who shall be chosen on the grounds of their general competence

and whose independence is beyond doubt. The number of Members of the

Commission may be altered by the Council, acting unanimously. Only

nationals of Member States may be Members of the Commission. The

Commission must include at least one national of each of the Member States,

but may not include more than two Members having the nationality of the

same State. The Members of the Commission shall, in the general interest of

the Community, be completely independent in the performance of their duties.

In the performance of these duties, they shall neither seek nor take instructions

from any Government or from any other body. They shall refrain from any

action incompatible with their duties. Each Member State undertakes to

respect this principle and not to seek to influence the Members of the

Commission in the performance of their tasks. The Members of the

Commission may not, during their term of office, engage in any other

occupation, whether gainful or not. When entering upon their duties they shall

give a solemn undertaking that, both during and after their term of office, they

will respect the obligations arising there from and in particular their duty to

behave with integrity and discretion as regards the acceptance, after they have

ceased to hold office, of certain appointments or benefits. In the event of any

breach of these obligations, the Court of Justice may, on application by the

Council or the Commission, rule that the Member concerned be, according to

the circumstances, either compulsorily retired in accordance with Article 216

or deprived of his right to a pension or other benefits in its stead.”

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Article 214. 2 of the EC Treaty provides: “the Council, meeting in the

composition of Heads of State or Government and acting by a qualified

majority, shall nominate the person it intends to appoint as President of the

Commission; the nomination shall be approved by the European Parliament.

The Council, acting by a qualified majority and by common accord with the

nominee for President, shall adopt the list of the other persons whom it intends

to appoint as Members of the Commission, drawn up in accordance with the

proposals made by each Member State. The President and the other Members

of the Commission thus nominated shall be subject as a body to a vote of

approval by the European Parliament. After approval by the European

Parliament, the President and the other Members of the Commission shall be

appointed by the Council, acting by a qualified majority.”

One can draw two conclusions from these provisions:

a. the European executive has two “heads”;

b. there is a great difference between these two heads; the Council is an

intergovernmental body, while the Commission is a purely European

institution.

3. A direct, unbroken chain of command?

Inside the States, the administration usually has an exclusive power of

implementation. There is, therefore, an unbroken, direct chain of command which goes from

the President or the Cabinet to the bottom of the pyramid, as in the following passage from

one of the most important contributions of the “father” of British administrative law,

William A. Robson, Administrative Law, in M. Ginsberg (ed.), Law and Opinion in

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England in the 20th

Century, London, Stevens & Sons, 1959, p. 201-202 . “In case anyone

should imagine that an understanding of the proper nature and scope of administrative law

is a matter of academic interest only, I will recall an extraordinary incident which occurred

in 1942 during a secret session of Parliament. Mr. Winston Churchill (as he then was) was

explaining to an uneasy House of Commons why the Allied forces which had invaded

French North Africa had accepted the services of Admiral Darlan, who was closely

associated with the Vichy régime, and generally believed to be hostile to the Allied cause.

The Prime Minister told the Commons that the actions of many French officers and officials

were governed in times of stress and strain by a principle founded on droit administratif.

This highly legalistic attitude, he said, made their actions depend on the existence of a

direct, unbroken chain of lawful command linking those who wield power at any time with

those who previously were clothed with lawful authority. The French soldiers in the North

African theatre of war had joined forces with the Allied troops against the German and

Italian forces in accordance with the orders and authority issued by or declared to emanate

from Marshal Pétain. This, said Mr Churchill, was the justification for our using Darlan.

Even in a country which has never understood administrative law it was astonishing that the

Prime Minister should confuse droit administratif with legalité.”

Quite different is the picture of the implementing structure in the EU.

Article 10. 1 of the EC Treaty provides: “member States shall

take all appropriate measures, whether general or particular, to ensure

fulfilment of the obligations arising out of this Treaty or resulting from

action taken by the institutions of the Community. They shall facilitate

the achievement of the Community's tasks.”

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Article 5.2 of the EC Treaty provides that “in areas which do not

fall within its exclusive competence, the Community shall take action, in

accordance with the principle of subsidiarity, only if and in so far as

the objectives of the proposed action cannot be sufficiently achieved by

the Member States and can therefore, by reason of the scale or effects

of the proposed action, be better achieved by the Community.”

Declaration n. 43 annexed to the Amsterdam treaty provides that

“the High Contracting Parties confirm, on the one hand, the

Declaration on the implementation of Community law annexed to the

Final Act of the Treaty on European Union and, on the other, the

conclusions of the Essen European Council stating that the

administrative implementation of Community law shall in principle be

the responsibility of the Member States in accordance with their

constitutional arrangements. This shall not affect the supervisory,

monitoring and implementing powers of the Community Institutions as

provided under Articles 202 and 211 of the Treaty establishing the

European Community.”

Therefore:

a. domestic administrations must facilitate and implement European law;

b. the European administration has the power to implement European law only if the

scale or the effects of the proposed action makes State powers insufficient. The

implementing power of the EU is consequently residual and not monopolistic;

c. domestic administration is top-down; European administration is, by contrast,

bottom-up.

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4. Case C-8/88 and the responsibility of the national administrations to ensure

observance of the European rules

I now turn to Case C-8/88 (Federal Republic of Germany v. Commission [1990] ECR

I-0232), which considers the problem of national administrations as implementers of

European measures.

The main purpose of the European common agricultural policy is to adjust the supply

of food to the market requirements and to ensure a fair standard of living for the agricultural

community. For this purpose, European law provides for aid for not producing (for instance,

for setting land aside), for private storage and for the slaughter of sheep. The aid is granted

to national authorities, which pay premiums to lamb producers and pay premiums for the

maintenance of cow herds.

The European Commission had discovered that three German Länder had not

established procedures to check the use of the aids granted and the following question arose:

if European regulations do not establish an explicit obligation to supervise and inspect, are

domestic administrations still required to supervise and inspect the implementation of the

European Commission’s measures?

While the German government argued that this was an additional obligation that

could not be imposed upon the Member States, the CJ concluded that:

a. domestic administrations must set up comprehensive administrative checks in

order to guarantee the proper observance of the conditions for the grant of the

premiums;

b. all the Member States’ authorities are required to ensure observance of the

rules of Community law.

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It is important to note that the CJ reached these conclusions on the basis of the theory

of the implied powers (n. 16) and the principle of loyal cooperation (art. 10 of the EC

Treaty) (n. 20). The theory of implied powers, originally developed in American and

English law and later recognized in international law as well, was used by the CJ in its

narrow sense (the existence of a given power implies the existence of any other power

which is reasonably necessary for its exercise).

5. Polycentric adjudication

Domestic administrative law is centred on the relations between the administration

and private citizens. It is, therefore, binomial. Read A.V. Dicey, Introduction to the study of

the law of the constitution, X ed., London, MacMillan, 1961, p. 332-333 : “Droit

administratif, or ‘administrative law’, has been defined by French authorities in general

terms as ‘the body of rules which regulate the relations of the administration or of the

administrative authority towards private citizens’; and Aucoc in his work on droit

administratif describes his topic in this very general language: ‘Administrative law

determins the constitution and the relations of those organs of society which are charged

with the care of those interests (intérêts collectifs) which are the object of public

administration, by which term is meant the different representatives of society among which

the State is the most important, and the relation of the administrative authorities towards

the citizens of the State.”.

Again, European administrative law is different.

Take as an example Article 87. 1 of the EC Treaty: “save as otherwise

provided in this Treaty, any aid granted by a Member State or through State

resources in any form whatsoever which distorts or threatens to distort

competition by favouring certain undertakings or the production of certain

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goods shall, in so far as it affects trade between Member States, be

incompatible with the common market.”

Article 88. 1 and 2 of the EC Treaty provides :“the Commission shall,

in cooperation with Member States, keep under constant review all systems of

aid existing in those States. It shall propose to the latter any appropriate

measures required by the progressive development or by the functioning of the

common market. 2. If, after giving notice to the parties concerned to submit

their comments, the Commission finds that aid granted by a State or through

State resources is not compatible with the common market having regard to

Article 87, or that such aid is being misused, it shall decide that the State

concerned shall abolish or alter such aid within a period of time to be

determined by the Commission. If the State concerned does not comply with

this decision within the prescribed time, the Commission or any other

interested State may, in derogation from the provisions of Articles 226 and

227, refer the matter to the Court of Justice direct.”

Here there are not just two players, the administration and the private party. On the

contrary, there are:

a. the European Commission, acting as the guardian of competition;

b. one national government, as the grantor of the aid;

c. a private party that has benefited of the aid, as grantee;

d. other interested States;

e. other interested parties.

This multiplicity of players generates “polycentric adjudication” processes, as

defined by L. L. Fuller in his “The Forms and Limits of Adjudication” (1957 - 1978), in

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Harvard Law Review, vol. 92, 1978, p. 394-395:“Some months ago a wealthy lady by the

name of Timken died in New York leaving a valuable, but somewhat miscellaneous,

collection of paintings to the Metropolitan Museum and the National Gallery ‘in equal

shares’, her will indicating no particular apportionment. When the will was probated the

judge remarked something to the effect that the parties seemed to be confronted with a real

problem. The attorney for one of the museums spoke up and said, ‘We are good friends. We

will work it out somehow or other’. What makes this problem of effecting an equal division

of the paintings a polycentric task? It lies in the fact that the disposition of any single

painting has implications for the proper disposition of every other painting. If it gets the

Renoir, the Gallery may be less eager for the Cezanne but all the more eager for the

Bellows, etc. If the proper apportionment were set for argument, there would be no clear

issue to which either side could direct its proofs and contentions. Any judge assigned to

hear such an argument would be tempted to assume the role of mediator or to adopt the

classical solution: Let the older brother (here the Metropolitan) divide the estate into what

he regards as equal shares, let the younger brother (the National Gallery) take his pick.

[....] This is a ‘polycentric’ situation because it is ‘many centered’ – each crossing of

strands is a distinct center for distributing tensions.”

6. The Intermills case

A good example of such polycentric adjudication can be found in the Intermills

decision of the Court of Justice (Case C-323/82 Intermills v. Commission [1984], n. 4-5, 15-

19, 38) and in the Council regulation n. 659/1999 of 22 March 1999, Articles 4. 4, 6 and 20.

Article 4.4. of the Council regulation provides: “where the Commission,

after a preliminary examination, finds that doubts are raised as to the

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compatibility with the common market of a notified measure, it shall decide to

initiate proceedings pursuant to Article 93 (2) of the Treaty (hereinafter

referred to as a “decision to initiate the formal investigation procedure”).

Article 6 provides: “Formal investigation procedure - 1. The decision

to initiate the formal investigation procedure shall summarise the relevant

issues of fact and law, shall include a preliminary assessment of the

Commission as to the aid character of the proposed measure and shall set out

the doubts as to its compatibility with the common market. The decision shall

call upon the Member State concerned and upon other interested parties to

submit comments within a prescribed period which shall normally not exceed

one month. In duly justified cases, the Commission may extend the prescribed

period.

2. The comments received shall be submitted to the Member State

concerned. If an interested party so requests, on grounds of potential damage,

its identity shall be with held from the Member State concerned. The Member

State concerned may reply to the comments submitted within a prescribed

period which shall normally not exceed one month. In duly justified cases, the

Commission may extend the prescribed period.”

Article 20 provides: “Rights of interested parties - 1. Any interested

party may submit comments pursuant to Article 6 following a Commission

decision to initiate the formal investigation procedure. Any interested party

which has submitted such comments and any beneficiary of individual aid

shall be sent a copy of the decision taken by the Commission pursuant to

Article 7.

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2. Any interested party may inform the Commission of any alleged

unlawful aid and any alleged misuse of aid. Where the Commission considers

that on the basis of the information in its possession there are insufficient

grounds for taking a view on the case, it shall inform the interested party

thereof. Where the Commission takes a decision on a case concerning the

subject matter of the information supplied, it shall send a copy of that decision

to the interested party.

3. At its request, any interested party shall obtain a copy of any

decision pursuant to Articles 4 and 7, Article 10(3) and Article 11.”(note that

this regulation was adopted well after the Intermills decision).

Let me consider the Intermills case. Intermills, a Belgian company, produced writing

and printing paper and was in a very difficult financial situation. The Walloon region

granted aids to Intermills consisting in low interest loans, repayable advances and the

injection of capital (acquisition of holdings). As a consequence, the bulk production was

abandoned, two factories were closed and the three remaining factories were entrusted to

three different companies with the Walloon region as the controlling share-holder.

The Belgian State failed to promptly notify the European Commission about this aid,

and only did so in 1981. The Commission drew the Belgian government’s attention to its

obligations.

The Commission had initiated the formal investigation procedure and invited the

Belgian government to submit its comments. Three Member States, two trade associations

and one undertaking had objected to the aid. The Commission had decided that the loan did

not distort competition, and was therefore compatible with the EU rules, because it was

linked to an investment programme to reduce bulk production; the acquisition of a holding

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however distorted the competition, because it was not linked to the restructuring of the

undertaking, but was a rescue aid, contrary to Article 87 of the EC Treaty.

Intermills challenged the decision on the grounds of an inaccurate assessment of the

facts and a contradictory and inadequate statement of the reasons.

The CJ reasoned in the following way:

• state aids granted in order to “facilitate the development of certain economic

activity” are compatible with the EC Treaty (art. 87. 3. c);

• the EC Treaty does not distinguish aids by type;

• aids in the form of low interest loans and repayable advances aim at

restructuring the industry and correspond to the objectives of the European

Commission;

• aids granted in form of acquisition of shares could also aim at restructuring the

industry;

• the Commission had not explained why the second type of aid was

incompatible, while the first was compatible;

• therefore, the Commission’s decision was contradictory and insufficiently

reasoned.

Note that:

1. the Commission’s decision was addressed, according to Article

88. 2 and 3 of the EC Treaty, to the national government, but

the private party was individually and directly concerned,

according to Article 230 of the EC Treaty, leading the CJ to

conclude that the application was admissible;

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2. the CJ did not consider an individual notice to be necessary; a

general notice in the Official Journal was sufficient (n. 16 –

17);

3. according to the CJ, the European Commission’s request for

the submission of comments could include negative remarks

and reservations about the plan (n. 21).

The following points must be taken into account:

1. there are many parties concerned by the adjudication procedure: Intermills, the

Walloon regional government, the Belgian government, three Member States, two

trade associations, one undertaking;

2. while the party charged of distorting the competition is the Belgian State (to

which the decision is addressed), Intermills is considered to be directly and

individually concerned (n. 5 of the Intermills decision provides: ”the Commission

does not dispute the admissibility of the application. Although the contested

decision is addressed to the Kingdom of Belgium, the Commission acknowledges

that the applicant is directly and individually concerned, in its capacity as the

recipient of the aid in question, within the meaning of the second paragraph of

Article 173”) to the point that its application to the Court is declared admissible;

3. interested parties include private parties and States: they are all placed on the

same footing (see again Article 6. 1 of the 659/99 regulation);

4. in the Intermills case, Intermills, the Walloon regional government and the

Belgian State were apparently in favour of the aid, while the six other interested

parties objected to it, some of them on the basis that the paper manufacturing was

suffering from over-capacity;

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5. the European proceeding directed towards reviewing the system of State aids

resembles the “interest representation model” seen in domestic administrative law

(R. Stewart, The Reformation of American Administrative Law, in Harvard Law

Review, vol. 88, June 1975, n. 8, p. 1723-1760) “[...] judges have greatly

extended the machinery of traditional model to protect new classes of interests. In

the space of a few years the Supreme Court has largely eliminated the doctrine of

standing as a barrier to challenging agency action in court, and judges have

accorded a wide variety of affected interests the right not only to participate in,

but to force the initiation of, formal proceedings before the agency. Indeed, this

process has gone beyond the mere extension of participation and standing rights,

working a fundamental transformation of the traditional model. Increasingly, the

function of administrative law is not the protection of private autonomy but the

provision of a surrogate political process to ensure the fair representation of a

wide range of affected interests in the process of administrative decision. Whether

this is a coherent or workable aim is an open issue. But there is no denying the

importance of the transformation.” [....] “So long as controversies remained

bipolar in form and character – the citizen versus the government – it remained

possible to conceive of administrative law as a means of resolving the conflicting

claims of governmental power and private autonomy. However, the expansion of

the traditional model to include a broader universe of relevant affected interests

has transformed the structure of administrative litigation and deprived the simple

notion of restraining government power of much of its utility. In multipolar

controversies, demarcation of distinct spheres of governmental and private

competency may no longer be feasible, and the non-assertion of governmental

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authority may be itself a decision among competing interests. [....] Since, in

absence of authoritative rules of decision, the resolution of the conflicting claims

of a large number of competing interests is essentially a political process, a

solution to the problems raised by the transformation of administrative law into a

system of interest representation might better be achieved by a more direct and

explicitly political scheme for securing the representation of all relevant interests

affected by administrative decisionmaking.”

I want to call your attention to two more general points:

1. European actors play multiple roles:

• the European Commission does not just play the role of implementing

authority (Article 211 of the Treaty), but also the role of adjudicating

authority (Article 88 of the Treaty), acting in this last case as an independent

agency;

• the European Court of Justice plays, in the Intermills case, the role of

administrative court, reviewing the legality of State action; but - as we shall

see - it also plays the roles of civil and constitutional court;

• could one say that these multiple roles and the ensuing ambiguities are

connected with the dynamic historical development of the European

constitution?

2. the complexity of European administrative law: European rules on State aid and

competition become a measure of the legality of domestic rules. European law

and domestic law are not separate worlds. They are interlaced.

7. A whole body of special rights, privileges or prerogatives?

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Let me go back to Dicey, and look at French “droit administratif” through British

glasses.

Dicey rejected even the expression “administrative law,” always preferring the

French equivalent “droit administratif” and that he contrasted “droit administratif” with the

“absolute supremacy of the ordinary law of the land” (p. 330). Dicey’s attitude vis-à-vis

“droit administratif” was largely due to the prevalent British reaction to the French

Revolution and Napoleon (“It was from Bonaparte that modern “droit administratif”

received its form,” according to Dicey, p. 336).

According to Dicey, domestic administrative law rests on two main ideas: that the

government possesses special rights and prerogatives, and that questions of administrative

law must be determined not by ordinary courts, but by administrative courts.

Read Dicey, The law of the Constitution, p. 336-340 and p. 388 “Any one who

considers with care the nature of the droit administratif of France, or the topics to which it

applies, will soon discover that it rests, and always has rested, at bottom on two leading

ideas alien to the conceptions of modern Englishmen.

The first of these ideas is that the government, and every servant of the government,

possesses, as representative of the nation, a whole body of special rights, privileges, or

prerogatives as against private citizens, and that the extent of these rights, privileges, or

prerogatives is to be determined on principles different from the considerations which fix

the legal rights and duties of one citizen towards another. An individual in his dealings with

the State does not, according to French ideas, stand on anything like the same footing as

that on which he stands in dealings with his neighbour.

The second of these general ideas is the necessity of maintaining the so-called

‘separation of powers’ (séparation des pouvoirs), or in other words, of preventing the

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government, the legislature, and the courts from encroaching upon one another’s province.

[....] While the ordinary judges ought to be irremovable and thus independent of the

executive, the government and its officials ought (while acting officially) to be independent

of and to a great extent free from the jurisdiction of the ordinary courts. [....] The first of

these characteristics is, as the reader will at once perceive, that the relation of the

government and its officials towards private citizens must be regulated by a body of rules

which are in reality laws, but which may differ considerably from the laws which govern the

relation of one private person to another. This distinction between ordinary law and

administrative law is one which since 1800 has been fully recognised in France, and forms

an essential part of French public law, as it must form a part of the public law of any

country where administrative law in the true sense exists.

The second of these characteristics is that the ordinary judicial tribunals

which determine ordinary questions, whether they be civil or criminal, between man and

man, must, speaking generally, have no concern whatever with matters at issue between a

private person and the State, i.e. with questions of administrative law, but that such

questions, in so far as they form at all matter of litigation (contentieux administratif), must

be determined by administrative courts in some way connected with the government or the

administration. [....] [Napoleon] constitued, or reconstituted, two classes of courts. The one

class consisted of ‘judicial’ or, as we should say, ‘common law’ courts. [....] The other class

of so-called courts were and are the administrative courts, such as the Courts of the

Prefects (Conseil de Préfecture) and the Conseil d’Etat. [....] Droit administratif, in short,

rests upon ideas absolutely foreign to English law: the one, as I have already explained, is

that the relation of individuals to the State is governed by principles essentially different

from those rules of private law which govern the rights of private persons towards their

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neighbours; the other is that questions as to the application of these principles do not lie

within the jurisdiction of the ordinary courts.”

The question is the following: does the EU follow a similar pattern?

Read Article 226 of the EC Treaty: “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 after giving the State concerned the

opportunity to submit its observations. If the State concerned does not comply

with the opinion within the period laid down by the Commission, the latter

may bring the matter before the Court of Justice.”

Article 228 of the EC Treaty provides: “if the Court of Justice finds

that a Member State has failed to fulfil an obligation under this Treaty, the

State shall be required to take the necessary measures to comply with the

judgment of the Court of Justice. If the Commission considers that the Member

State concerned has not taken such measures it shall, after giving that State

the opportunity to submit its observations, issue a reasoned opinion specifying

the points on which the Member State concerned has not complied with the

judgment of the Court of Justice. If the Member State concerned fails to take

the necessary measures to comply with the Court's judgment within the time

limit laid down by the Commission, the latter may bring the case before the

Court of Justice. In so doing it shall specify the amount of the lump sum or

penalty payment to be paid by the Member State concerned which it considers

appropriate in the circumstances. If the Court of Justice finds that the Member

State concerned has not complied with its judgment it may impose a lump sum

or penalty payment on it[…]”.

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Note that:

a. “reasoned opinion” is a euphemism; it is a charge or accusation;

b. the action is brought before the Court of Justice by the Commission, not by the

State concerned;

c. therefore, the Commission does not have the power to unilaterally impose

obligations on the States. It can only object or accuse, and, in case of non -

compliance, bring an action before the Court;

d. Article 226 is full of understandable ambiguities : with these provisions, the

States have empowered a supra-national body to check them. This can explain the

“opinion” and the recourse to a court to ensure compliance by the States;

e. finally, in case of non-compliance with the decision of the Court, the Commission

can issue a new “opinion” but the Court can only fine the State.