Who guards the guardian within the European Union?
María López-Contreras González
November 24, 2006
In accordance with article 211 of the EC Treaty the Commission has always been considered the guardian of the European legal order. This institution has, within its tasks, to watch over that Member States and citizens comply with the Treaties and the measures taken by the European Communities. For this reason, it has, among its powers, for instance, the capacity to adopt mandatory decisions against those Member States that enact or maintain in force any measure contrary to the Treaty in favour of public undertakings or those granted special or exclusive rights (article 86 EC Treaty).
From another point of view -the division of powers between institutions-, and even taking into account the democratic deficit of the European Union, it can be said that the Commission is the “Administration” of the European Union.
Within this context, there is no doubt that one of the most important achievements of public law within the European democratic countries is the rule by which any act (action or inaction) of an Administration –even at the Government level, as the exception of “political acts” has been dropped time ago- is always subject to judicial control. It is true that when the Administration has been entrusted with discretionary powers, this judicial control is limited, but it still exists. The right to judicial action of any citizen against an Administration when the last one acts o does not act in a situation where such a citizen has a clear interest as the behaviour of the Administration affects its activity or situation, it is, nowadays, a fundamental right of public law in any State under the Rule of Law, in any democracy.
For this reason, it is very hard to understand the recent case-law of the European Court of Justice that establishes the doctrine of inadmissibility of actions brought by private parties against the inaction or the rejection by the Commission of a complaint against the infringement by a Member State of article 86 of the EC Treaty, even if it is true that, within this context, the Court does not rule out the possibility of admitting such an action “ in certain circumstances” (Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission, 20/02/1997; case 141/02 P T-Mobile Austria, 22/02/2005), although , in practice, the Court itself has never yet admitted that those circumstances exist -the contrary of what the European Court of First Instance has done.
This means a complete denial of the right of a judicial action against certain activities of the Commissio, something that should be reconsidered by the Court of Justice. I accept that, in those cases where the Commission has a wide power of discretion, judicial review by the Court would be more limited that in other situations. However, I consider that the European Court of Justice should take here one step forward and it should accept not only the admissibility of such actions but also a limited judicial review.
If one of the general principles of Community law is that any person must be able to obtain effective judicial review of decisions which may infringe a right conferred by the Treaties –jurisprudence that the Court has clearly established as regards national acts that infringe European law-, the wide discretion which the Commission enjoys in implementing article 86 should not undo that protection.
The Commission should not be free to exercise its powers as guardian of the Treaty only if it voluntarily wishes to do so. It should exercise them anytime it has evidence that an infringement of European law has happened. And the European Court should keep on eye in all its activities, and above all, precisely in those where the Commission has a wide margin of discretion.
On my opinion, this case-law does not take enough into account that the line between discretional powers and arbitrariness is just too thin.
No Comments »
No comments yet.
RSS feed for comments on this post. | TrackBack URI | bookmark on del.icio.us.
Leave a comment
Advertencia de Protección de Datos:
Los datos personales capturados con ocasión de la utilización del formulario de comentarios (nombre/apodo, dirección de correo electrónico, sitio web y dirección IP), serán incluidos en un fichero del propietario del sitio web y se publicarán (excepto su dirección de correo electrónico y su dirección IP) en esta página con la finalidad de permitir opinar públicamente al lector, así como para en su caso contestar al comentario o consultas que formule. Podrá ejercitar sus derechos de acceso, de rectificación, de cancelación y de oposición en lo referido a dichos datos personales dirigiendo un correo electrónico a la dirección: datos.personales@blogeuropa.eu.
----
Privacy notice:
Please be informed that by using the comments form, your personal data (name/nickname, e-mail address, website and IP address), will be included in a file owned by the website proprietor and published along your comment (except for your e-mail and IP addresses), in order for the reader to publicly comment, as well as -should that be the case-, to respond to any comment or query that readers may have made. You will be able to exercise your rights to access, rectify, cancel and oppose such personal data by sending an e-mail to the following address: datos.personales@blogeuropa.eu.