Rethinking the Infringement Proceeding in the EU: A Tort-like System

Abstract

The infringement proceeding in the European Union is understood as an enforcement mechanism. It was originally a classic way of adjudicating disagreements about the interpretation of an international treaty among the contracting parties. However, through a transformation of the international regime by the European Court of Justice (hereinafter the Court) into a constitutional one, the proceeding obtained a different meaning. It is understood as a mechanism of public enforcement of EU law centered in the administrative stage of the proceeding conducted by the Commission with the aim to negotiate a settlement, backed by the threat of bringing an infringing state to Court. The result is an administrative enforcement of EU law conducted by an omnipotent Commission. The Commission has been gradually constrained by the Court that introduced several procedural requirements with the aim to enhance the adversary character of the prejudicial stage of the infringement proceeding. That only further distorts the character of the proceeding though. The core problem – absolute discretion in all stages of the proceeding, which are formed by a formal letter, a reasoned opinion, and ultimately an action brought to the Court, remained unchallenged and were certified by the Court itself. This conceptual framework is misleading. I claim that the original meaning of the infringement proceeding was to ensure trust among the participants in the common project (integration) by creating a mechanism of remedying wrongs, so that nobody can benefit from wronging the others. It was meant to be a crucial mechanism of managing the coexistence of small and big, strong and weak states as equals. The transformation of the Treaties into a constitutional regime only reinforces this meaning. I claim that one Member State’s failure to fulfill its obligations results in a duty to remedy. This argument allows me to identify who is the wrongdoer and who - the victim and establishes a proper normative relationship between the two. Only then we can understand who owes what duty to whom. The re-conceptualization of the infringement proceeding will help to correct the above-mentioned shortcomings by: (i) understanding the normative relationship between the institutional actors involved; (ii) asserting a duty to care of a Member State owed to (an)other Member State(s); (iii) conceptualizing a duty to remedy or repair; (iv) understanding the role of individuals in the proceeding.

Keywords: European Union; infringement proceeding; torts