EU Administrative Law (Collected Courses of the Academy of European Law) [3 ed.] 0198831641, 9780198831648

Citation preview

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

E U A DM I N I ST R AT I V E L AW

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

THE COLLECTED COURSES OF THE ACADEMY OF EUROPEAN L AW

Edited by Professor Nehal Bhuta, Professor Claire Kilpatrick, and Professor Joanne Scott Assistant Editor: Anny Bremner Each year the Academy of European Law in Florence, Italy, invites a group of outstanding lecturers to teach at its summer courses on Human Rights law and the European Union. A ‘general course’ is given in each of the two fields by a distinguished scholar or practitioner, who examines the field as a whole through a particular thematic, conceptual, or philosophical lens, or looks at a theme in the context of the overall body of law. In addition, a series of ‘specialized courses’ brings together a group of highly qualified scholars to explore and analyse a specific theme in relation to Human Rights law and EU law. The Academy’s mission, to produce scholarly analyses which are at the cutting edge of the two fields, is achieved through publication of this series, the Collected Courses of the Academy of European Law.

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

EU ADMINISTRATIVE LAW Third Edition

PAUL CR A IG St John’s College, Oxford

1

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Paul Craig 2018 The moral rights of the author have been asserted First Edition published in 2006 Second Edition published in 2012 Third Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018943465 ISBN 978–0–19–883164–8 (hbk.) ISBN 978–0–19–883165–5 (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

This book is for Anita and Ciaran

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

PREFACE It has been six years since the second edition of this book, and the same period between the first and second editions. This has not been by design as such, but more by circumstance. There is, however, no doubt that a new edition of this book is warranted, given the six years that has passed since the previous edition. The intervening period has been difficult for the EU, beset as it has been with the financial crisis, the rule of law crisis, the migration crisis and Brexit. These are important substantive topics on which there is a wealth of literature. Detailed consideration of such topics would, however, venture far beyond the remit of this book, the focus of which is EU Administrative law. My strategy has therefore been to integrate material on such issues, where relevant, into the existing chapters of the book. There have been significant developments in the case law and EU legislation that is directly relevant to the subject matter of this book. So too, in relation to the secondary literature since publication of the second edition in 2012. The body of academic scholarship has grown considerably, and attests to the vibrancy and importance of this intellectual field. The developments in relation to both primary law and scholarly literature have been fully integrated into the existing chapters of the book. The structure of the book was modified as between the first and second editions, but no such change was warranted on this occasion. The divide between the two parts of the book, which has been present from the outset, has been preserved in this edition. Thus, the first part deals with ‘Administration and Law’, the focus being on the different ways in which EU policy is administered, and the role of law and politics therein. The second part is concerned with ‘Law and Administration’, in which the precepts of judicial review are explicated, and set within the broader frame of the workings of the EU. The object is to provide the reader with a clear and informed view of all dimensions of EU Administrative law. Paul Craig April 2018

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

CONTENTS Table of Cases Tables of Legislation, Treaties, and Conventions Abbreviations

xi lxxix xciii

PA RT I   A DM I N I ST R AT ION A N D L AW 1 HISTORY AND T YPOLO GY

3

2 CRISIS, REFORM, AND C ONSTITU TIONALIZ ATION

36

3 CENTR ALIZED MANAGEMENT

56

4 SHARED MANAGEMENT

80

5 C OMITOLO GY

111

6 AGENCIES

151

7 OPEN METHOD OF C O ORDINATION

199

8 SO CIAL PARTNERS

238

PA RT I I   L AW A N D A DM I N I ST R AT ION 9 FOUNDATIONS

263

1 0 C OURT S

280

1 1 AC CESS

311

1 2 PRO CESS

348

1 3 TR ANSPARENCY

388

1 4 C OMPETENCE AND SUBSIDIARIT Y

401

1 5 L AW, FACT, AND DISCRETION

436

1 6 RIGHT S

484

1 7 EQUALIT Y

545

1 8 LEGAL CERTAINT Y AND LEGITIMATE EXPECTATIONS

600

1 9 PROPORTIONALIT Y I: EU

642

2 0 PROPORTIONALIT Y II: MEMBER STATES

669

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

x

CONTENTS

2 1 PRECAU TIONARY PRINCIPLE

694

2 2 REMEDIES I: EU

722

2 3 REMEDIES II: MEMBER STATES

758

2 4 THE OMBUDSMAN

795

Index

821

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

TABLE OF CASES ALPHABETICAL Aalborg Portland v Commission (C-204–205, 211, 213, 217, 219/00 P) [2004] ECR I-123 . . . 353, 356, 357, 359, 361, 384, 667 Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (C-72/95) [1996] ECR I-5403 . . . 772 ABB Asea Brown Boveri Ltd v Commission (T-31/99) [2002] ECR II-1881 . . . 364, 626 Abertal and others v Commission (C-213/91 R) [1991] ECR I-5109 . . . 724 Abrahamsson v Fogelqvist (C-407/98) [2000] ECR I-5539 . . . 592 Abrias v Commission (3/83) [1985] ECR 1995 . . . 623 Acciaieriere Ferriere e Fonerie di Modena v High Authority (16/61) [1962] ECR 289 . . . 579 Accorinti v European Central Bank (T­79/13) EU:T:2015:756 . . . 625, 742, 752 Acegas-APS SpA v Commission (T-309/02) [2009] ECR II-1809 . . . 338 Acino AG v European Commission (C-269/13 P) EU:C:2014:255 . . . 699 Adams v Commission (145/83) [1985] ECR 3539 . . . 747 Aden v Council and Commission (T-306/01 R) [2002] ECR II-2387 . . . 723 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini (169/80) [1981] ECR 1931 . . . 601 Adoui and Cornuaille v Belgian State (115 & 116/81) [1982] ECR 1665 . . . 685 Aer Lingus Ltd v European Commission (T-473/12) EU:T:2015:78 . . . 466 Aerpo and others v Commission (C-119/88) [1990] ECR I-2189 . . . 739, 740 AFCon Management Consultants v Commission (T-160/03) [2005] ECR II-981 . . . 749 Affish BV v Rijksdienst voor de keuring van Vee en Vlees (C-183/95) [1997] ECR I-4315 . . . 629, 638, 647, 655 Afrikanische Frucht-Compagnie GmbH and another v Commission (T-64–65/01) [2004] ECR II-521 . . . 625, 740, 752 Afton Chemical Ltd v Secretary of State for Transport (C-343/09) EU:C:2010:419 . . . 456, 699

AGC Glass Europe v European Commission (C­517/15 P) EU:C:2017:59 . . . 631, 723 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis (C-201/15) EU:C:2016:972 . . . 674, 689 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen (C-470/03) [2007] ECR I-2749 . . . 789 Agrana Zucker und Stark AG v Commission (T-187/99) [2001] ECR II-1587 . . . 364, 370 Agrargenossenschaf Neuzelle eG v Landrat des Landkreises Oder-Spree (C­545/11) EU:C:2013:169 . . . 619 Agrar-Invest-Tatschl GmbH v Commission (T-51/07) [2008] ECR II-2825 . . . 731 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan (C-504/04) [2006] ECR I-679 . . . 647, 648, 698 Agraz, SA and Others v Commission (C-243/05 P) [2006] ECR I-10833 . . . 748 Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri (C­568/11) EU:C:2013:40 . . . 640 Ahlström Osakeyhitiö v Commission (C-89, 104, 114, 116, 117, 125–9/85) [1993] ECR I-1307 . . . 474 Ainārs Rēdlihs v Valsts ieņēmumu dienests (C-263/11) EU:C:2012:497 . . . 682 Air France v Commission (T-2/93) [1994] ECR II-323 . . . 639 Air Inter SA v Commission (T-260/94) [1997] ECR II-997 . . . 313, 314, 350, 525 Airey v Ireland (1979–80) 2 EHRR 305 . . . 513 Airtours plc v Commission (T-342/99) [2002] ECR II-2585 . . . 456, 470, 473 AIUFFASS v Commission (T-380/94) [1996] ECR II-2169 . . . 318 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Generali (C-221/09) [2011] ECR I-1655 . . . 317 Aker Warnow Werft GmbH and Kvaerner ASA v Commission (T-68/05) [2009] ECR II-355 . . . 466 Åklagaren v Hans Åkerberg Fransson (C-617/10) EU:2013:C:105 . . . 495, 503–6, 530 Aktien-Zuckerfabrik Schöppenstedt v Council (5/71) [1971] ECR 975 . . . 737–9

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xii

TABLE OF CASES

Akzo Nobel NV v Commission (T-112/05) [2007] ECR II-5049 . . . 733 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (C-67/96) [1999] ECR I-5751 . . . 260, 582 Albert Heijin BV (94/83) [1984] ECR 3263 . . . 671 Alferink v Commission (T-94/98) [2008] ECR II-1125 . . . 601, 742 Alfons Lütticke GmbH v Commission (4/69) [1971] ECR 325 . . . 747 Algera v Common Assembly (7/56 & 3–7/57) [1957] ECR 39 . . . 608, 610, 614, 617 Alitalia-Linee aeree italiane SpA v Commission (T-301/01) [2008] ECR II-1753 . . . 732 Al-Jubail Fertilizer v Council (C-49/88) [1991] ECR I-3187 . . . 149, 313, 350, 525 Alliance One International, Inc v Commission (T-24/05) EU:T:2010:453 . . . 370 Allonby v Accrington & Rossendale College, Education Lecturing Services, Trading as Protocol Professional and Secretary of State for Education and Employment (C-256/01) [2004] ECR I-873 . . . 678 Allué and Coonan v Università degli Studi di Venezia (33/88) [1989] ECR 1591 . . . 555 Alonso-Pérez v Bundesanstalt für Arbeit (C-394/93) [1995] ECR I-4101 . . . 768 Aloys Schröder v Commission (T-390/94) [1997] ECR II-501 . . . 744 Alpha Steel v Commission (14/81) [1982] ECR 749 . . . 609, 617 Alpharma Inc v Council (T-70/99) [2002] ECR II-3495 . . . 149, 317, 444, 452, 620, 623, 648, 699 Alpine Investments BV v Minister van Financien (C-384/93) [1995] ECR I-1141 . . . 686 Alrosa Company Ltd v Commission (T-170/06) [2007] ECR II-2601 . . . 647 Amann & Söhne GmbH & Co KG and Cousin Filterie SAS v Commission (T-446/05) EU:T:2010:16 . . . 460 Ambulanz Glockner v Landkreis Sudwestpfalz (C-475/99) [2001] ECR I-8089 . . . 582 Amministrazione delle Finanze dello Stato v San Giorgio (199/82) [1983] ECR 3595 . . . 760, 777 Amministrazione delle Finanze dello Stato v Simmenthal SpA (106/77) [1978] ECR 629 . . . 282, 760 Amministrazione delle Finanze dello Stato v Srl Meridionale Industria Salumi (212–217/80) [1981] ECR 2735 . . . 603 Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire (C-177 & 181/99) [2000] ECR I-7013 . . . 653

Amylum NV and Tunnel Refineries Ltd v Council and Commission (116 and 124/77) [1979] ECR 3497 . . . 741, 747 Analir v Administracion General del Estado (C-205/99) [2001] ECR I-1271 . . . 675 Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaft en eV (C-94/07) [2008] ECR I-5939 . . . 550 Angelo Ferlini v Centre Hospitalier de Luxembourg (C-411/98) [2000] ECR I-8081 . . . 566 Angelopharm GmbH v Freie Hansestadt Hamburg (C-212/91) [1994] ECR I-171 . . . 454, 702 Angonese v Cassa di Risparmio di Bologna (C-281/93) [2000] ECR I-4134 . . . 500 Animal Trading Company (ATC) BV v European Commission (T-333/10) EU:T:2013:451 . . . 456, 698 Anker, Ras and Snoek v Germany (C-47/02) [2003] ECR I-10447 . . . 556 Annibaldi v Sindaco del Commune di Guidonia and Presidente Regione Lazio (C-309/96) [1997] ECR I-7493 . . . 486, 505 Anomar v Estado Portugues (C-6/01) [2003] ECR I-8621 . . . 687 Antillean Rice Mills NV and others v Commission (C-390/95 P) [1999] ECR I-769 . . . 463, 738, 739, 744, 745 Antillean Rice Mills NV v Commission (T-480 and 483/93) [1995] ECR II-2305 . . . 732 Antwerpse Bouwwerken NV v European Commission (T-195/08) [2009] ECR II-4439 . . . 267 APOL and AIPO v Commission (T-61 & 62/00) [2003] ECR II-635 . . . 666 Apothekerkammer des Saarlandes v Saarland and Ministerium für Justiz, Gesundheit und Soziales (C-171 and 172/07) [2009] ECR I-4171 . . . 674 Aprile v Amminstrazione delle Finanze dello Stato (C-229/96) [1998] ECR I-7141 . . . 768, 774 A-Punkt Schmuckhandels GmbH v Claudia Schmidt (C-441/04) [2006] ECR I-2093 . . . 671 Arbeiterwohlfahrt der Stadt Berlin v Bötel (C-360/90) [1992] ECR I-3589 . . . 587, 679 Arcelor SA v European Parliament and Council (T-16/04) 2 March 2010 . . . 338, 347, 540, 738, 742, 744 Archer Daniels Midland Co v Commission (T-59/02) [2006] ECR II-3627 . . . 604 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLE OF CASES Commission (T-224/00) [2003] ECR II-2597 . . . 667, 731 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (C-418–419/97) [2000] ECR I-4475 . . . 707 Areva v Commission (T-117 & 121/07) [2011] ECR II-633 . . . 352 Arizona Chemical and others v Commission (T-369/03) [2004] ECR II-205 . . . 724 Armement Cooperatif Artisanal Vendeen (ACAV) v Council (T-138/98) [1999] ECR II-1797 . . . 335 Arnold André GmbH & Co KG v Landrat des Kreises Herford (C-434/02) [2004] ECR I-11825 . . . 646 Artegodan GmbH v Commission (T-74, 76, 83–85, 132, 137 & 141/00) [2002] ECR II-4945 . . . 176, 383, 480, 515, 516, 697–9, 704, 705, 720, 721 Asemfo v Transformacion Agraria SA (C-295/05) [2007] ECR I-2999 . . . 287 Asia Motor France SA v Commission (T-7/92) [1993] ECR II-669 . . . 364, 370, 383, 481 Asia Motor France SA v Commission (T-154/98) [2000] ECR II-3453 . . . 364 Asia Motor France SA v Commission (T-387/94) [1996] ECR II-961 . . . 364, 370, 732 Asociasión Espanola de Empresas de la Carne (Asocarne) v Council (C-10/95 P) [1995] ECR I-4149 . . . 318, 333, 335 ASPEC v Commission (T-435/93) [1995] ECR II-1281 . . . 318 Assidoman Kraft Products AB v Commission (T-227/95) [1997] ECR II-1185 . . . 609 Associacao Comercial de Aveiro v Commission (T-81/00) [2002] ECR II-2509 . . . 467 Associacao dos Refinadores de Acucar Portugueses (ARAP) v Commission (C-321/99 P) [2002] ECR I-4287 . . . 621 Association Belge des Consammateurs TestAchats ASBL v Conseil des Ministres (C-236/09) EU:C:2011:100 . . . 490, 583 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi (C-176/12) EU:C:2014:2 . . . 500, 511, 512, 515, 516 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche (C-6/99) [2000] ECR I-1651 . . . 331, 515, 695, 706 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament (T-103/99) [2000] ECR II-4165 . . . 817 Associazione Italia Nostra Onlus v Comune di Venezia (C-444/15) EU:C:2016:978 . . . 522

xiii

Asteris AE and Hellenic Republic v Commission (97, 99, 193 & 215/86) [1988] ECR 2181 . . . 732 Asteris v Greece and EEC (106–120/87) [1988] ECR 5515 . . . 754 ASTI v Chambre des employés privés (C-213/90) [1991] ECR I-350 . . . 555 Astipeca SL v Commission (T-180/00) [2002] ECR II-3985 . . . 666 AstraZeneca AB and AstraZeneca plc v European Commission (T-321/05) EU:T:2010:266 . . . 460 Atalanta Amsterdam BV v Produktschap voor Vee en Vlees (240/78) [1979] ECR 2137 . . . 665 ATB v Ministero per le Politiche Agricole (C-402/98) [2000] ECR I-5501 . . . 625, 626 Athanasios Pitsiorlas v Council and ECB (T-3/00 and 337/04) [2007] ECR II-4779 . . . 742, 747, 748 Atlanta AG v Commission (C-104/97 P) [1999] ECR I-6983 . . . 149, 316, 625 Atlanta Fruchthandelgesellschaft mbH v Bundesamt für Ernahrung und Forstwirtschaft (C-465/93) [1995] ECR I-3761 . . . 725 Atlantic Container Line AB v Commission (T-191, 212, 214/98) [2003] ECR II-3275 . . . 364, 636, 731 Atlantic Container Line v Commission (T-395/94 R II) [1995] ECR II-2893 . . . 724 ATRAL SA v Belgium (C-14/02) [2003] ECR I-4431 . . . 670 Atzeni and others v Regione autonoma della Sardegna (C-346 and 529/03) [2006] ECR I-1875 . . . 624 Austria v Council (C-445/00 R) [2001] ECR I-1461 . . . 723, 729 Automec Srl v Commission (T-24/90) [1992] ECR II-2223 . . . 364 Axa Versicherung AG v European Commission (T-677/13) EU:T:2015:473 . . . 394 Azarov v Council (T-215/15) EU:T:2017:479 . . . 369 Azienda Agricola Disarò Antonio v Cooperativa Milka 2000 Soc coop arl (C-34/08) [2009] ECR I-4023 . . . 653 Azienda Agricole Ettore Ribaldi v AIMA (C-480–2, 484, 489, 490–1, 497–9/00) [2004] ECR I-2943 . . . 670 Azienda Agricola Giorgio v AIMA (C-495/00) [2004] ECR I-2993 . . . 605 Azienda Agricola ‘Le Canne’ Srl v Commission (T-241/00) [2002] ECR II-1251 . . . 363, 370

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xiv

TABLE OF CASES

B & Q plc v Shrewsbury BC [1990] 3 CMLR 535 . . . 691 Bactria Industriehygiene-Service Verwaltungs GMbH v Commission (C-258/02 P) [2003] ECR I-15105 . . . 149, 317, 338, 347, 540 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen (C-158/97) [1999] ECR I-1875 . . . 591 Balázs-Árpád Izsák and Attila Dabis v European Commission (T-529/13) EU:T:2016:282 . . . 417 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission (T-57/00) [2003] ECR II-607 . . . 743, 747 Banchero (C-157/92) [1993] ECR I-1085 . . . 286 Banco de Credito Industrial SA (Banco Exterior de Espana SA) v Ayuntamiento de Valencia (C-387/92) [1994] ECR I-877 . . . 441 Bank Melli Iran v Council (T-390/08) [2009] ECR II-3967 . . . 468 BASF AG and UCB SA v Commission (T-101 and 111/05) [2007] ECR II-4949 . . . 667 BASF AG v Commission (T-79, 84–86, 89, 91–92, 94, 96, 98, 102, 104/89) [1992] ECR II-315 . . . 267 BASF Lacke & Farben AG v Commission (T-175/95) [1999] ECR II-1581 . . . 355 BAT and Reynolds v Commission (142 and 156/84) [1987] ECR 4487 . . . 450 Baumbast and R v Secretary of State for the Home Department (C-413/99) [2002] ECR I-7091 . . . 673 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV (C-343/07) [2009] ECR I-5491 . . . 331 Bayer AG v Commission (T-41/96) [2000] ECR II-3383 . . . 442 Bayer CropScience AG and others v Commission (T-75/06) [2008] ECR II-2081 . . . 465 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission (83, 94/76, 4, 15, 40/77) [1978] ECR 1209 . . . 740, 748 Bayerische Motoren Werke AG v European Commission (T-671/14) EU:T:2017: 599 . . . 466 Beamglow Ltd v European Parliament, Council and Commission (T-383/00) [2005] ECR II-5459 . . . 739, 752 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe (C-80/89) [1990] ECR I-2659 . . . 622, 623 Bela-Mühle Josef Bergman KG v Grows-Farm GmbH & Co KG (114/76) [1977] ECR 1211 . . . 665 Belgian Sewing Thread (BST) NV v European Commission (T-452/05) 28 April 2010 . . . 748

Belgisch Interventieen Restitutiebureau v SGS Belgium NV (C-367/09) [2010] ECR I-1076 . . . 506, 682 Belgium and Forum 187 ASBL v Commission (C-182 and 217/03) [2006] ECR I-5479 . . . 622, 629 Belgium v Commission (C-75/97) [1999] ECR I-3671 . . . 442 Belgium v Commission (C-110/03) [2005] ECR I-2801 . . . 433, 601, 603 Belgium v Commission (Tubemeuse) (C-142/87) [1990] ECR I-959 . . . 361, 666 Belgium v European Commission (T-131/16 R) EU:T:2016:427 . . . 723 Bellio F. lii Srl v Prefettura di Treviso (C-286/02) [2004] ECR I-3465 . . . 710 Berlington Hungary Tanácsadó és Szolgáltató kf v Magyar Állam (C­98/14) EU:C:2015:386 . . . 601, 686 Berlioz Investment Fund SA v Directeur de l’administration des contributions directes (C-682/15) EU:C:2017:373 . . . 506 Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala) (C-413/06 P) [2008] ECR I-4951 . . . 460 Besselink v Commission (T-331/11) EU:T:2013:499 . . . 396 Bettray v Staatssecretaris van Justitie (344/87) [1989] ECR 1621 . . . 550 Beus (5/67) [1968] ECR 83 . . . 371 Bickel & Franz (C-274/96) [1998] ECR I-7637 . . . 565 Bilka-Kaufh aus GmbH v Karin Weber von Hartz (170/84) [1986] ECR 1607 . . . 587, 588, 678 Bi-Metallic Investment Co v State Board of Equalization of Colorado, 239 US 441 (1915) . . . 319 Binder GmbH v Hauptzollamt Stuttgart-West (C-205/94) [1996] ECR I-2871 . . . 371 Birke v Commission (543/79) [1981] ECR 2669 . . . 737 Bleis v Ministère de l’Education Nationale (C-4/91) [1991] ECR I-5627 . . . 555 Bocchi Food Trade International GmbH v Commission (T-30/99) [2001] ECR II-943 . . . 646 Boehringer Ingelheim Vetmedica GmbH and CH Boehringer Sohn v Council and Commission (125 and 152/96) [1999] ECR II-3427 . . . 647, 655 Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi (C-438/09) 22 December 2010 . . . 681 Bolloré SA and Others v Commission (T-109, 118, 122, 125, 126, 128, 129, 132 & 136/02) [2007] ECR II-947 . . . 358, 360, 636

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLE OF CASES Bonifaci and Berto v Istituto Nazionale della Previdenza Sociale (IPNS) (C-94–95/95) [1997] ECR I-3969 . . . 792 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas (C-1/06) [2007] ECR I-5609 . . . 772 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v Scottish Ministers (C-20 & 64/00) [2003] ECR I-7411 . . . 520, 661 Borelli SpA v Commission (C-97/91) [1992] ECR I-6313 . . . 320, 332 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, (App No 45036/98) ECtHR (2005) . . . 495, 497 Bozetti v Invernizzi (179/84) [1985] ECR 2301 . . . 759 BP Supergas v Greece (C-62/93) [1995] ECR I-1883 . . . 769 BPB Industries plc and British Gypsum Ltd v Commission (T-65/89) [1993] ECR II-389 . . . 355 BPB Industries and British Gypsum v Commission (C-310/93 P) [1995] ECR I-865 . . . 354 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (C-69/10) 28 July 2011 . . . 773 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd (C-46 and 48/93) [1996] ECR I-1029 . . . 690, 741, 783–5, 787, 792 Bresle v Prefet de la Région Auvergne and Prefet du Puy-de-Dôme (C-257/95) [1996] ECR I-233 . . . 286 Brey (C-140/12) EU:C:2013:565 . . . 568 Briheche v Ministre de l’Interieur, Ministre de L’Education and Ministre de la Justice (C-319/03) [2004] ECR I-8807 . . . 593, 677 Brinkmann Tabakfabriken GmbH v Skatteministeriet (C-319/96) [1998] ECR I-5255 . . . 786, 789 British Aggregates Association v Commission (C-487/06 P) [2008] ECI I-10515 . . . 728 British Airways plc and British Midland Airways Ltd v Commission (T-371 & 394/94) [1998] ECR II-2405 . . . 363 British Steel plc v Commission (C-1/98 P) [2000] ECR I-10349 . . . 635 British Sugar plc v Commission (C-359/01 P) [2004] ECR I-4933 . . . 667 Brown v Secretary of State for Scotland (197/86) [1988] ECR 3205 . . . 563, 570 Brunnhofer v Bank der Österreichischen Postsparkasse AG (C-381/99) [2001] ECR I-4961 . . . 679

xv

Bruno Gollnisch v European Parliament (T-42/06) [2010] ECR II-1135 . . . 747 BSM Geraets-Smits v Stichting Ziekenfonds VGZ (C-157/99) [2001] ECR I-5473 . . . 675 Buitoni v Forma (122/78) [1979] ECR 677 . . . 665 Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v Commission (T-144/92) [1995] ECR II-147 . . . 364 Bureau Européen des Unions Consommateurs and National Consumer Council v Commission (T-37/92) [1994] ECR II-285 . . . 364 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission (T-646/13) EU:T:2017:59 . . . 150 C v Council (T-84/98) [2000] ECR IA-113 . . . 749 Cadman v Health & Safety Executive (C-17/05) [2006] ECR I-9583 . . . 587, 678 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) (C-484/08) [2010] ECR I-4785 . . . 287 Calpak SpA and Societa Emiliana Lavorazione Fruita SpA v Commission (789 & 790/79) [1980] ECR 1949 . . . 333 Camar Srl and Tico Srl v Commission (T-79/96, 260/97, 117/98) [2000] ECR II-2193 . . . 744, 745, 748, 749 Campo Ebro and Others v Commission (T-472/93) [1995] ECR II-421 . . . 739 Campus Oil Ltd v Minister for Industry and Energy (72/83) [1984] ECR 2727 . . . 548, 671 Canadian Solar Emea GmbH v Council (T-162/14) EU:T:2017:12 . . . 651 Canal Satélite Digital SL v Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) (C-390/99) [2002] ECR I-607 . . . 675 Canon Europa NV v European Commission (C-552/14 P) EU:C:2015:804 . . . 345 Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA (263/06) [2008] ECR I-1077 . . . 650 Cargill BV v Commission (C-248/89) [1991] ECR I-2987 . . . 617 Cargill BV v Produktschap voor Margarine, Vetten en Olien (C-365/89) [1991] ECR I-3045 . . . 617 Carlo Tedeschi v Denkavit Commerciale Srl (5/77) [1977] ECR 1555 . . . 116

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xvi

TABLE OF CASES

Carlos Garcia Avello v Belgium (C-148/02) [2003] ECR I-11613 . . . 565 Carmen Media Group Ltd v Land SchleswigHolstein (C-46/08) [2010] ECR I-8149 . . . 686 Carpenter v Secretary of State for the Home Department (C-60/00) [2002] ECR I-6279 . . . 586, 674 Carvel and Guardian Newspapers Ltd v Council (T-194/94) [1995] ECR II-2765 . . . 393 Casagrande v Landeshauptstadt München (9/74) [1974] ECR 773 . . . 552 Caturla-Poch v Parliament (C-107/89 R) [1989] ECR 1357 . . . 724 CEMR v Commission (T-46 and 151/98) [2000] ECR II-167 . . . 611, 612, 619, 621 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469 . . . 779 Centre public d’aide sociale de Courcelles v Lebon (316/85) [1987] ECR 2811 . . . 553 Cerafogli v European Central Bank (T-114/13 P) EU:T:2015:67 . . . 313 Cereol Italia v Azienda Agricola Castello (C-104/94) [1995] ECR I-2983 . . . 665 CETM v Commission (T-55/99) [2000] ECR II-3207 . . . 666 CEVA Sante Animale SA and Pharmacia Enterprises SA v Commission (T-344–345/00) [2003] ECR II-229 . . . 468 CFPR v European Commission (C­411/15 P) EU:C:2017:11 . . . 619, 667 Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co Ltd v Council of the European Union (C-376 and 377/15 P) EU:C:2017:269 . . . 463 Chavez-Vilchez (H C) and Others v Raad van bestuur van de Sociale verzekeringsbank (C-133/15) EU:C:2017:35 . . . 573 Cheminova A/S v Commission (T-326/07) [2009] ECR II-2685 . . . 432, 639, 698 Chevron USA Inc v NRDC 467 US 837 (1984) . . . 442 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite rab (C-14/13) EU:2013:C:374 . . . 507 Chomel v Commission (T-123/89) [1990] ECR II-131 . . . 608 CIRFS v Commission (C-313/90) [1993] ECR I-1125 . . . 619, 631, 639 Citymo SA v Commission (T-271/04) [2007] ECR II-1375 . . . 621 Claire Staelen v European Ombudsman (T-217/11) EU:T:2015:238 . . . 818

ClientEarth and the International Chemical Secretariat v European Chemicals Agency (ECHA) (T-245/11) EU:T:2015:675 . . . 394, 656 ClientEarth v European Commission (T-111/11) EU:T:2013:482 . . . 395 ClientEarth v European Commission (T-424 and 425/14) EU:T:2015:848 . . . 396 CM Eurologistik GmbH v Hauptzollamt Duisburg (C-283–284/14) EU:C:2016:57 . . . 731 Cobrecaf v Commission (T-514/93) [1995] ECR II-621 . . . 747 Codorniu v Council (C-309/89) [1994] ECR I-1853 . . . 334 Coenen v Social Economische Raad (39/75) [1975] ECR 1547 . . . 674 Cofidis SA v Fredout (C-473/00) [2002] ECR I-10875 . . . 772 Co-Frutta Soc coop v European Commission (T-355 & 446/04) [2010] ECR II-1 . . . 267, 394, 397 Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado (C-330/03) [2006] ECR I-801 . . . 687 Colegio de Oficiales de la Marina Mercante Espanola v Administracion del Estado (C-405/01) [2003] ECR I-10391 . . . 556 Collins v Secretary of State for Work and Pensions (C-138/02) [2004] ECR I-2703 . . . 549, 550, 565, 573 Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co v Commission (T-139/01) [2005] ECR II-409 . . . 338, 748 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co v Commission (T-198/95, 171/96, 230/97, 174/98, and 225/98) [2001] ECR II-1975 . . . 744, 746 Comateb v Directeur Général des Douanes et Droits Indirects (C-192/95) [1997] ECR I-165 . . . 760, 777, 778 Comet BV v Produktschap voor Siergewassen (45/76) [1976] ECR 2043 . . . 759 Commission and France v Ladbroke Racing Ltd (C-359 & 379/95 P) [1999] ECR I-6265 . . . 364 Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd (C-7/04 P(R)) [2004] ECR I-8739 . . . 723 Commission v Alrosa Company Ltd (C-441/07 P) EU:C:2010:377; [2010] ECR I-5949 . . . 460 Commission v Artegodan GmbH (C-39/03 P) [2003] ECR I-7885 . . . 177, 480, 703 Commission v AssiDomän Kraft Products AB (C-310/97 P) [1999] ECR I-5363 . . . 733, 737

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLE OF CASES Commission v Atlantic Container Line AB (C-149/95 P(R)) [1995] ECR I-2165 . . . 723 Commission v Austria (C-475/98) [2002] ECR I-9797 . . . 409 Commission v Austria (C-147/03) [2005] ECR I-5969 . . . 63 Commission v Austria (C-203/03) [2005] ECR I-935 . . . 677 Commission v Austria (C-28/09) EU:C:2011: 854 . . . 671 Commission v BASF AG (C-137/92 P) [1994] ECR I-2555 . . . 267, 268 Commission v Belgium (149/79) [1980] ECR 3881 . . . 554, 555 Commission v Belgium (C-173/94) [1996] ECR I-3265 . . . 556 Commission v Belgium (C-278/94) [1996] ECR I-4307 . . . 547 Commission v Belgium (35/97) [1998] ECR I-5325 . . . 547 Commission v Belgium (C-355/98) [2000] ECR I-1221 . . . 548 Commission v Belgium (C-471/98) [2002] ECR I-9681 . . . 409 Commission v Belgium (C-217/99) [2000] ECR I-10251 . . . 671 Commission v Camar Srl and Tico Srl (C-312/00 P) [2002] ECR I-11355 . . . 738, 744 Commission v Cantina sociale di Dolianova Soc coop arl (C-51/05 P) [2008] ECR I-5341 . . . 736 Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl (C-198/03 P) [2005] ECR I-6357 . . . 742 Commission v Council (22/70) [1971] ECR 263 . . . 266, 408 Commission v Council (81/72) [1973] ECR 575 . . . 730 Commission v Council (45/86) (Tariff Preferences) [1987] ECR 1493 . . . 371, 421, 422 Commission v Council (Generalized Tariff Preferences) (51/87) [1988] ECR 5459 . . . 729 Commission v Council (165/87) [1988] ECR 5545 . . . 421 Commission v Council (16/88) [1989] ECR 3457 . . . 114, 117 Commission v Council (C-122/94) [1996] ECR I-881 . . . 371 Commission v Council (C-209/97) [1999] ECR I-8067 . . . 421 Commission v Council (C-257/01) [2005] ECR I-345 . . . 117, 121 Commission v Council (C-176/03) [2005] ECR I-7879 . . . 405

xvii

Commission v Council (C-27/04) [2004] ECR I-6649 . . . 207 Commission v Council (Convention on the Rights of Broadcasting Organizations) (C-114/12) EU:C:2014:2151 . . . 411 Commission v Denmark (C-467/98) [2002] ECR I-9519 . . . 409 Commission v Denmark (C-192/01) [2003] ECR I-9693 . . . 673, 709 Commission v Département du Loiret and Scott SA (C-295/07 P) [2008] ECI I-9363 . . . 729 Commission v EnBW (C-365/12 P) EU:C:2014:112 . . . 396 Commission v European Central Bank (C-11/00) [2003] ECR I-7147 . . . 651, 652 Commission v European Investment Bank (C-15/00) [2003] ECR I-7281 . . . 651 Commission v European Parliament and Council (C-378/00) [2003] ECR I-937 . . . 119, 121, 730 Commission v European Parliament and Council (C-122/04) [2006] ECR I-2001 . . . 121 Commission v European Parliament and Council (C-427/12) EU:C:2014:170 . . . 141, 142 Commission v European Parliament and Council (C-88/14) EU:C:2015:499 . . . 141, 143, 144, 146 Commission v Finland (C-469/98) [2002] ECR I-9627 . . . 409 Commission v Finland (C-54/05) [2007] ECR I-2473 . . . 548 Commission v France (21/84) [1985] ECR 1356 . . . 548 Commission v France (307/84) [1986] ECR 1725 . . . 556 Commission v France (318/86) [1988] ECR 3559 . . . 586, 589 Commission v France (C-265/95) [1997] ECR I-6959 . . . 517 Commission v France (C-24/00) [2004] ECR I-1277 . . . 673, 709, 710 Commission v France (C-262/02) [2004] ECR I-6569 . . . 685 Commission v France (C-280/02) [2004] ECR I-8573 . . . 707 Commission v France (C-334/02) [2004] ECR I-2229 . . . 670 Commission v France (C-212/03) [2005] ECR I-4213 . . . 673 Commission v France (C-333/08) 28 January 2010 . . . 673, 698, 699, 710 Commission v French Republic (167/73) [1974] ECR 359 . . . 547 Commission v French Republic (68/76) [1977] ECR 515 . . . 548

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xviii

TABLE OF CASES

Commission v Fresh Marine A/S (C-472/00 P) [2003] ECR I-7541 . . . 738, 742, 744, 817 Commission v Germany (12/74) [1975] ECR 181 . . . 548 Commission v Germany (178/84) [1987] ECR 1227 . . . 671, 684 Commission v Germany (C-5/89) [1990] ECR I-3437 . . . 779 Commission v Germany (C-62/90) [1992] ECR I-2575 . . . 671 Commission v Germany (C-493/99) [2001] ECR I-8163 . . . 674 Commission v Germany (C-103/01) [2003] ECR I-5369 . . . 432 Commission v Germany (C-318/05) [2007] ECR I-6957 . . . 547 Commission v Germany (C-456/05) [2007] ECR I-10517 . . . 674 Commission v Germany (C-141/07) [2008] ECR I-6935 . . . 686 Commission v Germany (C-369/07) [2009] ECR I-7811 . . . 548 Commission v Germany (C-518/07) [2010] ECR I-1885 . . . 432 Commission v Germany (C-142/16) EU:C:2017:301 . . . 707 Commission v Greece (68/88) [1989] ECR 2965 . . . 682, 761 Commission v Greece (C-200/88) [1990] ECR I-4299 . . . 815 Commission v Greece (C-290/94) [1996] ECR I-3285 . . . 556 Commission v Greece (C-140/03) [2005] ECR I-3177 . . . 673 Commission v Greece (C-178/05) [2007] ECR I-4185 . . . 762 Commission v Greece (C-460/08) 10 December 2009 . . . 547 Commission v Hellenic Republic (C-185/96) [1998] ECR I-6601 . . . 547, 553 Commission v Hellenic Republic (C-187/96) [1998] ECR I-1095 . . . 547 Commission v IIC Informations-Industrie Consulting GmbH (T-500/04) [2007] ECR II-1443 . . . 611 Commission v Ireland (113/80) [1981] ECR 1625 . . . 548 Commission v Ireland (249/81) [1982] ECR 4005 . . . 548 Commission v Ireland (45/87) [1988] ECR 4929 . . . 548 Commission v Ireland (C-354/99) [2001] ECR I-7657 . . . 682, 761 Commission v Ireland (C-418/04) [2007] ECR I-10947 . . . 708

Commission v Ireland (C-89/08 P) [2009] ECR I-11245 . . . 350, 352, 353, 370 Commission v Italy (154/85) [1987] ECR 2717 . . . 548 Commission v Italy (225/85) [1987] ECR 2625 . . . 555 Commission v Italy (C-129/00) [2003] ECR I-14637 . . . 778 Commission v Italy (270/02) [2004] ECR I-1559 . . . 671 Commission v Italy (C-260/04) [2007] ECR I-7083 . . . 392 Commission v Italy (C-263/05) [2007] ECR I-11745 . . . 707 Commission v Italy (C-132/06) [2008] ECR I-5457 . . . 506 Commission v Italy (C-304/09) [2010] ECR I-13903 . . . 726 Commission v Italy (C-379/10) EU:C:2011:775 . . . 788 Commission v Jégo-Quéré & Cie SA (C-263/02 P) [2004] ECR I-3425 . . . 149, 317, 318, 332, 338 Commission v Koninklijke FrieslandCampina NV (C-519/07 P) [2009] ECR I-8945 . . . 622, 629 Commission v Lisrestal (C-32/95 P) [1996] ECR I-5373 . . . 312, 314, 350 Commission v Luxembourg (C-111/91) [1993] ECR I-817 . . . 553 Commission v Luxembourg (C-473/93) [1996] ECR I-3207 . . . 554–557 Commission v Luxembourg (C-472/98) [2002] ECR I-9741 . . . 409 Commission v Luxembourg (C-445/03) [2004] ECR I-10191 . . . 674 Commission v Luxembourg (C-319/06) [2008] ECR I-4323 . . . 683 Commission v Malta (C-76/08 R) [2008] ECR I-64 . . . 723 Commission v Netherlands (C-41/02) [2004] ECR I-11375 . . . 672, 709 Commission v Netherlands (C-299/02) [2004] ECR I-9761 . . . 673 Commission v Portugal (C-458/08) 18 Nov 2010 . . . 674 Commission v Schneider Electric SA (C-440/07 P) [2009] ECR I-6413 . . . 738 Commission v Scott SA (C-290/07) 2 September 2010 . . . 465 Commission v Solvay SA (C-287–288/95 P) [2000] ECR I-2391 . . . 268 Commission v Spain (C-45/93) [1994] ECR I-911 . . . 559 Commission v Spain (C-94/08) [2008] ECR I-160 . . . 547

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLE OF CASES Commission v Sweden (C-468/98) [2002] ECR I-9575 . . . 409 Commission v Sytraval and Brink’s France (C-367/95 P) [1998] ECR I-1719 . . . 313, 365, 370 Commission v Technische Glaswerke Ilmenau GmbH (C-139/07 P) [2010] ECR I-5885 . . . 354, 395, 656 Commission v Tetra Laval (C-12/03 P) [2005] ECR I-987 . . . 458, 459, 470, 473, 475 Commission v T-Mobile Austria GmbH (C-141/02 P) [2005] ECR I-1283 . . . 368 Commission v UK (61/81) [1982] ECR 2601 . . . 585 Commission v UK (124/81) [1983] ECR 203 . . . 671 Commission v UK (40/82) [1982] ECR 2793 . . . 684 Commission v UK (165/82) [1983] ECR 3431 . . . 589 Commission v UK (207/83) [1985] ECR 1201 . . . 548 Commission v UK (C-383/92) [1994] ECR I-2479 . . . 682, 761 Commission v UK (C-359/97) [2000] ECR I-6355 . . . 762 Commission v UK (C-466/98) [2002] ECR I-9427 . . . 409 Commission v UK (C-508/03) [2006] ECR I-3969 . . . 615 Commission v UK (C-6/04) [2005] ECR I-9017 . . . 708 Commission and European Parliament v Council (C-137/12) EU:C:2013:675 . . . 406 Commune de Mesquer v Total France SA and Total International Ltd (C-188/07) [2008] ECR I-4501 . . . 708 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission (9 & 11/71) [1972] ECR 391 . . . 737, 752 Compagnie Française de l’Azote (COFAZ) SA v Commission (169/84) [1986] ECR 391 . . . 318 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission (54–60/76) [1977] ECR 645 . . . 752 Compagnie Interagra SA v Commission (217/81) [1982] ECR 2233 . . . 756 Compagnie Maritime Belge Transports SA and others v Commission (T-24–26 & 28/93) [1996] ECR II-1201 . . . 469 Compass-Datenbank GmbH v Republik Österreich (C-138/11) EU:C:2012:449 . . . 442 Comptoir National Technique Agricole (CNTA) SA v Commission (74/74) [1975] ECR 533 . . . 448, 450, 628, 740, 749

xix

Comunita Montana della Valnerina v Commission (T-340/00) [2003] ECR II-811 . . . 106 Comunità Montana della Valnerina v Commission (C-240/03 P) [2006] ECR I-731 . . . 666 Conegate v Customs and Excise Commissioners (121/85) [1986] ECR 1007 . . . 685 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission (T-427/08) EU:T:2010:517 . . . 364, 460 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission (T-712/14) EU:T:2017:748 . . . 364 Conley King v The Sash Window Workshop Ltd and Richard Dollar (C-214/16) EU:C:2017:439 . . . 512, 516 Connolly v Commission (C-274/99 P) [2001] ECR I-1611 . . . 521, 662 Conserve Italia Soc Coop arl v Commission (C-500/99 P) [2002] ECR I-867 . . . 106, 616, 666 Conserve Italia Soc Coop rl v Commission (T-186/00) [2003] ECR II-719 . . . 666 Conserve Italia Soc Coop rl v Commission (T-305/00) [2003] ECR II-5659 . . . 666 Conserve Italia Soc Coop rl v Commission (T-306/00) [2003] ECR II-5705 . . . 667 Consorzio Cooperative d’Abruzzo v Commission (15/85) [1987] ECR 1005 . . . 615 Consorzio Gruppo di Azioni Locale Murgia Messapica v Commission (T-456/93) [1994] ECR II-361 . . . 619 Costantini v European Commission (T-44/14) EU:T:2016:223 . . . 423 Consten & Grundig v Commission (56 & 58/64) [1966] ECR 299 . . . 362, 450 Coote v Granada Hospitality Ltd (C-185/97) [1998] ECR I-5199 . . . 762 Cordis Obst und Gemuse GrossHandel GmbH v Commission (T-18/99) [2001] ECR II-913 . . . 626, 739, 754, 756, 757 Corporación Dermoestética SA v To Me Group Advertising Media (C-500/06) [2008] ECR I-5785 . . . 687 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova (C-18/93) [1994] ECR I-1783 . . . 286 Corsten (C-58/98) [2000] ECR I-7919 . . . 674 Corus v UK (C-199/99 P) EU:C:2003:531 . . . 355 Corus UK Ltd v Commission (T-171/99) [2001] ECR II-2967 . . . 729, 753 Costa v ENEL (6/64) [1964] ECR 585 . . . 282

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xx

TABLE OF CASES

Cotter and McDermott v Minister for Social Welfare and Attorney General (C-377/89) [1991] ECR I-1155 . . . 765 Council v in’t Veld (C-350/12 P) EU:C:2014:2039 . . . 396, 397 Council of the European Union v Access Info Europe (C-280/11 P) EU:C:2013:671 . . . 396 Council of the European Union v Bank Mellat (C-176/13 P) EU:C:2016:96 . . . 356, 462 Council of the European Union v Bank Saderat Iran (C-200/13 P) EU:C:2016:284 . . . 356, 462 Council of the European Union v Hamas (C-79/15 P) EU:C:2017:584 . . . 462 Courage Ltd v Crehan (C-453/99) [2001] ECR I- 6297 . . . 779, 782 Cowan v Le Trésor Public (186/87) [1989] ECR 195 . . . 559 Criminal Proceedings against Bernaldez (C-129/94) [1996] ECR I-1829 . . . 287 Criminal Proceedings against Bordessa, Mellado and Maestre (C-358 and 416/93) [1995] ECR I-361 . . . 675 Criminal Proceedings against Burmanjer, Van der Linden and de Jong (C-20/03) [2005] ECR I-4133 . . . 671 Criminal Proceedings against Carra (C-258/98) [2000] ECR I-4217 . . . 582 Criminal Proceedings against E and F (C-550/09) 29 June 2010 . . . 338, 604 Criminal Proceedings against Grado and Bashir (C-291/96) [1997] ECR I-5531 . . . 505 Criminal Proceedings against John Greenham and Leonard Abel (C-95/01) [2004] ECR I-1333 . . . 515, 709 Criminal Proceedings against Keck and Mithouard (C-267 & 268/91) [1993] ECR I-6097 . . . 438, 692 Criminal Proceedings against Leon Motte (247/84) [1985] ECR 3887 . . . 696 Criminal Proceedings against Linhart and Biffl (C-99/01) [2002] ECR I-9375 . . . 681 Criminal Proceedings against Mac Quen (C-108/96) [2001] ECR I-837 . . . 687 Criminal proceedings against Massimo Orsi and Luciano Baldetti (C-217 and 350/15) EU:C:2017:264 . . . 530 Criminal Proceedings against Max Rombi (C-107/97) [2000] ECR I-3367 . . . 605 Criminal Proceedings against Nunes and de Matos (C-186/98) [1999] ECR I-4883 . . . 682, 761 Criminal Proceedings against Paolo Lirussi and Francesca Bizzaro (175 & 178/98) [1999] ECR I-6881 . . . 695, 737

Criminal Proceedings against Placanica, Palazzese and Sorricchio (C-338, 359–360/04) [2007] ECR I-1891 . . . 683 Criminal Proceedings against Richardt and Les Accessoires Scientifiques SNC (C-367/89) [1991] ECR I-4621 . . . 690 Criminal Proceedings against Saddik (C-458/93) [1995] ECR I-511 . . . 286 Criminal Proceedings against Silvio Berlusconi and others (C-387, 391 & 403/02) [2005] ECR I-3565 . . . 682, 761 Criminal Proceedings against Skanavi and Chryssanthakopoulos (C-193/94) [1996] ECR I-929 . . . 674 Criminal Proceedings against Sunino and Data (C-2/96) [1996] ECR I-1543 . . . 286 Criminal Proceedings against X (C-74/95 and 129/95) [1996] ECR I-6609 . . . 486 Crispoltoni v Fattoria Autonoma Tabachi and Donatab (C-133, 300 & 362/93) [1994] ECR I-4863 . . . 625, 646 CSL Behring GmbH v European Commission and European Medicines Agency (EMA) (T-264/07) EU:T:2010:371 . . . 623 CSR PAMPRYL v Commission (T-114/99) [1999] ECR I-3331 . . . 331 CT Control (Rotterdam) BV and JCT Benelux BV v Commission (C-121–122/91) [1993] ECR I-3873 . . . 732 Czech Republic v European Commission (C-696/15 P) EU:C:2017:595 . . . 133 D and Sweden v Council (C-122 and 125/99 P) [2001] ECR I-4319 . . . 594 D’Hoop v Office National de L’Emploi (C-224/98) [2002] ECR I-6191 . . . 565 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie (28–30/62) [1963] ECR 31 . . . 281, 282 Daewoo Electronics Manufacturing España SA (Demesa) and another v Commission (C-183 and 187/02 P) [2004] ECR I-10609 . . . 624 Dalmine SpA v Commission (C-407/04 P) [2007] ECR I-829 . . . 375, 468 Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet (C-94/10) EU:C:2011:674 . . . 792 Danielsson v Commission (T-219/95 R) [1995] ECR II-3051 . . . 724 Dano v Jobseeker Leipzig (C-333/13) EU:C:2014:2358 . . . 565, 568 Danqua v Minister for Justice and Equality (C-429/15) EU:C:2016:789 . . . 782

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLE OF CASES Dansk Automat Brancheforening v European Commission (T-601/11) EU:T:2014:839 . . . 344 Dansk Rørindustri A/S and others v Commission (C-189, 202, 205, 208, and 213/02 P) [2005] ECR I-5425 . . . 604, 605, 631, 632 Danzer and Danzer v Council (T-47/02) [2006] ECR II-1779 . . . 737 Daouidi v Bootes Plus SL (C-395/15) EU:C:2016:917 . . . 507 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd (C-43/95) [1996] ECR I-4661 . . . 560 De Boer Buizen v Council and Commission (81/86) [1987] ECR 3677 . . . 752 de Peijper (104/75) [1976] ECR 613 . . . 671 De Vos v Bielefeld (C-315/94) [1996] ECR I-1417 . . . 553 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany (C-279/09) [2010] ECR I-13; EU:C:2010:811 849 . . . 529, 664, 774 Defrenne v Sabena (149/77) (Defrenne III) [1978] ECR 1365 . . . 485, 583, 584, 589 Defrenne v Société Anonyme Belge de Navigation Aérienne (43/75) [1976] ECR 455 . . . 500, 559, 588 Dekker v Stichting voor Jong Volwassenen (VJV) Plus (C-177/88) [1990] I-ECR 3941 . . . 764 Delacre v Commission (C-350/88) [1990] ECR I-395 . . . 622, 625 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde (C-650/13) EU:C:2015:648 . . . 522 Demarchi Gino Sas v Ministero della Giustizia (C-177/17) EU:C:2017:656 . . . 507 Demo-Studio Schmidt v Commission (210/81) [1983] ECR 3045 . . . 363 Denise Richez-Parise v Commission (19, 20, 25, 30/69) [1970] ECR 325 . . . 745 Denka International BV v Commission (334/07) [2009] ECR II-4205 . . . 603, 647, 698 Denkavit Futtermittel GmbH v Finanzamt Warendorf (139/77) [1978] ECR 1317 . . . 579, 580 Denkavit International v Bundesamt für Finanzen (C-283, 291 and 292/94) [1996] ECR I-5063 . . . 789 Denkavit International BV v Kamer van Koophandel en Fabrieken voor MiddenGelderland (C-2/94) [1996] ECR I-2827 . . . 769 Denkavit Italiana (61/79) [1980] ECR 1205 . . . 762 Der Grüne Punkt-Duales System Deutschland GmbH v Commission (C-385/07 P) [2009] ECR I-6155 . . . 360

xxi

Dereci (C-256/11) [2011] ECR I-11315 . . . 573 Detti v ECJ (144/82) [1983] ECR 2439 . . . 619 Deufil Gmbh & Co KG v Commission (310/85) [1987] ECR 901 . . . 449 Deuka, Deutsche Kraft futter GmbH, B J Stolp v Einfuhr-und Vorratsstelle für Getreide und Futtermittel (78/74) [1975] ECR 421 . . . 448 Deutsche Milch-Kontor GmbH v Germany (205–215/82) EU:C:1983:233; [1983] ECR 2633 . . . 5, 779 Deutsche Paracelsus Schulen für Naturheilverhafen GmbH v Grabner (C-294/00) [2002] ECR I-6515 . . . 687 Deutsche Post AG v Gesellschaft für Zahlungssyteme mbH and Citicorp Kartenservice GmbH (147–148/97) [2000] ECR I-825 . . . 582 Deutsche Telekom AG v European Commission (C-280/08) [2010] ECR I-9555 . . . 370 Deutsche Telekom AG v European Commission (T-210/15) EU:T:2017:224 . . . 396, 525 Deutsche Telekom v Schröder (C-50/96) [2000] ECR I-743 . . . 762 Di Leonardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero (C-37 and 38/02) [2004] ECR I-6911 . . . 625 Dieckmann & Hansen GmbH v Commission (T-155/99) [2001] ECR II-3143 . . . 629, 630, 638 Dietz v Commission (126/76) [1977] ECR 2431 . . . 757 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (293 and 594/12) EU:C:2014:238 . . . 514, 657, 663 Dilexport v Amministrazione delle Finanze dello Stato (C-343/96) [1999] ECR I-579 . . . 774, 778 Dillenkofer and others v Federal Republic of Germany (C-178–179, 188–190/94) [1996] ECR I-4845 . . . 789 DIR International Film Srl and others v Commission (T-369/94 & 85/95) [1998] ECR II-357 . . . 169, 631 DIR International Film Srl and others v Commission (C-164/98 P) [2000] ECR I-447 . . . 169, 728 Director, Office of Workers’ Compensation Programs, Department of Labor v Greenwich Collieries Director 114 S Ct 2251 (1994) . . . 470 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze (C-395/00) [2002] ECR I-11877 . . . 312, 350 Dita Danosa v LKB Lizings SIA (C-232/09) 11 November 2010 . . . 550

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxii

Table of Cases

Dorsch Consult (T-184/95) [1998] ECR II-667 . . . 747, 752 Dorsch Consult Ingenieurgesellschaf mbH v Council (C-237/98 P) [2000] ECR I-4549 . . . 752 Dounias v Ypourgio Oikonomikon (C-228/98) [2000] ECR I-577 . . . 762 Douwe Egberts NV v Westrom Pharma NV (C-239/02) [2004] ECR I-7007 . . . 671 Dover v European Parliament (T-149/09 R) [2009] ECR II-66 . . . 724 Dow AgroSciences Ltd v European Commission (T-475/07) EU:T:2011:445 . . . 456, 699 Dow Chemical v Commission (T-42/07) 13 July 2011 . . . 35 Draehmpaehl v Urania Immobilienservice (C-180/95) [1997] ECR I-2195 . . . 585 Driessen en Zonen v Minister van Verkeer en Waterstaat (C-13–16/92) [1993] ECR I-4751 . . . 623 Du Pont de Nemours (France) SAS v Commission (T-31/07) EU:T:2013:167 . . . 742 Du Pont de Nemours Italiana SpA v Unita Sanitaria Locale No 2 Di Carrara (C-21/88) [1990] ECR I-889 . . . 548 Dubois et Fils SA v Council and Commission (T-113/96) [1998] ECR II-125 . . . 659 Duff v Minister for Agriculture and Food Ireland and the Attorney General (C-63/93) [1996] ECR I-569 . . . 625 Dumortier Frères SA v Council (64, 113/76, 167, 239/78, 27, 28, 45/79) [1979] ECR 3091 . . . 741, 746 Dunsmuir v New Brunswick [2008] 1 SCR 190 . . . 443 Duravit AG v European Commission (C-609/13 P) EU:C:2017:46 . . . 356 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal (C-614/12 and 10/13) EU:C:2014:30 . . . 507 Dynamic Medien Vertriebs GmbH v Avides Media AG (C-244/06) [2008] ECR I-505 . . . 686 EAR v Karatzoglou (C-213/06 P) [2007] ECR I-6733 . . . 639 Eau de Cologne and Parfumerie-Fabrik Glockengasse No 4711 KG v Provide Srl (C-150/88) [1989] ECR 3891 . . . 286 Eco Swiss China Time Ltd v Benetton International NV (C-126/97) [1999] ECR I-3055 . . . 772, 774 Edeka v Federal Republic of Germany (245/81) [1982] ECR 2745 . . . 625 Edis v Ministero delle Finanze (C-231/96) [1998] ECR I-4951 . . . 768, 774

Éditions Odile Jacob SAS v European Commission (T-471/11) EU:T:2014:739 . . . 460, 602, 732, 733 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission (T-44, 119, 126/01) [2003] ECR II-1209 . . . 737 EEB and Stichting Natuur en Milieu v Commission (T-236 & 241/04) [2005] ECR II-4945 . . . 338 Efisol SA v Commission (T-336/94) [1996] ECR II-1343 . . . 626, 628, 743 Efler v European Commission (T-754/14) EU:T:2017:32 . . . 150 Einfuhr-und Vorratsstelle für Getreide und Futtermittel v Firma C Mackprang (2/75) [1975] ECR 607 . . . 624 Einfuhr- und Vorrasstelle fur Getreide und Futtermittel v Koster, Berodt & Co (25/70) [1970] 2 ECR 1161 . . . 114, 116 Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit (C-449/08) [2009] ECR I-10241 . . . 625 Elisa María Mostaza Claro v Centro Móvil Milenium SL (C-168/05) [2006] ECR I-10421 . . . 772 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas (C-260/89) [1991] ECR I-2925 . . . 486, 531 Eman and Sevinger v College van burgemeester en wethouders van Den Haag (C-300/04) [2006] ECR I-8055 . . . 792 Embassy Limousines & Services v European Parliament (T-203/96) [1998] ECR II-4239 . . . 621 EMC Development AB v European Commission (T-432/05) EU:T:2010:189 . . . 364 Emerald Meats Ltd v Commission (C-106 and 317/90 and 129/91) [1993] ECR I-209 . . . 331 Emesa Sugar (Free Zone) NV v Aruba (C-17/98) [2000] ECR I-675 . . . 475 Emmott v Minister for Social Welfare (C-208/90) [1991] ECR I-4269 . . . 764 Emsland-Stärke GmbH v Landwirtschaft skammer Hannover (C-94/05) [2006] ECR I-2619 . . . 665 EnBW Kernkraft GmbH v Commission (T-283/02) [2005] ECR II-913 . . . 619, 744 Enderby v Frenchay Health Authority and the Secretary of State for Health (127/92) [1993] ECR 5535 . . . 587, 588 Enso Española SA v Commission (T-348/94) [1998] ECR II-1875 . . . 360 ENU v Commission (T-458 & 523/93) [1995] ECR II-2459 . . . 744

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Enviro Tech Europe Ltd and Enviro Tech International, Inc v European Commission (T-291/04) EU:T:2011:760 . . . 456 Environmental Defense Fund Inc v Ruckelshaus, 439 F2d 584 (DC Cir 1971) . . . 478 ER v Council and Commission (T-138/03) [2006] ECR II-4923 . . . 747, 754, 755, 756 Eridania and others v Council (T-168/95 R) [1995] ECR II-2817 . . . 724 Eridania SpA v Azienda Agricola San Luca di Rumagnoli Viannj (C-289/97) [2000] ECR I-5409 . . . 463 Eridania Zuccherifici Nazionali v Ministre de l’Agriculture et des Forêts (230/78) [1979] ECR 2749 . . . 577, 579 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal (C-56/13) EU:C:2014:352 . . . 507 Erzeugerorganisation Tiefühlgemüse eGen v Agrarmarkt Austria (C­516/16) EU:C:2017:1011 . . . 640 Estabelecimentos Isidore M Oliveira SA v Commission (T-73/95) [1997] ECR II-381 . . . 624 Etablissments Biret et Cie SA v Council (T-210/00) [2002] ECR II-47 . . . 747 Etimine SA v Secretary of State for Work and Pensions (C-15/10) EU:C:2011:50 . . . 456 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba (C-74/14) EU:C:2016:42 . . . 782 Eugénio Branco Ld v Commission (T-347/03) [2005] ECR II-2555 . . . 624 Euroagri Srl v Commission (T-180/01) [2004] ECR II-369 . . . 610, 611 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni (C­560/15) EU:C:2017:593 . . . 619 European Commission v Federal Republic of Germany (C-426/13 P(R)) EU:C:2013:848 . . . 723 European Commission v Hansestadt Lübeck (C-524/14 P) EU:C:2016:97 . . . 339 European Commission v Kadi (C-584, 593 and 595/10 P) EU:C:2013:518 . . . 312, 350, 356, 462 European Commission v Moravia Gas Storage as (C­596/13 P) EU:C:2015:203 . . . 603 European Commission v Netherlands (C-233/14) EU:C:2016:396 . . . 571 European Commission v UK (C-640/13) EU:C:2014:2457 . . . 776 European Commission v UK (C-308/14) EU:C:2016:436 . . . 568 European Medical Association (EMA) v European Commission (T-116/11) EU:T:2013:634 . . . 753

xxiii

European Medicines Agency (EMA) v InterMune UK Ltd (C-390/13 P(R)) EU:C:2013:795 . . . 723 European Night Services v Commission (T-374, 375, 384 and 388/94) [1998] ECR II-3141 . . . 376, 481 European Ombudsman v Frank Lamberts (C-234/02 P) [2004] ECR I-2803 . . . 736, 737, 817, 818 European Ombudsman v Staelen (C-337/15 P) [2017] ECR II-220 . . . 818 European Parliament v Commission (C-156/93) [1995] ECR I-2019 . . . 119, 133 European Parliament v Commission (C-65/13) EU:C:2014:2289 . . . 141, 146 European Parliament v Commission and Council (C-103 and 165/12) EU:C:2014:334 . . . 423 European Parliament and Council v Commission (C-286/14) EU:C:2016:183 . . . 141, 145, 146, 730 European Parliament v Council (302/87) [1988] ECR 5615 . . . 272 European Parliament v Council (C-70/88) [1990] ECR I-2041 . . . 272 European Parliament v Council (C-295/90) [1992] ECR I-4193 . . . 421, 728 European Parliament v Council (Government Procurement) (C-360/93) [1996] ECR I-1195 . . . 728 European Parliament v Council (C-417/93) [1995] ECR I-1185 . . . 119 European Parliament v Council (Road Taxes) (C-21/94) [1995] ECR I-1827 . . . 728, 732 European Parliament v Council (Re the Edicom Decision) (C-271/94) [1996] ECR I-1689 . . . 422 European Parliament v Council (C-41/95) [1995] ECR I-4411 . . . 730 European Parliament v Council (C-259/95) [1997] ECR I-5303 . . . 119 European Parliament v Council (C-392/95) [1997] ECR I-3213 . . . 729 European Parliament v Council (Telematic Networks) (C-22/96) [1998] ECR I-3231 . . . 728 European Parliament v Council (C-93/00) [2001] ECR I-10119 . . . 729 European Parliament v Council (C-436/03) [2006] ECR I-3733 . . . 422 European Parliament v Council (C-133/06) [2008] ECR I-3189 . . . 121 European Parliament v Council (C-166/07) [2009] ECR I-7135 . . . 730 European Parliament v Council (C-363/14) EU:C:2015:579 . . . 133

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxiv

Table of Cases

European Parliament v Gaspari (C-316/97 P) [1998] ECR I-7597 . . . 370 European Parliament and European Commission v Council (C-124–125/13) EU:C:2015:790 . . . 730 European Training Foundation (ETF) v Pia Landgren (T-404/06 P) [2009] ECR II-2841 . . . 640 European Wire Rope Importers Association (EWRIA) v Commission (T-369/08) [2010] ECR II-6283 . . . 731 EU-Wood-Trading GmbH v SonderabfalManagement-Gesellschaf Rheinland-Pfalz mbh (C-277/02) [2004] ECR I-11957 . . . 686 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers’ Bureau (C-63/01) [2003] ECR I-14447 . . . 771, 790 Evropaïki Dynamiki-Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission (T-300/07) EU:T:2010:372 . . . 463 Executif Régional Wallon and Glaverbel SA v Commission (62 & 72/87) [1988] ECR 1573 . . . 449 Extramet Industrie SA v Council (C-358/89) [1991] ECR I-2501 . . . 334 Eyckeler & Malt AG v Commission (T-42/96) [1998] ECR II-401 . . . 353, 354, 356 Falck SpA and Accialierie di Bolzano SpA v Commission (C-74 and 75/00) [2002] ECR I-7869 . . . 366, 381, 602, 622 Fantask A/S v Industriministeriet (C-188/95) [1997] ECR I-6783 . . . 768 Fazenda Pública v Camara Municipal do Porto (C-446/98) [2000] ECR I-11435 . . . 772 Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO) (T-95/06) [2008] ECR II-31 . . . 338 Fédération Charbonnière de Belgique v High Authority (8/55) [1956] ECR 245 . . . 405, 576, 643 Fédération Française des Sociétés d’Assurances (FFSA) v Commission (T-106/95) [1997] ECR II-229 . . . 442 Fédération internationale de football association (FIFA) v European Commission (T-68/08) [2011] ECR II-349 . . . 659 Fédération Nationale d’Agriculture Biologique des Regions de France v Council (C-345/00 P) [2001] ECR I-3811 . . . 274 Fédération Nationale du Commerce Exterieur des Produits Alimentaires v France (C-354/90) [1991] ECR I-5505 . . . 779

Federcoopesca v European Commission (T-312/14) EU:T:2015:472 . . . 344, 346 Ferriere Nord SpA v Commission (T-176/01) [2004] ECR II-3931 . . . 634 Ferriere Nord SpA v Commission (C-49/05 P) [2008] ECR I-68 . . . 634 Ferring SA v Agence Centrale des Organismes de Securité Sociale (ACOSS) (C-53/00) [2001] ECR II-9067 . . . 442 FIAMM v Council and Commission (C-120–121/06 P) [2008] ECR I-6513 . . . 740, 752 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano (C-49/14) EU:C:2016:98 . . . 774 Finanzamt Bergisch Gladbach v HE (C-25/03) [2005] ECR I-3123 . . . 680 Finanzamt Goslar v Brigitte Breitsohl (C-400/98) [2000] ECR I-4321 . . . 603 Finsider v Commission (C-363–4/88) [1992] ECR I-359 . . . 747 Fiorini (neé Cristini) v Société Nationale des Chemins de Fer Français (32/75) [1975] ECR 1085 . . . 552, 690 Firma A Racke v Hauptzollamt Mainz (98/78) [1979] ECR 69 . . . 447, 448, 450, 451, 602 Firma A Racke v Hauptzollamt Mainz (283/83) [1984] ECR 3791 . . . 576 Firma Foto-Frost v Hauptzollamt Lubeck-Ost (314/85) [1987] ECR 4199 . . . 282, 305, 336, 725 Firma Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg (79/77) [1978] ECR 611 . . . 577 Firma Leon Van Parys NV and Pacific Fruit Company NV v Commission (T-160/98) [2002] ECR II-233 . . . 756 Firma Wilhelm Fromme v Bundesanstalt für Landwirtschaftliche Marktordnung (54/81) [1982] ECR 1449 . . . 778 Fiskano v Commission (C-135/92) [1994] ECR I-2885 . . . 314, 352 Flemmer v Council and Commission (C-80–82/99) [2001] ECR I-7211 . . . 605 Flos SpA v Semeraro Casa e Famiglia SpA (C-168/09) EU:C:2011:29 . . . 607 FMC Corp v European Commission (T-197/06) EU:T:2011:282 . . . 356 FMC Foret v Commission (T-191/06) [2011] ECR II-2959 . . . 358 Football Association Premier League Ltd and Others v QC Leisure (C-403 and 429/08) EU:C:2011:631 . . . 675 Forde-Reederie GmbH v Council and Commission (T-170/00) [2002] ECR II-515 . . . 752 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council (T-410/06) 4 March 2010 . . . 313, 350

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council (C-141/08 P) [2009] ECR I-9147 . . . 313, 350 France v Commission (C-301/87) [1990] ECR I-307 . . . 352 France v Commission (Re Pension Funds Communication) (C-57/95) [1997] ECR I-1627 . . . 266 France v Commission (C-235/97) [1998] ECR I-7555 . . . 89 France v Commission (C-456/00) [2002] ECR I-11949 . . . 467 France v Commission (C-393/01) [2003] ECR I-5405 . . . 706 France v Commission (T-257/07 R) [2007] ECR II-4153 . . . 723 France v European Commission (T-344/15) EU:T:2017:250 . . . 397 France, SCPA and EMC v Commission (C-68/94 & 30/95) [1998] ECR I-1375 . . . 470 France Télécom SA v Commission (T-339/04) [2007] ECR II-521 . . . 433 France Télécom SA v Commission (T-340/04) [2007] ECR II-573 . . . 375 France-Aviation v Commission (T-346/94) [1995] ECR II-2841 . . . 353 Franchet and Byk v Commission (T-391/03 & 70/04) [2006] ECR II-2023 . . . 397 François Vainker and Brenda Vainker v European Parliament (T-48/01) [2004] ECR IA-51 . . . 749 Francovich and Bonifaci v Italy (C-6/90 & C-9/90) [1991] ECR I-5357 . . . 218, 274, 541, 782, 783, 792 Freers and Speckmann v Deutsche Bundespost (C-278/93) [1996] ECR I-1165 . . . 587, 679 Freistaat Sachsen v Commission (T-357/02) [2007] ECR II-1261 . . . 602 Freistaat Sachsen and Volkswagen Ag and Volkswagen Sachsen GmbH v Commission (C-57 and 61/00 P) [2003] ECR I-9975 . . . 466 French Republic v Commission (T-240/04) [2007] ECR II-4035 . . . 405, 601 French Republic v European Commission (T-549/13) EU:T:2016:6 . . . 465 Fresh Marine Company SA v Commission (T-178/98) [2000] ECR II-3331 . . . 743, 744, 745, 747 Frico v VIV (424–425/85) [1987] ECR 2755 . . . 619 Friedrich G Barth v Bundesministerium für Wissenschaft und Forschung (C-542/08) 15 April 2010 . . . 774 Front Polisario v Council (T-512/12) EU:T:2015:953 . . . 344

xxv

Frucona Košice as v European Commission (T-103/14) EU:T:2016:15 . . . 728 Fuji Electric Co v Commission (T-132/07) EU:T:2011:344 . . . 519 Fuss v Stadt Halle (C-429/09) 25 November 2010 . . . 785 Fux v Commission (26/68) [1969] ECR 145 . . . 749 Galileo International Technology LLC v Commission (T-279/03) [2006] ECR II-1291 . . . 748, 750 Garage Molenheide BVBA v Belgische Staat (C-286/94, 340 and 401/95, and 47/96) [1997] ECR I-7281 . . . 680 Gauweiler v Deutscher Bundestag (C-62/14) EU:C:2015:400 . . . 645 GE Betz, Inc, formerly BetzDearborn Inc v OHIM (T-107/02) [2004] ECR II-1845 . . . 619 GEA Group AG v European Commission (T-189/10) EU:T:2015:504 . . . 312, 353 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen (C-143/93) [1996] ECR I-431 . . . 601 Gebrüder Lorenz GmbH v Germany (120/73) [1973] ECR 1471 . . . 362, 365 Geitling v High Authority (36, 37, 38, & 40/59) [1960] ECR 423 . . . 485 Geitling, Mausegatt and Prasident v High Authority (16–18/59) [1960] ECR 17 . . . 362 Germany v Commission (24/62) [1963] ECR 63 . . . 370, 371 Germany v Commission (34/62) [1963] ECR 131 . . . 576 Germany v Commission (84/82) [1984] ECR 145 . . . 365 Germany v Commission (281, 283–285, 287/85) [1987] ECR 3203 . . . 405 Germany v Commission (C-426/93) [1995] ECR I-3723 . . . 654 Germany v Commission (C-54/95) [1999] ECR I-35 . . . 89 Germany v Commission (C-399/95 R) [1996] ECR I-2441 . . . 723 Germany v Commission (C-301/96) [2003] ECR I-9919 . . . 370 Germany v Commission (C-239/01) [2003] ECR I-10333 . . . 731 Germany v Commission (T-374/04) [2007] ECR II-4431 . . . 631 Germany v Commission (T-74/07) [2009] ECR II-107 . . . 666 Germany v Council (C-280/93) [1994] ECR I-4973 . . . 475, 476, 521, 581, 659 Germany v European Parliament and Council (C-233/94) [1997] ECR I-2405 . . . 404, 431

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxvi

Table of Cases

Germany v European Parliament and Council (C-376/98) [2000] ECR I-8419 . . . 404, 424, 660 Germany v European Parliament and Council (C-380/03) [2006] ECR I-11573 . . . 405, 645 Germany v European Parliament and Council (C-113/14) EU:C:2016:635 . . . 730 Gestoras Pro Amnistia, Olano and Errasti v Council (C-354/04 P) [2007] ECR I-1579 . . . 268 Geven v Land Nordrhein-Westfalen (C-213/05) [2007] ECR I-6347 . . . 553 Gielen v Staatssecretaris van Financiën (C-440/08) [2010] ECR I-2323 . . . 287 Giuffrida v Council (105/75) [1976] ECR 1395 . . . 469 GlaxoSmithKline Services Unlimited v Commission (T-168/01) [2006] ECR II-2969 . . . 432 GlaxoSmithKline Services Unlimited v Commission (C-501, 513, 515 and 519/06 P) [2009] ECR I-9291 . . . 460 Gonnelli and AIFO v Commission (T-231/02) [2004] ECR II-1051 . . . 338 González y Díez, SA v Commission (T-25/04) [2007] ECR II-3121 . . . 465, 603 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute (C-77/09) [2010] ECR T-13533 . . . 456, 477, 647, 698, 699 Granaria BV v Hoofdprodukschap voor Akkerbouwprodukten (116/76) [1977] ECR 1247 . . . 665 Grant v South-West Trains Ltd (C-249/96) [1998] ECR I-621 . . . 594 Graphischer Maschinenbau GmbH v Commission (T-126/99) [2002] ECR II-2427 . . . 466, 731 Gravier v City of Liège (293/83) [1985] ECR 593 . . . 562, 563 Greater Boston Television Corp v Federal Communications Commission 444 F 2d 841, 850–53 (DC Cir 1970) . . . 478 Greece v Commission (C-259/87) [1990] ECR I-2845 . . . 753 Greece v Commission (C-278/00) [2004] ECR I-3997 . . . 624, 666 Gregorio My v ONP (C-293/03) [2004] ECR I-12013 . . . 286 Grifoni v EAEC (C-308/87) [1994] ECR I-341 . . . 748 Groener v Minister for Education (379/87) [1989] ECR 3967 . . . 548 Groupe Danone v Commission (C-3/06 P) [2007] ECR I-1331 . . . 604, 667

Groupement des Hauts Fourneaux et Acieries Belges v High Authority (8/57) [1957–8] ECR 245 . . . 579 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority (7 & 9/54) [1955–56] ECR 53 . . . 576 Grundig Italiana SpA v Ministero delle Finanze (C-255/00) [2002] ECR I-8003 . . . 775 Grundstuckgemeinschaft Schloßstraße GbR v Finanzamt Paderborn (C-396/98) [2000] ECR I-4279 . . . 603 GruSa Fleisch GmbH & Co KG v Hauptzollamt Hamburg-Jonas (C-34/92) [1993] ECR I-4147 . . . 602 Grynberg and Hall v Commission (T-534/93) [1994] ECR II-595 . . . 619 Guardian Europe Sàrl v European Union (T-673/15) EU:T:2017:37 . . . 747 Guerin Automobiles v Commission (C-282/95 P) [1997] ECR I-503 . . . 267 Haahr Petroleum v Havn (C-90/94) [1997] ECR I-4085 . . . 768 Haim v Kassenzahnärztliche Vereinigung Nordrhein (C-424/97) [2000] ECR I-5123 . . . 785, 791, 792 Hamcho International v Council of the European Union (T-153/15) EU:T:2016:630 . . . 313 Hameico Stuttgart GmbH v Council and Commission (T-99/98) [2003] ECR II-2195 . . . 737, 748 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (109/88) [1989] ECR 3199 . . . 585, 586 Hans-Martin Tillack v Commission (T-193/04) [2006] ECR II-3995 . . . 737, 740 Haralambidis (C-270/13) EU:C:2014:2185 . . . 555 Hartlauer (C-169/07) [2009] ECR I-1721 . . . 674 Hartmann v Freistaat Bayern (C-212/05) [2007] ECR I-6303 . . . 553 Hassan and Ayadi v Council and Commission (C-399 & 403/06) [2009] ECR I-11393 . . . 352 Hauer v Land Rheinland-Pfalz (44/79) [1979] ECR 3727 . . . 485, 660 Hauptzollamt Bremerhaven v Massey-Ferguson (8/73) [1973] ECR 897 . . . 421 Hauptzollamt Koblenz v Kurt und Thomas Etling in GbR (C-230–231/09) EU:C:2011: 271 . . . 605 Hauptzollamt München-Mitte v Technische Universitat München (C-269/90) [1991] ECR I-5469 . . . 314, 363

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Hautala v Council (C-353/99 P) [2001] ECR I-9565 . . . 393, 394, 656 Hayes and Hayes v Kronenberger GmbH (C-323/95) [1997] ECR I-1711 . . . 560 Health Food Manufacturers’ Association and Others v European Commission (T-296/12) EU:T:2015:375 . . . 316 HEG Ltd and Graphite India Ltd v Council (T-462/04) [2008] ECR II-3685 . . . 463 Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting (127/83) [1984] ECR 3435 . . . 365 Hellenic Republic v European Commission (T-233/11) EU:T:2015:948 . . . 466 Hellmut Marschall v Land Nordrhein Westfalen (C-409/95) [1997] ECR I-6363 . . . 591 Henri de Compte v EP (C-90/95 P) [1997] ECR I-1999 . . . 608, 609, 616, 618 Henri de Compte v European Parliament (141/84) [1985] ECR 1951 . . . 358 Herbert Smith Freehills LLP v Council of the European Union (T-710/14) EU:T:2016:49 . . . 397 Hercules Chemicals NV v Commission (C-51/92 P) [1999] ECR I-4235 . . . 355, 729 Hernández v Reino de España (Subdelegación del Gobierno de España en Alicante) (C-198/13) EU:C:2014:2055 . . . 507 Herpels v Commission (54/77) [1978] ECR 585 . . . 610, 618 Hijos de Andres Molina SA (HAMSA) v Commission (T-152/99) [2002] ECR II-3049 . . . 439, 442 Hill and Stapleton v Revenue Commissioners (C-243/95) [1998] ECR I-3739 . . . 587 Hirsch, Nicastro and Priesemann v ECB (T-94, 152 & 286/01) [2003] ECR IA-1 . . . 734 Hitachi v Commission (T-112/07) EU:T:2011:3871 . . . 356 HN v Minister for Justice, Equality and Law Reform (C-604/12) EU:C:2014:302 . . . 372 Hoechst GmbH v Commission (T-410/03) [2008] ECR II-881 . . . 357 Hoechst GmbH v Commission (T-161/05) [2009] ECR II-3555 . . . 356 Hoek Loos NV v Commission (T-304/02) [2006] ECR II-1887 . . . 733 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63) [1964] ECR 177 . . . 549 Hoffman’s Stärkefabriken v Hauptzollamt Bielefeld (2/77) [1977] ECR 1375 . . . 581 Hoffmann-La Roche v Commission (85/76) [1979] ECR 461 . . . 312

xxvii

Höfner and Elser v Macrotron GmbH (C-41/90) [1991] ECR I-1979 . . . 582 Holcim (Deutschland) AG v Commission (T-28/03) [2005] ECR II-1357 . . . 731, 753 Holcim (Deutschland) AG v Commission (C-282/05 P) [2007] ECR I-2941 . . . 731, 736, 742 Holcim (Romania) SA v European Commission (T-317/12) EU:T:2014:782 . . . 755 Holland Malt v Commission (T-369/06) [2009] ECR II-3313 . . . 624 Holtz & Willemsen v Council (153/73) [1974] ECR 675 . . . 581, 740 Hoogovens v High Authority (14/61) [1962] ECR 253 . . . 270, 362, 615 Hortiplant SAT v Commission (C-330/01) [2004] ECR I-1763 . . . 106 Hotel Cipriani SpA and Others v Commission (T-254, 270, 277/00) [2008] ECR II-3269 . . . 465 Humanplasma GmbH v Republik Österreich (C-421/09) [2010] ECR I-12869 . . . 683 Humblet v Belgium (6/60) EU:C:1960:48[1960] ECR 559 . . . 5, 759, 764 Hungary v Commission (T-310/06) [2007] ECR II-4619 . . . 465 Hungary v Commission (C-31/13 P) EU:C:2014:70 . . . 267 Hupeden & Co KG v Hauptzollamt HamburgJonas (C-295/94) [1996] ECR I-3375 . . . 665 Hyper Srl v Commission (T-205/99) [2002] ECR II-3141 . . . 356 Icap plc v European Commission (T­180/15) EU:T:2017:795 . . . 601 ICI v Commission (T-36–37/91) [1995] ECR II-1847 . . . 355 ICI v Commission (T-66/01) EU:T:2010:255 . . . 356 IFAW Internationaler Tierschultz-Fonds GmbH v Commission (T-168/02) [2004] ECR II-4135 . . . 397 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission (T-362/08) [2011] ECR II-11 . . . 656 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission (C-135/11 P) EU:C:2012:376 . . . 397 Ijssel-Vliet Combinatie BV v Minister van Economische Zaken (C-311/94) [1996] ECR I-5023 . . . 631 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (C-208/09) EU:C:2010:806 . . . 686 IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube v European Commission (T-18/05) [2010] ECR II-1769 . . . 667

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxviii

Table of Cases

Impact v Minister for Agriculture and Food (C-268/06) [2008] ECR I-2483 . . . 773 Industrie des Poudres Spheriques SA v Commission (T-5/97) [2000] ECR II-3755 . . . 364 Industrie des Poudres Spheriques v Council and Commission (C-458/98 P) [2000] ECR I-8147 . . . 149, 313, 350, 364, 525, 732 Industrie-en Handelsonderneming Vreugdenhil BV v Commission (C-282/90) [1992] ECR I-1937 . . . 741 Innova Privat-Akademie GmbH v Commission (T-273/01) [2003] ECR II-1093 . . . 620 INPS v Bruno, Pettini, Lotti, Mateucci (C-395 & 396/08) [2010] ECR I-5119 . . . 678 Interhotel v Commission (C-291/89) [1991] ECR I-2257 . . . 313, 350 Interhotel-Sociedade Internacional de Hoteis SARL v Commission (T-81/95) [1997] ECR II-1265 . . . 611–13 Intermodal Transports BV v Staatssecretaris van Financien (C-459/03) [2005] ECR I-8151 . . . 281 International Business Machines Corporation v Commission (60/81) [1981] ECR 2639 . . . 267 International Cadmium Association (ICdA) v European Commission (T-456/11) EU:T:2013:594 . . . 456 International Chemical Corporation v Amministrazione delle Finanze dello Stato (66/80) [1981] ECR 1191 . . . 282, 734 International Express Carriers Conference v Commission (T-133 and 204/95) [1998] ECR II-3645 . . . 468 International Express Carriers Conference (IECC) v Commission, La Poste, UK and the Post Office (C-449/98 P) [2001] ECR I-3875 . . . 364 International Fruit Company v Produktschap voor Groenten en Fruit (No 2) (51–54/71) [1971] ECR 1107 . . . 548 International Potash Company v Council (T-87/98) [2000] ECR II-3179 . . . 650, 651 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (C-438/05) [2007] ECR I-10779 . . . 687–9, 693 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel (11/70) [1970] ECR 1125 . . . 485, 643 Internationaler Hilfsfonds eV v European Commission (T-300/10) EU:T:2012:247 . . . 394 Interpipe Nikopolsky Seamless Tubes v Council (T-49/06) [2009] ECR II-383 . . . 463

Interporc Im- und Export GmbH v Commission (C-41/00 P) [2003] ECR I-2125 . . . 394, 732 Inuit Tapiriit Kanatami v European Commission (T-526/10) EU:T:2013:215 . . . 647 Inuit Tapiriit Kanatami v Parliament and Council (C-583/11 P) EU:C:2013:625 . . . 343, 347 Inuit Tapiriit Kanatami v European Commission (C-398/13 P) EU:C:2015:535 . . . 495, 530 Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon (63/76) [1976] ECR 2057 . . . 553 IPK-München GmbH v Commission (C-199–200/01 P) [2004] ECR I-4627 . . . 732 Ireks-Arkady v Council and Commission (238/78) [1979] ECR 2955 . . . 749, 750 Irish Farmers Association v Minister for Agriculture, Food and Forestry (Ireland) and the Attorney General (C-22/94) [1997] ECR I-1809 . . . 625 Italian Republic v Commission (13/63) [1963] ECR 165 . . . 577 Italy v Commission (C-253/97) [1999] ECR I-7529 . . . 89 Italy v Commission (C-372/97) [2004] ECR I-3679 . . . 666 Italy v Commission (C-99/99) [2000] ECR I-11535 . . . 465 Italy v Commission (C-298/00 P) [2004] ECR I-4087 . . . 622 Italy v Commission (C-91/01) [2004] ECR I-4355 . . . 467, 633 Italy v Council (C-340/98) [2002] ECR I-2663 . . . 625, 627 Italy v Council (C-120/99) [2001] ECR I-7997 . . . 463 Italy and Brandt Italia SpA v Commission (T-239 & 323/04) [2009] ECR II-3265 . . . 779 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit (C-208/05) [2007] ECR I-181 . . . 674 J van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit (C-222–225/05) [2007] ECR I-4233 . . . 771, 772 Jamal Ouariachi v Commission (T-124/04) [2005] ECR II-4653 . . . 750 JämställdhetsOmbudsmannen v Örebro läns landsting (C-236/98) [2000] ECR I-2189 . . . 587 Jean-Charles Marchiani v European Parliament (C-566/14) EU:C:2016:437 . . . 312, 350, 619 Jean-Claude Martinez, Charles de Gaulle, Front National and Emma Bonino v EP (T-222, 327 and 329/99) [2001] ECR II-2823 . . . 620, 656

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Jean-Paul François v Commission (T-307/01) [2004] ECR II-1669 . . . 732, 749 Jégo-Quéré et Cie SA v Commission (T-177/01) [2002] ECR II-2365 . . . 339 Jenkins v Kingsgate (Clothing Productions) Ltd (96/80) [1981] ECR 911 . . . 587 JFE Engineering Corp v Commission (T-67, 68, 71 and 78/00) [2004] ECR II-2501 . . . 636 Jippes v Minister van Landbouw, Natuurbeheer en Visserij (C-189/01) [2001] ECR I-5689 . . . 647 JingAo Solar Co Ltd v Council of the European Union (T­157/14) EU:T:2017:127 . . . 604, 659 JK Otsa Talu OÜ v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) (C-241/07) [2009] ECR I-4323 . . . 625 J N v Staatssecretaris van Veiligheid en Justitie (C-601/15 PPU) EU:C:2016:84 . . . 530 Job Centre coop arl (C-55/96) [1997] ECR I-7119 . . . 582 Jobcenter Berlin Neukölln v Nazifa Alimanovic (C-67/14) EU:C:2015:597 . . . 568 Johnson v Chief Adjudication Officer (C-410/92) [1994] ECR I-5483 . . . 768 Johnston v Chief Constable of the Royal Ulster Constabulary (222/84) [1986] ECR 1651 . . . 486, 589, 676, 762 Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich (C-228/07) [2008] ECR I-6989 . . . 549 Jőrös v Aegon Magyarország Hitel Zrt (C-397/11) EU:C:2013:340 . . . 772 Jose Maria Sison v Council (C-266/05 P) [2007] ECR I-1233 . . . 396, 645 Jose Marti Peix, SA v Commission (T-125/01) [2003] ECR II-865 . . . 731 Josep Peñarroja Fa (C-372–373/09) [2011] ECR I-1785 . . . 674 Julia Abad Pérez v Council of the European Union and Commission (T-304/01) [2006] ECR II-4857 . . . 742, 746, 747 Julius Kind AG v EEC (106/81) [1982] ECR 2885 . . . 579, 740 JZ (C-294/16 PPU) EU:C:2016:610 . . . 530 Kadi v European Commission (T-85/09) [2010] ECR II-5177 . . . 461, 475 Kadi and Al Barakaat International Foundation v Council and Commission (C-402 & C-415/05 P) [2008] ECR I-6351 . . . 350, 353, 461, 536, 657, 659, 730 Kahla/Thüringen Porzellan GmbH v Commission (T-20/03) [2008] ECR II-2305 . . . 465

xxix

Kahla Thüringen Porzellan GmbH v Commission (C-537/08 P) EU:C:2010:769 . . . 619 Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] ECR I-3051 . . . 590, 598 Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg (C-15/96) [1998] ECR I-47 . . . 547 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (C-167/01) [2003] ECR I-10155 . . . 674 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën (C-129–130/13) EU:C:2014:2041 . . . 313, 353, 361 Kampffmeyer v Commission (5, 7, 13–24/66) [1967] ECR 245 . . . 749, 754, 757 Kampffmeyer v Commission and Council (56–60/74) [1976] ECR 711 . . . 748 Kapniki Michaelidis AE v Idryma Koinonikon Asfaliseon (IKA) (C-441–442/98) [2000] ECR I-7145 . . . 778 Karl Meyer v Commission (T-333/01) [2003] ECR II-117 . . . 747 Karner Industrie-Auktionen GmbH v Troostwijk GmbH (C-71/02) [2004] ECR I-3025 . . . 685 Kaufring AG v Commission (T-186, 187, 190, 192, 210, 211, 216–218, 279–280, 293/97 & 147/99) [2001] ECR II-1337 . . . 353 Kemikalieinspektionen v Toolex Alpha AB (C-473/98) [2000] ECR I-5681 . . . 671, 696 Kempf v Staatssecretaris van Justitie (139/85) [1986] ECR 1741 . . . 549 Kendrion NV v European Union, represented by the Court of Justice of the European Union (T-479/14) EU:T:2017:48 . . . 747 Kenny v Minister for Justice, Equality and Law Reform (C-427/11) EU:C:2013:122 . . . 678 KG in der Firma Hans-Otto Wagner GmbH Agrarhandel v Bundesanstalt für Landwirtschaftliche Marktordnung (8/82) [1983] ECR 371 . . . 576, 577, 579 Khaled Boudjlida v Préfet des Pyrénées-Atlantiques (C-249/13) EU:C:2014:2431 . . . 314, 350 Kingdom of Sweden v Commission (T-229/04) [2007] ECR I-2437 . . . 700 Kiriaki Angelidaki and Others (C-378–380/07) [2009] ECR I-03071 . . . 773 Kirtruna SL and Elisa Vigano v Red Elite de Electrodomésticos SA (C-313/07) [2008] ECR I-7907 . . . 286 Kiselev v Council of the European Union (T-262/15) EU:T:2017:392 . . . 520 Kjell Karlsson (C-292/97) [2000] ECR I-2737 . . . 517, 518

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxx

Table of Cases

Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen (C-505/14) EU:C:2015:742 . . . 774 Klockner v Commission (303 and 312/81) [1983] ECR 1507 . . . 639 KME Germany v Commission (C-272/09) EU:C:2011:63 . . . 360 Knauf Gips KG v European Commission (C-407/08 P) EU:C:2010:389 . . . 356, 519 Köbler v Austria (C-224/01) [2003] ECR I-10239 . . . 787, 789 Kol v Land Berlin (C-285/95) [1997] ECR I-3069 . . . 624 Koldo Gorostiaga Atxalandabaso v European Parliament (C-308/07 P) [2009] ECR I-1059 . . . 360 Kone v Commission (T-151/07) EU:T:2011: 365 . . . 356 Konle v Austria (C-302/97) [1999] ECR I-3099 . . . 791 Kontouli v Council (T-416/04) [2006] ECR II-A-2 897 . . . 609, 616 Kowalska v Freie und Hansestadt Hamburg (33/89) [1990] ECR 2591 . . . 587, 679 Kramer (3, 4 and 6/76) [1976] ECR 1279 . . . 408 Kranemann v Land-Rheinland Westfalen (C-109/04) [2005] ECR I-2421 . . . 549 Kreil v Bundesrepublik Deutschland (C-285/98) [2000] ECR I-69 . . . 589, 676 Kremzow v Austria (C-299/95) [1997] ECR I-2629 . . . 486, 505 Krohn & Co Import-Export GmbH & Co KG v Commission (175/84) [1986] ECR 753 . . . 756 Kruger GmbH & Co KG v Hauptzollamt Hamburg-Jonas (C-334/95) [1997] ECR I-4517 . . . 726 Kuhl v Council (71/72) [1973] ECR 705 . . . 753 Kuijer v Council (T-211/00) [2002] ECR II-485 . . . 394 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (C-200/02) [2004] ECR I-9925 . . . 680 Kuratorium für Dialyse und Nierentransplantation v Lewark (C-457/93) [1996] ECR I-243 . . . 587, 679 Kusterman v Council and Commission (T-201/94) [2002] ECR II-415 . . . 736 Kutz-Bauer v Freie und Hansestadt Hamburg (C-187/00) [2003] ECR I-2741 . . . 679 KYDEP v Council and Commission (C-146/91) [1994] ECR I-4199 . . . 743 Kyocera Mita Europe BV v European Commission (C-553/14 P) EU:C:2015:805 . . . 344 Kyowa Hakko Kogyo Co Ltd and Kyowa Hakko Europe GmbH v Commission (T-223/00) [2003] ECR II-2553 . . . 619, 636

La Cinq SA v Commission (T-44/90) [1992] ECR II-1 . . . 383, 481 Laara, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland (C-124/97) [1999] ECR I-6067 . . . 522, 686 Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission (C-352/98 P) [2000] ECR I-5291 . . . 738, 741, 742, 744, 782, 786 Ladbroke Racing Ltd v Commission (T-67/94) [1998] ECR II-1 . . . 731 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator (C-258/08) [2010] ECR I-4757 . . . 686 Laga v Commission (T-93/95) [1998] ECR II-195 . . . 737 Lagardère SCA and Canal+ SA v Commission (T-251/00) [2002] ECR II-4825 . . . 608, 614, 616, 618 Lahorgue v Ordre des avocats du barreau de Lyon (C-99/16) EU:C:2017:391 . . . 674 Lair (39/86) [1988] ECR 3161 . . . 563, 570 Lamberts v European Ombudsman (T-209/00) [2002] ECR II-2203 . . . 736, 817, 818 Lämmerzahl GmbH v Freie Hansestadt Bremen (C-241/06) [2007] ECR I-8415 . . . 769, 773 Land Nordrehein-Westfalen v Beata Pokrzeptowicz-Meyer (C-162/00) [2002] ECR I-1049 . . . 605 Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen (C-64 & 65/96) [1997] ECR I-3171 . . . 565 Land Oberösterreich and Republic of Austria v Commission (C-439/454/05 P) [2007] ECR I-7141 . . . 350 Land Rheinland-Pfalz v Alcan Deutschland GmbH (C-24/95) [1997] ECR I-1591 . . . 779 Land-Baden Würtemberg v Tsakouridis (C-145/09) 23 November 2010 . . . 673 Landbrugsministeriet-EF-Direktoratet v Steff Houlberg Export (C-366/95) [1998] ECR I-2661 . . . 779 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheeer en Visserij (C-127/02) [2004] ECR I-7405 . . . 708 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal (C-7/94) [1996] ECR I-1031 . . . 552 Landeskreditbank BadenWürttemberg— Förderbank v European Central Bank (T-122/15) EU:T:2017:337 . . . 433 Larsy v INASTI (C-118/00) [2001] ECR I-5063 . . . 790

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (C-341/05) [2007] ECR I-11767 . . . 687, 693 Lawrie-Blum v Land Baden-Württemberg (66/85) [1986] ECR 2121 . . . 549, 555 Ledra Advertising Ltd v European Commission and European Central Bank (C-8–10/15) EU:C:2016:70 . . . 742 Leifer (C-83/94) [1995] ECR I-3231 . . . 690 Lemmerz-Werke v High Authority (111/63) [1965] ECR 677 . . . 608 Lenzing AG v Commission (T-36/99) [2004] ECR II-3597 . . . 439 Leon Van Parys NV v BIRB (C-377/02) [2005] ECR I-1465 . . . 739 Leone v Garde des Sceaux (C-173/13) EU:C:2014:2090 . . . 679 Les Laboratoires Servier v Commission (T-147/00) [2003] ECR II-85 . . . 698, 710 Levez v Jennings Ltd (C-326/96) [1998] ECR I-7835 . . . 769, 775 Levin v Staatssecretaris van Justitie (53/81) [1982] ECR 1035 . . . 549, 550 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (C-42/07) [2009] ECR I-7633 . . . 686 Lilly Industries Ltd v Commission (T-120/96) [1998] ECR II-2571 . . . 267 Limburgse Vinyl Maatschappij NV and others v Commission (T-305–7, 313–6, 318, 325, 328–9, and 335/94) [1999] ECR II-931 . . . 729, 733 Limburgse Vinyl Maatschappij v Commission (C-238, 244–245, 247, 250, 252 & 254/99 P) [2002] ECR I-8375 . . . 355, 495, 667 Lisrestal v Commission (T-450/93) [1994] ECR II-1177 . . . 312, 314, 350 Lommers v Minister van Landbouw, Natuurbeheer en Visserij (C-476/99) [2002] ECR I-2891 . . . 677 López Ostra v Spain (1995) 20 EHRR 513 . . . 513 Lord Inglewood v European Parliament (T­229 and 276/11) EU:T:2013:127 . . . 602 Louwage v Commission (148/73) [1974] ECR 81 . . . 631 LRAF 1998 A/S v Commission (T-23/99) [2002] ECR II-1705 . . . 626 Ludwigshafener Walzmuhle Erling KG v Council and Commission (197, 200, 243, 245, 247/80) [1981] ECR 3211 . . . 453, 576 Luhrs v Hauptzollamt Hamburg-Jonas (78/77) [1978] ECR 169 . . . 622 Luisi and Carbone v Ministero del Tesoro (286/82 & 26/83) [1984] ECR 377 . . . 559

xxxi

Luxembourg v European Parliament and Council (C-176/09) [2011] EU:C:2011:290 . . . 426, 463 M (C-277/11) EU:C:2012:744 . . . 353 M v Minister for Justice and Equality Ireland and the Attorney General (C-560/14) EU:C:2017:101 . . . 313, 350, 353 M v Ombudsman (T-412/05) [2008] ECR II-197 . . . 818 Maas & Co NV v Bundesanstalt für landwirtschaftliche Marktordnung (21/85) [1986] ECR 3537 . . . 665 Maatschap Toeters and M C Verberk v Productschap Vee en Vlees (C-171/03) [2004] ECR I-10945 . . . 646 Macikowski v Dyrektor Izby Skarbowej w Gdańsku (C-499/13) EU:C:2015:201 . . . 681 Magorrian and Cunningham v Eastern Health and Social Services Board (C-246/96) [1997] ECR I-7153 . . . 767 Malagutti-Vezinhet SA v Commission (T-177/02) [2004] ECR II-827 . . . 699 Manel Camós Grau v Commission (T-309/03) [2006] ECR II-1173 . . . 267 Mangold (C-144/04) [2005] ECR I-9981 . . . 500 Mannesmann AG v High Authority (19/61) [1962] ECR 357 . . . 643 Marcos v Korota SA and Fondo de Garantía Salarial (C-265/13) EU:C:2014:187 . . . 507 Maria Isabel Harmon v Owen Pardue (C-321/16) EU:C:2016:871 . . . 507 Maria Martinez Sala v Freistaat Bayern (C-85/96) [1998] ECR I-2691 . . . 565, 566 Markcx v Belgium (1979–80) 2 EHRR 330 . . . 513 Marks & Spencer plc v Commissioners of Customs & Excise (C-62/00) [2002] ECR I-6325 . . . 605, 666, 775 Marks & Spencer plc v Commissioners of Customs & Excise (C-309/06) [2008] ECR I-2283 . . . 778 Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] ECR 4135 . . . 690 Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) (C-271/91) [1993] ECR I-4367 . . . 585, 763, 777 Masdar (UK) Ltd v Commission (T-333/03) [2006] ECR II-4377 . . . 744 Masdar (UK) Ltd v Commission (C-47/07 P) [2008] ECR I-9761 . . . 619, 753

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxxii

Table of Cases

Maso and Gazzetta v INPS (C-373/95) [1997] ECR I-4051 . . . 792 Masterfoods Ltd v HB Ice Cream Ltd (C-344/98) [2000] ECR I-11369 . . . 483 Mathews v Eldridge 424 US 319 (1976) . . . 351 Mattila v Commission (C-353/01 P) [2004] ECR I-1073 . . . 394, 656 Maurin (C-144/95) [1996] ECR I-2909 . . . 486 Maurissen v Commission (193–4/87) [1989] ECR 1045 . . . 65 Maurissen v Court of Auditors (T-23/91) [1992] ECR II-2377 . . . 468 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS (C-429/05) [2007] ECR I-8017 . . . 772 max.mobil Telekommunikation Service GmbH v Commission (T-54/99) [2002] ECR II-313 . . . 367, 393 Maxcom Ltd v City Cycle Industries (C-248, 254 and 260/15 P) EU:C:2017:6 . . . 463 Maximillian Schrems v Data Protection Commissioner (C-362/14) EU:C:2015: 650 . . . 514, 657, 658 McCarthy v Home Secretary (C-434/09) EU:C:2011:277 . . . 572 MCI, Inc v Commission (T-310/00) [2004] ECR II-3253 . . . 619 Mediavilla v Commission (C-443/07) [2008] ECR I-10945 . . . 620 Medici Grimm KG v Council (T-7/99) [2000] ECR II-2671 . . . 602, 753 Medici Grimm KG v Council (T-364/03) [2006] ECR II-79 . . . 742 MedioCurso-Etabelecimento de Ensino Particular Ld v Commission (C-462/98 P) [2000] ECR I-7183 . . . 312, 350 Meganck v Commission (36/72) [1973] ECR 527 . . . 753 Mehibas Dordtselaan BV v Commission ECR (T-290/97) [2000] ECR II-15 . . . 314, 361, 619 Meiko-Konservenfabrik v Federal Republic of Germany (224/82) [1983] ECR 2539 . . . 603 Melkunie (97/83) [1984] ECR 2367 . . . 684 Melli Bank plc v Council (T-246 & 332/08) [2009] ECR II-2629 . . . 400 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA (C-179/90) [1991] ECR I-5889 . . . 582 Merck & Co Inc, NV Organon and Glaxo Wellcome plc v Commission (T-60/96) [1997] ECR II-849 . . . 318 Merkur GmbH & Co KG v Commission (43/72) [1973] ECR 1055 . . . 580, 740 Meroni v High Authority (9/56) [1958] ECR 133 . . . 67, 168, 169, 171–4, 192–5, 273, 274

Metallgesellschaft Ltd and Hoechst AG and Hoechst (UK) Ltd v Commissioners of Inland Revenue and HM Attorney General (C-397 & 410/98) [2001] ECR I-1727 . . . 776, 777, 782, 792 Metro-SB-Großmärkte GmbH & Co KG v Commission (26/76) [1977] ECR 1875 . . . 318 Metropole Television SA v Commission (T-206/99) [2001] ECR II-1057 . . . 364, 370 Meyer v Commission (T-72/99) [2000] ECR II-2521 . . . 619 M G and N R v Staatssecretaris van Veiligheid en Justitie (C-383/13 PPU) EU:C:2013:533 . . . 350, 361 Michaud v France (App no 12323/11), judgment, 6 December 2012 . . . 497 Michel S v Fonds National de Reclassement Handicapés (76/72) [1973] ECR 457 . . . 552 Microban International Ltd and Microban (Europe) Ltd v Commission (T-262/10) 25 October 2011 . . . 317 Microsoft Corp v Commission (T-201/04) [2007] ECR II-3601 . . . 460, 724 Miethke v European Parliament (C-25/92 R) [1993] ECR I-473 . . . 267 Milac GmbH v Hauptzollamt Freiburg (8/78) [1978] ECR 1721 . . . 545 Ministère Public v Even and ONPTS (207/78) [1979] ECR 2019 . . . 553 Ministère Public v Muller (304/84) [1986] ECR 1511 . . . 671 Ministère Public against Xavier Mirepoix (54/85) [1986] ECR 1067 . . . 696 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA (C-119/05) [2007] ECR I-6199 . . . 725 Ministero della Salute v Codacons (C-132/03) [2005] ECR I-4167 . . . 710 Ministero delle Finanze v Spac (C-260/96) [1998] ECR I-4997 . . . 774 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) (C-271/01) [2004] ECR I-1029 . . . 106 Ministerul Administraţiei şi Internelor-Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa (C-33/07) [2008] ECR I-5157 . . . 673, 683 Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre (C-465/10) EU:C:2011:867 . . . 666 Mitsui & Co Deutschland GmbH v Hauptzollamt Düsseldorf (C-256/07) [2009] ECR I-1951 . . . 603 Moccia Irme v Commission (T-164/96 R) [1996] ECR II-2261 . . . 724

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Moccia Irme v Commission (C-89/97 P(R)) [1997] ECR I-2327 . . . 724 Molkerei Wagenfeld Karl Niemann GmbH & Co KG v Bezirksregierung Hannover (C-14/01) [2003] ECR I-2279 . . . 464 Monin Automobiles v France (C-386/92) [1993] ECR I-2049 . . . 286 Monin Automobiles-Maison du Deux-Roues (C-428/93) [1994] ECR I-1707 . . . 286 Mono Car Styling SA, in liquidation v Dervis Odemis (C-12/08) [2009] ECR I-6653 . . . 773 Monsanto and others (C-58–68/10) 8 September 2011 . . . 710 Monsanto Agricultura Italia SpA v Presidenza del Consiglio dei Ministri (C-236/01) [2003] ECR I-8105 . . . 515, 706, 710 Montan Gesellschaft Voss mbH Stahlhandel and others v Commission (T-163/02 R) [2002] ECR II-3219 . . . 723, 724 Morellato v Unita Sanitaria Locale (USL) n 11 di Pordenone (C-358/95) [1997] ECR I-1431 . . . 670 Motor Vehicle Manufacturers Assn v State Farm Mutual Automobile Insurance Co 463 US 29, 42–43 (1983) . . . 478 MSS v Belgium and Greece (App No 30696/09), judgment of the Grand Chamber, 21 January 2011 . . . 497 MTZ Polyfilms Ltd v Council (T-143/06) [2009] ECR II-4133 . . . 405 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis (C-166/13) EU:C:2014:2336 . . . 314, 373 Mulder v Minister van Landbouw en Visserij (120/86) [1988] ECR 2321 . . . 627, 628, 637 Mulder and Heinemann v Council and Commission (C-104/89 and 37/90) [1992] ECR I-3061 . . . 741, 748, 749 Mulligan and others v Minister for Agriculture and Food, Northern Ireland (C-313/99) [2002] ECR I-5719 . . . 670 Muñoz v Frumar (C-253/00) [2002] ECR I-7289 . . . 780 Musik Metronome GmbH v Music Point Hokamp GmbH (C-200/96) [1998] ECR I-1953 . . . 521, 659 Musique Diffusion Française v Commission (100–103/80) [1983] ECR 1825 . . . 353, 359 My Travel Group plc v Commission (T-212/03) [2008] ECR II-1967 . . . 742, 743 N V Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (26/62) [1963] ECR . . . 282

xxxiii

Nachi Europe Gmbh v Hauptzollamt Krefeld (C-239/99) [2001] ECR I-1197 . . . 733 Nachi Fujikoshi Corporation v Council (255/84) [1987] ECR 1861 . . . 650 Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 . . . 638 Nadine Paquay v Société d’architectes Hoet + Minne SPRL (C-460/06) [2007] ECR I-8511 . . . 763 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale (INPS) (C-276/07) [2008] ECR I-3635 . . . 547 Napoli v Ministero della Giustizia—Dipartimento dell’Amministrazione penitenziaria (C-595/12) EU:C:2014:128 . . . 676 Nashua Corporation v Commission and Council (C-133 & 150/87) [1990] ECR I-719 . . . 267 National Labour Relations Board v Hearst Publications, Inc 322 US 111 (1944) . . . 443 National Power plc and PowerGen plc v British Coal Corporation and Commission (C-151 & 157/97 P(I)) [1997] ECR I-3491 . . . 335 Netherlands and Leeuwarder Papierwarenfabriek v Commission (296 & 318/82) [1985] ECR 809 . . . 370 Netherlands v Commission (11/76) [1979] ECR 245 . . . 88 Netherlands v Commission (C-48 & 66/90) [1992] ECR I-565 . . . 352 Netherlands v Commission (C-278/98) [2001] ECR I-1501 . . . 89 Netherlands v Commission (C-452/00) [2005] ECR I-6645 . . . 468, 647 Netherlands v Commission (C-405/07 P) [2008] ECR I-8301 . . . 369, 456 Netherlands v Council (C-58/94) [1996] ECR I-2169 . . . 393, 630 Netherlands v Council (C-110/97) [2001] ECR I-8763 . . . 625 Netherlands v Council (C-301/97) [2001] ECR I-8853 . . . 468, 475 Netherlands v European Commission (T-261/13 and 86/14) EU:T:2015:671 . . . 146 Netherlands v Parliament and Council (C-377/98) [2001] ECR I-7079 . . . 405, 422, 432, 723 Netto Supermarkt GmbH & Co OHG v Finanzamt Malchin (C-271/06) [2008] ECR I-771 . . . 681 New Valmar BVBA v Global Pharmacies Partner Health Srl (C-15/15) EU:C:2016:464 . . . 671 Nickel Institute v Secretary of State for Work and Pensions (C-14/10) EU:C:2011:503 . . . 456 Nicoli v Eridania SpA (C-87/00) [2004] ECR I-9357 . . . 465

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxxiv

Table of Cases

Nikoloudi v Organismos Tilepikoinonion Ellados AE (C-196/02) [2005] ECR I-1789 . . . 680 Nimz v Freie und Hansestadt Hamburg (184/89) [1991] ECR 297 . . . 587, 679 NMB France SARL v Commission (T-162/94) [1996] ECR II-427 . . . 650 Noël v SCP Brouard Daude (C-333/09) [2009] ECR I-205 . . . 505 Nold v Commission (4/73) [1974] ECR 491 . . . 485 Nolle v Council (T-167/94) [1995] ECR II-2589 . . . 363, 756 Nolle v Hauptzollamt Bremen-Freihafen (C-16/90) [1991] ECR I-5163 . . . 362 Nóra Baczó and János István Vizsnyiczai v Raiffeisen Bank Zrt (C-567/13) EU:C:2015:88 . . . 770 Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food (C-127/95) [1998] ECR I-1531 . . . 785, 790, 792 Northern Ireland Fish Producers’ Association (NIFPO) and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland (C-4/96) [1998] ECR I-681 . . . 453, 646 NS v Secretary of State (C-411 and 493/10) EU:C:2011:86 . . . 539 Ntionik Anonymi Etaireia Emporias H/Y and others v Epitropi Kefalaiagoras (C-430/05) [2007] ECR I-5835 . . . 682 Nycomed Danmark ApS v Agence européenne des médicaments (EMEA) (T-52/09 R) [2009] ECR II-43 . . . 723 Océano Grupo Editorial v Rocio Murciano Quintero (C-240–244/98) [2000] ECR I-4491 . . . 772 Odigitria v Council and Commission (T-572/93) [1995] ECR II-2025 . . . 747 O’Dwyer v Council (T-466, 469, 473, 474 and 477/93) [1996] ECR II-2071 . . . 622, 740 Oelmühle Hamburg v Bundesanstalt für Landwirtschaft und Ernährung (C-298/96) [1998] ECR I-4767 . . . 779 Office national de l’Emploi v Ioannidis (C-258/04) [2005] ECR I-8275 . . . 549 Office national de l’Emploi v Joszef Deak (94/84) [1985] ECR 1873 . . . 553 Office national de l’emploi (ONEm) v M (C-284/15) EU:C:2016:220 . . . 522 Office national de l’emploi v Marie-Rose Melchior (C-647/13) EU:C:2014:2301 . . . 512 Officier van Justitie v Koniklijke Kassfabriek Eyssen BV (53/80) [1981] ECR 409 . . . 671 Officier van Justitie v Sandoz BV (174/82) [1983] ECR 2445 . . . 671, 684, 696

O’Flynn v Adjudication Officer (C-237/94) [1996] ECR I-2617 . . . 547, 553 Ogieriakhi v Minister for Justice and Equality (C-244/13) EU:C:2014:2068 . . . 785 Oleifici Italiani (T-54/96) EU:T:1998:204 . . . 5 Oleifici Mediterranei v EEC (26/81) [1982] ECR 3057 . . . 743 Olivieri v Commission and EMEA (T-326/99) [2003] ECR II-6053 . . . 705 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof (119 and 120/76) [1977] ECR 1269 . . . 665 Olympiaki Aeroporia Ypiresies AE v Commission (T-68/03) [2007] ECR II-2911 . . . 366 Omega Spielhallen- und AutomatenaufstellungsGmbH v Oberburgermeiste der Bundesstadt Bonn (C-36/02) [2004] ECR I-9609 . . . 522, 686 Omya AG v Commission (T-145/06) [2009] ECR II-145 . . . 460 Openbaar Ministerie v Van der Veldt (C-17/93) [1994] ECR I-3537 . . . 670 Ordre des barreaux francophones et germanophone v Conseil des ministres (C-305/05) [2007] ECR I-5305 . . . 520 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers (C-543/14) EU:C:2016:605 . . . 530 Orfanopoulos v Land Baden-Wurttemberg (C-482 & 493/01) [2004] ECR I-5257 . . . 486, 673 Organisation des Modjahedines du peuple d’Iran v Council and UK (T-228/02) [2006] ECR II-4665 . . . 461, 729 Organización de Productores de Túnidos Congelados (OPTUC) v Commission (T-142 and 283/01) [2004] ECR II-329 . . . 622 Orleans v Vlaams Gewest (C-387–388/15) EU:C:2016:583 . . . 707 Österreichische Post AG v European Commission (T-463/14) EU:T:2016:24 . . . 370 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission (T-213–214/01) [2006] ECR II-1601, . . . 619 Österreichische Unilever GmbH v SmithKline Beecham Markenartikel GmbH (C-77/97) [1999] ECR I-431 . . . 681 Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara (C-539/11) EU:C:2013:591 . . . 687 P & O European Ferries (Vizcaya), SA and Diputacion Foral de Vizcaya v Commission (T-116 & 118/01) [2003] ECR II-2957 . . . 779 P v S and Cornwall County Council (C-13/94) [1996] ECR I-2143 . . . 583, 585, 593

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Panellinios Syndesmos Viomichanion Metapoiisis Kapnou v Ypourgos Oikonomias kai Oikonomikon (C-373/11) EU:C:2013:567 . . . 414 Palmisani v INPS (C-261/95) [1997] ECR I-4025 . . . 792 Paoletti v Procura della Repubblica (C-218/15) EU:C:2016:748 . . . 506 Papiers Peints de Belgique v Commission (73/74) [1975] ECR 1491 . . . 371 Pari Pharma GmbH v European Medicines Agency (T-235/15 R) EU:T:2015:587 . . . 723 Parti Ecologiste-‘Les Verts’ v European Parliament (294/83) [1986] ECR 1339 . . . 65, 175, 176 Pasquale Foglia v Mariella Novella (104/79) [1980] ECR 745 . . . 286 Pasquale Foglia v Mariella Novello (No 2) (244/80) [1981] ECR 3045 . . . 286 Pastoors and Trans-Cap GmbH v Belgian State (C-29/95) [1997] ECR I-285 . . . 680 Pauvert v Court of Auditors (228/84) [1985] ECR 1973 . . . 639 Payless v Peterborough CC [1990] 2 CMLR 577 . . . 691 Pedone v N (C-498/12) EU:C:2013:76 . . . 507 People’s Mojahedin Organization of Iran v Council (T-256/07) [2008] ECR II-3019 . . . 461 People’s Mojahedin Organization of Iran v Council (T-284/08) [2008] ECR II-3487 . . . 461 Pesce v Presidenza del Consiglio dei Ministri— Dipartimento della Protezione Civile (C-78–79/16) EU:C:2016:428 . . . 699 Pesqueria Vasco-Montanesa SA (Pevasa) and Compania Internacional de Pesca y Derivados SA (Inpesca) v Commission (C-199 and 200/94) [1995] ECR I-3709 . . . 737 Pesquerias de Bermeo SA and Naviera Laida SA v Commission (C-258 and 259/90) [1992] ECR I-2901 . . . 743 Pesticide Action Network Europe (PAN Europe) v European Commission (T-600/15) EU:T:2016:601 . . . 514 Peter Paul, Sonnen-Lutte and Christel Morkens v Bundesrepublik Deutschland (C-222/02) [2004] ECR I-9425 . . . 784 Peterbroeck, Van Campenhout & Cie v Belgian State (C-312/93) [1995] ECR I-4599 . . . 766, 771 Petrides Co Inc v Commission (C-64/98) [1999] ECR I-5187 . . . 744 Petrie v Commission (T-191/99) [2001] ECR II-3677 . . . 390, 815

xxxv

Petrotub and Republica SA v Council (T-33– 34/98) [1999] ECR II-3837 . . . 149, 313, 350, 525, 650 Petrotub SA and Republica SA v Council (C-76/00 P) [2003] ECR I-79 . . . 370 Pfizer Animal Health SA v Council (T-13/99) [2002] ECR II-3305 . . . 149, 193, 317, 334, 368, 383, 444, 452–6, 477, 481, 516, 648, 649, 654, 655, 659, 697, 699, 700, 702, 720, 724 Pflücke v Bundesanstalt für Arbeit (C-125/01) [2003] ECR I-9375 . . . 775 Phil Collins v Imtrat Handelsgesellschaft mbH (C-92/92) [1993] ECR I-5145 . . . 557, 561 Philip Morris Brands SARL v Secretary of State for Health (C-547/14) EU:C:2016:325 . . . 426, 659, 661 Philip Morris Holland BV v Commission (730/79) [1980] ECR 2671 . . . 440, 444, 449, 451 Philip Morris Ltd v European Commission (T-796/14) EU:T:2016:483 . . . 370, 396, 397 Photovost (C-470/12) EU:C:2013:844 . . . 516 Pietsch v Hauptzollamt Hamburg-Waltershof (C-296/94) [1996] ECR I-3409 . . . 665 Pilar Angé Serrano and Others v European Parliament (C-496/08 P) [2010] ECR I-1793 . . . 625 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health (C-477/14) EU:C:2016:324 . . . 425, 520, 645, 659, 661, 698, 699 Pinna v Caisse d’allocations familiales de Savoie (41/84) [1986] ECR 1 . . . 734, 735 PJSC Rosnef Oil Co v Her Majesty’s Treasury (C-72/15) EU:C:2017:236 . . . 462, 601, 645 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt (C-201/08) [2009] ECR I-8343 . . . 601, 605 Plattform ‘Arzte fur das Leben’ v Austria (1991) 13 EHRR 204 . . . 513 Plaumann & Co v Commission (25/62) [1963] ECR 95 . . . 333, 347, 737 Poland v European Commission (T­290/12) EU:T:2015:221 . . . 622 Poland v European Parliament and Council (C-358/14) EU:C:2016:323 . . . 426, 432, 434 Pollmeier Malchow GmbH & Co KG v Commission (T-137/02) [2004] ECR II-3541 . . . 439, 632 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (C-410/09) 12 May 2011 . . . 602 Pontillo v Donatab (C-372/96) [1998] ECR I-5091 . . . 625 Pool v Council (49/79) [1980] ECR 569 . . . 580

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxxvi

Table of Cases

Portmeirion Group UK Ltd v Commissioners for Her Majesty’s Revenue & Customs (C-232/14) EU:C:2016:180 . . . 463 Portugal v Commission (C-150/95) [1997] ECR I-5863 . . . 581 Portugal v Commission (C-1159/96) [1998] ECR I-7379 . . . 729 Portugal v Commission (C-365/99) [2001] ECR I-5645 . . . 665 Portugal v Commission (C-246/11 P) EU:C:2013:118 . . . 728 Portugal v Council (C-149/96) [1999] ECR I-8395 . . . 739 Portuguese Republic v Commission (C-240/92) [2004] ECR I-10717 . . . 267 Portuguese Republic v Commission (C-89/96) [1999] ECR I-8377 . . . 728 Portuguese Republic v Commission (C-159/96) [1998] ECR I-7379 . . . 267 Preston v Wolverhampton Healthcare NHS Trust (C-78/98) [2000] ECR I-3201 . . . 767, 775, 776 Primex Produkte Import-Export GmbH & Co KG v Commission (T-50/96) [1998] ECR II-3773 . . . 312, 314, 350, 353, 356 Pringle v Government of Ireland, Ireland and the Attorney General (C-370/12) EU:C:2012:756 . . . 411 Proceedings brought by Robert Pfleger (C-390/12) EU:C:2014:281 . . . 506 Procureur de la République Besançon v Bouhelier (53/76) [1977] ECR 197 . . . 548 Productores de Música de España (Promusicae) v Telefónica de España SAU (C-275/06) [2008] ECR I-271 . . . 465, 486 Professional Air Traffic Controllers Organisation (PATCO) v Federal Labor Relations Authority 685 F.2d 547 (1982) . . . 361 Public Service Alliance of Canada v Attorney General of Canada [1991] 1 SCR 614 . . . 443 Qualcomm Wireless Business Solutions Europe BV v Commission (T-48/04) [2009] ECR II-2029 . . . 460 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland (C-282/15) EU:C:2017:26 . . . 671, 699 R and V Haegeman Sprl v Commission (96/71) [1972] ECR 1005 . . . 755 R (on the application of ABNA Ltd and Others) v Secretary of State for Health and Food Standards Agency (C-453/03, 11, 12 and 194/04) [2005] ECR I-10423 . . . 654, 726, 727

R (on the application of Alliance for Natural Health and Nutri-link Ltd) v Secretary of State for Health (C-154–155/04) [2005] ECR I-6451 . . . 169, 400, 432, 709 R (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education (C-209/03) [2005] ECR I-2119 . . . 565, 570, 571 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport (C-344/04) [2006] ECR I-403 . . . 645, 650, 725 R (on the application of Intertanko) v Secretary of State for Transport (C-308/06) [2008] ECR I-4057 . . . 601 R (on the application of Omega Air Ltd) v Secretary of State for the Environment, Transport and the Regions (C-27/00) [2002] ECR I-2569 . . . 650 R (on the application of SPCM SA) v Secretary of State for the Environment, Food and Rural Affairs (C-558/07) [2009] ECR I-5783 . . . 645 R (on the application of Teleos plc and Others) v Commissioners of Customs & Excise (C-409/04) [2007] ECR I-7797 . . . 681 R (on the application of Thames Water Utilities Ltd) v South East London Division, Bromley Magistrates’ Court (C-252/05) [2007] ECR I-3883 . . . 707 R (on the application of Unitymark Ltd and North Sea Fishermen’s Organisation) v Department for Environment, Food and Rural Affairs(C-535/03) [2006] ECR I-2689 . . . 647 R (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) 8 June 2010 . . . 426, 432, 434, 645 R v Henn and Darby (34/79) [1979] ECR 3795 . . . 685 R v HM Treasury, ex p British Telecommunications plc (C-392/93) [1996] ECR I-1631 . . . 690, 786, 789 R v Immigration Appeal Tribunal, ex p Antonissen (C-292/89) [1991] ECR I-745 . . . 549, 550 R v Intervention Board, ex p ED & F Man (Sugar) Ltd (181/84) [1985] ECR 2889 . . . 665 R v Kent Kirk (63/83) [1984] ECR 2689 . . . 603 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa (C-331/88) [1990] ECR 4023 . . . 604, 645, 654, 665 R v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex p

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases National Farmers’ Union (C-157/96) [1998] ECR I-2211 . . . 696 R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 . . . 606 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd (C-5/94) [1996] ECR I-2553 . . . 785, 790 R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 . . . 491 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (C-491/01) [2002] ECR I-11453 . . . 405, 432, 520, 645, 652, 660 R v Secretary of State for Health, ex p Richardson (C-137/94) [1995] ECR I-3407 . . . 762 R v Secretary of State for Health, ex p Swedish Match (C-210/03) [2004] ECR I-11893 . . . 405, 645 R v Secretary of State for Social Security, ex p Eunice Sutton (C-66/95) [1997] ECR I-2163 . . . 766, 777 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley (C-293/97) [1999] ECR I-2603 . . . 521, 659 R v Secretary of State for the Environment, Transport and the Regions, ex p Omega Air Ltd (C-27 & 122/00) [2002] ECR I-2569 . . . 464 R v Secretary of State for the Home Department, ex p Kondova (C-235/99) [2001] ECR I-6427 . . . 485 R v Secretary of State for Transport, ex p Factortame Ltd (C-213/89) [1990] ECR I-2433 . . . 725, 760 R v Secretary of State for Transport, ex p Factortame Ltd (C-221/89) [1991] ECR I-3905 . . . 787 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603 . . . 491 R, ex p Centro-Com v HM Treasury and Bank of England (C-124/95) [1997] ECR I-81 . . . 671 R, ex parte Synthon BV v Licensing Authority of the Department of Health (C-452/06) [2008] ECR I-7681 . . . 790 R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 . . . 503 Radlinger and Radlingerová v Finway as (C-377/14) EU:C:2012:83 . . . 770, 772 Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS) (C-69/08) [2009] ECR I-6741 . . . 773

xxxvii

Raffinerie Mediterranee (ERG) SpA and others v Ministero dello Sviluppo economic (C-379 & 380/08) EU:C:2010:127 . . . 394, 659 Ragusa v Commission (282/81) [1983] ECR 1245 . . . 631 Rainer Typke v European Commission (T-214/13) EU:T:2015:448 . . . 395 Ramondin SA and others v Commission (C-186 & 188/02 P) [2004] ECR I-10653 . . . 468 Randa Chart v European External Action Service (T-138/14) EU:T:2015:981 . . . 373 Raulin v Minister van Onderwijs en Wetenschappen (C-357/89) [1992] ECR I-1027 . . . 549 Razzouk and Beydoun v Commission (75 & 117/82) [1984] ECR 1509 . . . 583, 585 Rechberger v Austria (C-140/97) [1999] ECR I-3499 . . . 789 Recheio-Cash and Carry SA v Fazenda Publica/ Registo Nacional de Pessoas Colectivas and Ministerio Publico (C-30/02) [2004] ECR I-6051 . . . 774 Rechsnungshof v Österreichischer Rundfunk and others (C-465/00, 138 & 139/01) [2003] ECR I-4989 . . . 485 Regione Autonoma della Sardegna v Commission (T-171/02) [2005] ECR II-2123 . . . 624 Regione autonoma della Sardegna v European Commission (T-219/14) EU:T:2017:266 . . . 466 Regione Autonoma Friuli-Venezia Giulia v Commission (T-288/97) [2001] ECR II-1169 . . . 466, 666 Reina v Landeskreditbank Baden-Württemberg (65/81) [1982] ECR 33 . . . 553 Reisdorf v Finanzamt Köln-West (C-85/95) [1996] ECR I-6257 . . . 287 Reiseburo Broede v Gerd Sandker (C-3/95) [1996] ECR I-6511 . . . 686 Remia BV and Nutricia BV v Commission (42/84) [1985] ECR 2545 . . . 381, 450 Renckens v Commission (27/68 R) [1969] ECR 274 . . . 723 Rendón Marín v Administración del Estado (C-165/14) EU:C:2016:675 . . . 573 RENV II Ireland and Aughinish Alumina Ltd v European Commission (T­50 and 69/06) EU:T:2016:22 . . . 619 Republik Österreich v Martin Huber (C-336/00) [2002] ECR I-7699 . . . 779 Reti Televisive Italiane SpA (RTI) v Ministero delle Poste e Telecommunicazione (C-320, 328, 329, 337, 338 & 339/94) [1996] ECR I-6471 . . . 286

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xxxviii

Table of Cases

Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (158/80) [1981] ECR 1805 . . . 759 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (120/78) [1979] ECR 649 . . . 671 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (33/76) [1976] ECR 1989 . . . 759 Rewe-Zentralfinanz v Landwirtschaftskammer (4/75) [1975] ECR 843 . . . 548 Rey Soda v Cassa Conguaglio Zucchero (23/75) [1975] ECR 1279 . . . 116 RFU v Consolidated Information Services [2012] UKSC 55 . . . 503 Rica Foods (Free Zone) NV and Free Trade Foods NV v Commission (T-332 & 350/00) [2002] ECR II-4755 . . . 468 Rica Foods (Free Zone) NV v Commission (C-41/03 P) [2005] ECR I-6875 . . . 475, 647 Ricosmos BV v Commission (T-53/02) [2005] ECR II-3173 . . . 356 Rinke v Arztekammer Hamburg (C-25/02) [2003] ECR I-8349 . . . 485, 583 Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH (171/88) [1989] ECR 2743 . . . 587, 679 Ritter-Coulais v Finanzamt Gemersheim (C-152/03) [2006] ECR I-1711 . . . 286 Robins and Others v Secretary of State for Work and Pensions (C-278/05) [2007] ECR I-1053 . . . 790 Roby Profumi Srl v Comune di Parma (C-257/06) [2008] ECR I-189 . . . 681 Roca Álvarez (C-104/09) EU:C:2010:561 . . . 593 Roman Angonese v Cassa di Riparmio di Bolzano SpA (C-281/98) [2000] ECR I-4139 . . . 558 Romano v Institut national d’assurance maladieinvalidité (98/80) EU:C:1981:104 . . . 169–71 Roquette Frères SA v Directeur général de la concurrence and Commission (C-94/00) [2002] ECR I-9011 . . . 495 Roquette Frères SA v Direction des Services Fiscaux du Pas-de-Calais (C-88/99) [2000] ECR I-10465 . . . 768, 774 Roquette Frères SA v Hauptzollamt Geldern (C-228/92) [1994] ECR I-1445 . . . 729, 734 Roquette Frères v Commission (26/74) [1976] ECR 677 . . . 748, 754, 764 Roquette Freres v Commission (20/88) [1989] ECR 1553 . . . 756 Roquette Freres v Council (138/79) [1980] ECR 3333 . . . 453 Rosalba Alassini v Telecom Italia SpA (C-317–320/08) [2010] ECR I-2213 . . . 773 Rosengren v Riksåklagaren (C-170/04) [2007] ECR I-4071 . . . 671

Rothmans v Commission (T-188/97) [1999] ECR II-2463 . . . 120, 394 Royal Copenhagen, Specialarbejderforbundet i Danmark v Dansk Industri (C-400/93) [1995] ECR I-1275 . . . 585 Royal Scandinavian Casino Århus I/S v European Commission (C-541/14 P) EU:C:2016:302 . . . 344 Royal Scholten-Honig v Intervention Board for Agricultural Produce (103 & 145/77) [1978] ECR 2037 . . . 578 Ruckdeschel v Hauptzollamt Hambourg-St Annen (117/76 and 16/77) [1977] ECR 1753 . . . 270, 545 Rudy Grzelczyk v Centre Public D’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) (C-184/99) [2001] ECR I-6193 . . . 550, 565, 568–70, 574 Ruiz Zambrano v ONEM (34/09) [2011] ECR I-1177 . . . 565 Rummler (237/85) [1986] ECR 2101 . . . 585 Rütgers Germany GmbH v European Chemicals Agency (ECHA) (T-96/10) EU:T:2013:109 . . . 267 Rutili v Ministre de l’Intérieur (36/75) [1975] ECR 1219 . . . 673 RV Union Française de l’Express (Ufex), DHL International, Service CRIE and May Courier v Commission (T-77/95) [2000] ECR II-2167 . . . 364 Ryanair Holdings plc v Commission (T-342/07) EU:T:2010:280 . . . 460 SA Biovilac NV v EEC (59/83) [1984] ECR 4057 . . . 441, 747, 752 SA Cimenteries CBR (T-10–12, 15/92) [1992] ECR II-2667 . . . 267 SA Hercules Chemicals NV v Commission (T-7/89) [1991] ECR II-1711 . . . 355, 361, 483, 619 SA Roquette Frères v France (145/79) [1980] ECR 2917 . . . 734 Sabou v Finanční ředitelství pro hlavní město Prahu (C-276/12) EU:C:2013:678 . . . 312, 350 Safa Nicu Sepahan Co v Council (C-45/15 P) EU:C:2017:402 . . . 748 Safalero Srl v Prefetto di Genova (C-13/01) [2003] ECR I-8679 . . . 780 Sagulo, Brenca, and Bakhouche (8/77) [1977] ECR 1495 . . . 761 Saint v Council (T-554/93) [1997] ECR II-563 . . . 267 Saint Louis Sucre v Directeur général des douanes et droits indirects (C-96/15) EU:C:2016:450 . . . 465

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Salgoil v Italian Ministry for Foreign Trade (13/68) [1973] ECR 453 . . . 759 Salumi v Amministrazione delle Finanze (66, 127 and 128/79) [1980] ECR 1237 . . . 762 Salzgitter AG v Commission (T-308/00) [2004] ECR II-1933 . . . 465 Salzgitter Mannesmann GmbH v Commission (C-411/04 P) [2007] ECR I-959 . . . 375 Santex SpA v Unita Socio Sanitaria Locale n.42 di Pavia, Sca Molnlycke SpA, Artsana SpA and Fater SpA (C-327/00) [2003] ECR I-1877 . . . 769, 771 Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira (C­26/16) EU:C:2017:453 . . . 610 Sayag v Leduc (5/68) [1968] ECR 395 . . . 751 Sayag v Leduc (9/69) [1969] ECR 329 . . . 750 SCAC v Associazione dei Produttori Ortofrutticoli (C-56/94) [1995] ECR I-1769 . . . 581 Scan Office Design SA v Commission (T-40/01) [2002] ECR II-5043 . . . 747 Schenker AG v European Commission (T-534/11) EU:T:2014:854 . . . 394 Schmidberger Internationale Transporte und Planzuge v Austria (C-112/00) [2003] ECR I-5659 . . . 517, 518, 521, 662, 663, 684, 685 Schneider Electric SA v Commission (T-310/01) [2002] ECR II-4071 . . . 733 Schneider Electric SA v Commission (T-351/03) [2007] ECR II-2237 . . . 360 Schnitzer (C-215/01) [2003] ECR I-14847 . . . 674 Scholz v Universitaria di Cagliari (C-419/92) [1994] ECR I-505 . . . 547 Schräder HS Kraft futter GmbH & Co KG v Hauptzollamt Gronau (265/87) [1989] ECR 2237 . . . 521, 645, 659 Schulte v Council and Commission (T-261/94) [2002] ECR II-441 . . . 736, 747 Schwarz v Bürgermeister der Landeshauptstadt Salzburg (C-366/04) [2005] ECR I-10139 . . . 671 SCK and FNK v Commission (C-268/96 R) [1996] ECR I-4971 . . . 723 Secretary of State for the Home Department v CS (C-304/14) EU:C:2016:674 . . . 573 Seymour-Smith and Perez (C-167/97) [1999] ECR I-623 . . . 587 Sgaravatti Mediterranea Srl v Commission (T-199/99) [2002] ECR II-3731 . . . 106, 467, 624, 666 Sgarlata and others v Commission (40/64) [1965] ECR 215 . . . 485 SGEEM and Etroy v EIB (C-370/89) [1992] ECR I-6211 . . . 736

xxxix

Shandong Reipu Biochemicals Co Ltd v Council (T-413/03) [2006] ECR II-2243 . . . 369 Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Co Ltd v Council (T-299/05) [2009] ECR II-573 . . . 463 SIC-Sociedade Independente de Comunicação SA v Commission (T-297–298/01) [2004] ECR II-743 . . . 732 Sideradria SpA v Commission (67/84) [1985] ECR 3983 . . . 624 Siemens v Commission (T-459/93) [1995] ECR II-1675 . . . 364 Siemens AG Österreich and others v Commission (T-122–124/07) [2011] ECR II-793 . . . 358, 636 Silos e Mangimi Martini SpA v Ministero delle Finanze (C-228/99) [2001] ECR I-8401 . . . 735 Simon v High Authority (15/60) [1961] ECR 115 . . . 618 Siragusa v Regione Sicilia—Soprintendenza Beni Culturali e Ambientali di Palermo (C-206/13) EU:C:2014:126 . . . 507 Sirdar v Army Board (C-273/97) [1999] ECR I-7403 . . . 589, 676 Skoma-Lux sro v Celní ředitelství Olomouc (C-161/06) [2007] ECR I-10841 . . . 602, 603 Skov Æg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen (C-402/03) [2006] ECR I-199 . . . 762 Slovak Republic and Hungary v Council of the European Union (C-643 and 647/15) EU:C:2017:63 . . . 463 Smanor v Commission (T-182/97) [1998] ECR II-271 . . . 815 SNF SA v Commission (T-213/02) [2004] ECR II-3047 . . . 338 SNUPAT v High Authority (42 and 49/59) [1961] ECR 53 . . . 608, 610, 614 Sociedade Agrícola e Imobiliária da Quinta de S Paio Lda v Instituto da Segurança Social IP (C-258/13) EU:C:2013:810 . . . 506, 507 Société Arcelor Atlantique et Lorraine and Others v Premier ministre and others (C-127/07) [2008] ECR I-9895 . . . 577 Société Bautiaa v Directeur des Services Fiscaux des Landes (C-197 & 252/94) [1996] ECR I-505 . . . 762 Société Coopérative ‘Providence Agricole de la Champagne’ v Office National Interprofessionnel des Céréales (ONIC) (4/79) [1980] ECR 2823 . . . 734, 735 Société de Produits de Maïs v Administration des Douanes (112/83) [1985] ECR 719 . . . 734

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xl

Table of Cases

Société des Grands Moulins des Antilles v Commission (99/74) [1975] ECR 1531 . . . 756 Société des plantations de Mbanga SA (SPM) v Commission (T-447/05) [2007] ECR II-1 . . . 732 Société Française de Transports Gondrand Frères SA v Commission (T-104/02) [2004] ECR II-3211 . . . 731 Société internationale de diffusion et d’édition SA (SIDE) v Commission (T-348/04) [2008] ECR II-625 . . . 623 Societé La Technique Minière (LTM) v Maschinenbau Ulm GmbH (56/65) [1966] ECR 235 . . . 362 Société nationale interprofessionelle de la tomate (Sonito) v Commission (87/89) [1990] ECR I-198 . . . 815 Société Neptune Distribution v Ministre de l’Économie et des Finances (C-157/14) EU:C:2015:823 . . . 645, 699 Société pour l’Exportation des Sucres SA v Commission (132/77) [1978] ECR 1061 . . . 747 Sociétés des Fonderies de Pont-á-Mousson v High Authority (14/59) [1959] ECR 215 . . . 576 Sofiane Fahas v Council (T-49/07) 7 December 2010 . . . 468 Sofrimport Sàrl v Commission (C-152/88) [1990] ECR I-2477 . . . 628, 629 Sogelma-Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) (T-411/06) [2008] ECR II-2771 . . . 65, 175 Solgar Vitamin’s France v Ministre de l’Économie, des Finances et de l’Emploi (C-446/08) [2010] ECR I-3973 . . . 709 Solvay Pharmaceuticals BV v Council (T-392/02) [2003] ECR II-4555 . . . 698, 699, 720 Solvay SA v Commission (T-30–32/91) [1995] ECR II-1775 . . . 355, 361 Solvay SA v Commission (T-58/01) [2009] ECR II-4781 . . . 356 Solvay SA v Commission (T-186/06) EU:T:2011:276 . . . 356 Somalfruit SpA and Camar SpA v Ministero delle Finanze and Ministero del Commercio con l’Estero (C-369/95) [1997] ECR I-6619 . . . 465 Sonasa-Sociedade de Seguranca Ld v Commission (T-126/97) [1999] ECR II-2793 . . . 611, 624 Sophie in ’t Veld v European Commission (T-301/10) EU:T:2013:135 . . . 394 Sopropé-Organizações de Calçado Lda v Fazenda Pública (C-349/07) [2008] ECR I-10369 . . . 312, 350, 353

Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu (C-25/07) [2008] ECR I-5129 . . . 681 Sotgiu v Deutsche Bundespost (152/73) [1974] ECR 153 . . . 547, 553 SpA Alois Lageder v Amministrazione delle Finanze dello Stato (C-31–41/91) [1993] ECR I-1761 . . . 605, 640 SpA Ferriere San Carlo v Commission (344/85) [1987] ECR 4435 . . . 632 SpA Fragd v Amminstrazione delle Finanze, Decision 232, 21 April 1989 (1989) 72 RD . . . 531 SpA Granital v Amminsitazione delle Finanze, Decision 170, 8 June 1984 . . . 531 Spagl v Hauptzollamt Rosenheim (C-189/89) [1990] ECR I-4539 . . . 629, 637, 638 Spain v Commission (169/95) [1997] ECR I-135 . . . 666 Spain v Commission (C-415/96) [1998] ECR I-6993 . . . 729 Spain v Commission (C-351/98) [2002] ECR I-8031 . . . 633 Spain v Commission (C-113/00) [2002] ECR I-7601 . . . 466 Spain v Commission (C-304/01) [2004] ECR I-7655 . . . 464 Spain v Commission (C-310/04) [2006] ECR I-7285 . . . 625, 648 Spain v Commission (T-402/06) EU:T:2013:445 . . . 392 Spain v Commission (T-461/13) EU:T:2015:89 . . . 433 Spain v Council (C-350/92) [1995] ECR I-1985 . . . 422 Spain v Council (C-342/03) [2005] ECR I-1975 . . . 622 Spain v Council (C-147/13) EU:C:2015:299 . . . 169 Spain v Council of the European Union (C-128/15) EU:C:2017:3 . . . 463 Spain v Eurojust (C-160/03) [2005] ECR I-2077 . . . 176 Spain v European Commission (T-204/11) EU:T:2015:91 . . . 456 Spain v European Commission (T-260/11) EU:T:2014:555 . . . 313, 350 Spain v European Parliament and the Council (C-146/13) EU:C:2015:298 . . . 169 Spain v Lenzing (C-525/04 P) [2007] ECR I-9947 . . . 456, 465 Spain and Finland v European Parliament and Council (C-184 and 223/02) [2004] ECR I-7789 . . . 520, 661

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Spain and Italy v Council (C-247 and 295/11) EU:C:2013:240 . . . 406 Specht v Land Berlin and Bundesrepublik Deutschland (C-501–506 and 540–541/12) EU:C:2014:2005 . . . 787 Spitta & Co v Hauptzollamt Frankfurt/Main-Ost (127/78) [1979] ECR 171 . . . 622 Sporting Exchange Ltd v Minister van Justitie (C-203/08) 3 June 2010 . . . 392 SPUC v Grogan (C-159/90) [1991] ECR I-4685 . . . 521 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (283/81) [1982] ECR 3415 . . . 281, 282 Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV (C-153/10) EU:C:2011:224 . . . 640 Stadtsportverband Neuss eV v Commission (T-137/01) [2003] ECR II-3103 . . . 611 Stahlwerke Peine-Salzgitter AG v Commission (C-220/91 P) [1993] ECR I-2393 . . . 741 Star Fruit v Commission (247/87) [1989] ECR I-291 . . . 815 Statul român v Tamara Văraru (C-496/14) EU:C:2015:312 . . . 507 Steadman v SEC 450 US 91 (1981) . . . 470, 471 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (C-338/91) [1993] ECR I-5475 . . . 767 Stefano Melloni v Ministerio Fiscal (C-399/11) EU:C:2013:107 . . . 532–4 Steymann v Staatssecretaris van Justitie (196/87) [1988] ECR 6159 . . . 438, 549 Stichting Al-Aqsa v Council (T-348/07) [2010] ECR II-45759 . . . 732 Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën (C-376/02) [2005] ECR I-3445 . . . 602 Stichting Greenpeace Council (Greenpeace International) v Commission (T-583/93) [1995] ECR II-2205 . . . 318 Stichting Greenpeace Nederland and PAN Europe v European Commission (T-545/11) EU:T:2013:523 . . . 397 Stichting ROM-projecten v Staatssecretaris van Economische Zaken (C-158/06) [2007] ECR I-5103 . . . 601, 779 Stichting Sigarettenindustrie v Commission (240–242, 261–262, 268–269/82) [1985] ECR 3831 . . . 381 Stichting Woonlinie and Others v European Commission (C-414/15 P) EU:C:2017: 215 . . . 466 Stichting Woonpunt v European Commission (C-132/12 P) EU:C:2014:100 . . . 344

xli

Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuuren Voedselkwaliktiet (C-138/05) [2006] ECR I-8339 . . . 287 Stockholm Lindöpark Aktiebolag v Sweden (C-150/99) [2001] ECR I-493 . . . 790 Stoke City Council v B & Q plc [1990] 3 CMLR 31 . . . 691 Stoke-on-Trent CC v B & Q plc (C-306/88, 304/90 and 169/91) [1992] ECR I-6457 . . . 692 Stölting v Hauptzollamt Hamburg-Jonas (138/78) [1979] ECR 713 . . . 645 Stork v High Authority (1/58) [1959] ECR 17 . . . 485 Strack v Commission (C-127/13 P) EU:C:2014:2250 . . . 394, 656 Sucrimex SA and Westzucker GmbH v Commission (133/79) [1980] ECR 1299 . . . 756 Südzucker Mannheim/Ochsenfurt AG v Hauptzollamt Mannheim (C-161/96) [1998] ECR I-281 . . . 665 Sumitomo Chemical (UK) plc v Commission (T-78/04) [2004] ECR II-2049 . . . 723, 724 Sumitomo Metal Industries Ltd v Commission (C-403 & 405/04 P) [2007] ECR I-729 . . . 376 Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH v Commission (T-282/06) [2007] ECR II-2149 . . . 460 Sungro SA v Council and Commission (T-252, 271–272/07) [2010] ECR II-55 . . . 746 Surgicare—Unidades de Saúde SA v Fazenda Pública (C-662/13) EU:C:2015:89 . . . 770 Susanne Bulicke v Deutsche Büro Service GmbH (C-246/09) [2010] ECR I-7003 . . . 775 Svenska Journalistforbundet v Council (T-174/95) [1998] ECR II-2289 . . . 394 Sviluppo Italia Basilicata SpA v European Commission (C-414/08 P) 25 March 2010 . . . 619 Sweden v API and Commission (C-514, 528, 532/07) [2010] ECR I-8533 . . . 397 Sweden v Commission (C-64/05 P) [2007] ECR II-11389 . . . 331, 397, 433, 656 Sweden v Commission and My Travel Group plc (C-506/08 P) 21 July 2011 . . . 396, 397 Sweden v European Commission (C-562/14 P) EU:C:2017:356 . . . 396 Sweden and Turco v Council (C-39 & 52/05 P) [2008] ECR I-4723 . . . 397, 398 Syndicat Français de l’Express International (SFEI) v Commission (C-39/93 P) [1994] ECR I-2681 . . . 267 Syndicat Français de l’Express International (SFEI) v La Poste (C-39/94) [1996] ECR I-3547 . . . 441

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xlii

Table of Cases

Systran SA and Systran Luxembourg SA v European Commission (T-19/07) EU:T:2010:526 . . . 373 Sytraval and Brink’s France v Commission (T-95/94) [1995] ECR II-2651 . . . 365, 366, 381, 382 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission (T-279/11) EU:T:2013:299 . . . 338–9 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission (C-456/13 P) EU:C:2015:284 . . . 345–7 T Port & Co KG v Commission (T-52/99) [2001] ECR II-981 . . . 468 T Port GmbH & Co KG v Bundesanstalt für Landwirtschaft und Ernahrung (C-68/95) [1996] ECR I-6065 . . . 510 T Port GmbH & Co KG v Commission (T-1/99) [2001] ECR II-465 . . . 749 T V/2 Danmark A/S and Others v Commission (T-309, 317, 329, 336/04) [2008] ECR II-2935 . . . 365, 369 Tarakhel v Switzerland, judgment of the Grand Chamber (App No 29217/12), 4 November 2014 . . . 497 Technion—Israel Institute of Technology v European Commission (T-480/11) EU:T:2015:272 . . . 396 Technische Glaswerke Ilmenau GmbH v Commission (T-198/01) [2004] ECR II-2717 . . . 366, 368, 381, 467, 723 Technische Glaswerke Ilmenau GmbH v Commission (C-404/04 P) [2007] ECR I-1 . . . 366 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson (C-203 and 698/15) EU:C:2016:970 . . . 520, 528 Tele2 Telecommunication GmbH v TelekomControl-Kommission (C-426/05) [2008] ECR I-685 . . . 771 Telefónica SA v Commission (C-274/12 P) EU:C:2013:852 . . . 344–6 Telefónica SA and Telefónica de España SAU v European Commission (C-295/12 P) EU:C:2014:2062 . . . 460, 495 Telemarsicabruzzo SpA v Circostel, Ministero delle Poste e Telecommunicazioni and Ministerio della Difesa (C-320–322/90) [1993] ECR I-393 . . . 286 Territorio Histórico de Álava-Diputación Foral de Álava v Commission (T-127, 129 & 148/99) [2002] ECR II-1275 . . . 442 Territorio Histórico de Álava-Diputación Foral de Álava and Comunidad autónoma del País

Vasco-Gobierno Vasco and Others v Commission (T-227–229, 265, 266 & 270/01) [2009] ECR II-3029 . . . 365, 468 Test Claimants in the CFC and Dividend Group Litigation (C-201/05) [2008] ECR I-2875 . . . 778 Test Claimants in the FII Group Litigation (C-446/04) [2006] ECR I-11753 . . . 777, 790 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue (C-35/11) EU:C:2012:707 . . . 777 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue (C­362/12) EU:C:2013: 834 . . . 600 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue (C-524/04) [2007] ECR I-2107 . . . 777, 786 Tetra Laval BV v Commission (T-5/02) [2002] ECR II-4381 . . . 355, 457, 458, 470, 472 Texaco A/S v Havn (C-114–115/95) [1997] ECR I-4263 . . . 768 Thessalonikis v Commission (T-196/01) [2003] ECR II-3987 . . . 106, 732 Thyssen AG v Commission (188/82) [1983] ECR 3721 . . . 639 ThyssenKrupp Acciai Speciali Terni SpA v Commission (T-62/08) EU:T:2010:268 . . . 366 ThyssenKrupp Gmbh and another v Commission (C-65 and 73/02 P) [2005] ECR I-6773 . . . 624 Tideland Signal Ltd v Commission (T-211/02) [2002] ECR II-3781 . . . 367, 373, 667, 732, 733 Tilly-Sabco v European Commission (T-397/13) EU:T:2016:8 . . . 345, 346 Timex Corporation v Council and Commission (264/82) [1985] ECR 849 . . . 731 TNT Traco SpA v Poste Italiane SpA (C-340/99) [2001] ECR I-4109 . . . 582 Toepfer v Commission (106 & 107/63) [1965] ECR 405 . . . 755 Tomana v Council of the European Union and European Commission (T-190/12) EU:T:2015:222 . . . 314 Tomana v Council of the European Union and European Commission (C-330/15 P) EU:C:2016:60 . . . 462 Tomášová v Slovenská republika (C-168/15) EU:C:2016:602 . . . 788 Tomra Systems ASA and Others v Commission (T-155/06) EU:T:2010:370 . . . 460 Torfaen BC v B & Q plc (145/88) [1989] ECR 3851 . . . 691, 693 Traghetti del Mediterraneo SpA v Repubblica italiana (C-173/03) [2006] ECR I-5177 . . . 788 Tralli v ECB (C-301/02 P) [2005] ECR I-4071 . . . 169

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Transocean Marine Paint v Commission (17/74) [1974] ECR 1063 . . . 312 Transportes Urbanos y Servicios Generales SAL v Administración del Estado (C-118/08) [2010] ECR I-635 . . . 792 Tremblay v Commission (T-5/93) [1995] ECR II-185 . . . 371 Trojani v Centre Public D’Aide Sociale de Bruxelles (CPAS) (C-456/02) [2004] ECR I-7573 . . . 549, 550, 565, 567 Trubowest Handel GmbH and Viktor Makarov v Council and Commission (C-419/08 P) 18 March 2010 . . . 747 Turco v Council (T-84/03) [2004] ECR II-4061 . . . 397, 398 TWD Textilwerke Deggendorf GmbH v Commission (T-244 and 486/93) [1995] ECR II-2265 . . . 468 UNECTEF v Heylens (222/86) [1987] ECR 4097 . . . 762 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (C-432/05) [2007] ECR I-2271 . . . 725, 726, 760, 771, 772 Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 (C-148/04) [2005] ECR I-11137 . . . 666 Unifrex v Commission and Council (281/82) [1984] ECR 1969 . . . 580, 756 Unifruit Hellas EPE v Commission (T-489/93) [1994] ECR II-1201 . . . 619, 622 Union de Pequeños Agricultores v Council (C-50/00 P) [2002] ECR I-6677 . . . 332, 336, 337, 339–41 Union des Employes de Service, Local 298 v Bibeault [1988] 2 SCR 1048 . . . 443 Union Européene de l’Artisanat et des Petites et Moyennes Enterprises (UEAPME) v Council (T-135/96) [1998] ECR II-2335 . . . 149, 248, 256, 260, 317 Union Malt v Commission (44–51/77) [1978] ECR 57 . . . 743 Union Royale Belge des Sociétés de Football Association and others v Bosman (C-415/93) [1995] ECR I-4921 . . . 559 Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08) [2010] ECR I-817 . . . 775 Unita Socio-Sanitaria Locale No 47 di Biella (USSL) v Istituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro (INAIL) (C-134/95) [1997] ECR I-195 . . . 286 United Kingdom v Commission (C-180/96) [1998] ECR I-2265 . . . 267, 441, 695, 696 United Kingdom v Council (C-84/94) [1996] ECR I-5755 . . . 371, 404, 432

xliii

United Kingdom v Council (C-150/94) [1998] ECR I-7235 . . . 475 United Kingdom v Council and Parliament (C-270/12) EU:C:2014:18 . . . 163, 170, 176, 405, 423 United Phosphorous v Commission (T-95/09 R) [2009] ECR II-47 . . . 723 United States v Mead Corporation 533 US 218 (2001) . . . 442 Upjohn v the Licensing Authority (C-120/97) [1999] ECR I-223 . . . 762, 782 Ursula Elsen v Bundesversicherungsanstalt (C-135/99) [2000] ECR I-10409 . . . 566 Ursula Voß v Land Berlin (C-300/06) [2007] ECR I-10573 . . . 678 Usha Martin v Council (T-119/06) [2010] ECR II-4335 . . . 651 Valsts ieņēmumu dienests v ‘LS Customs Services’ SIA (C-46/16) EU:C:2017:839 . . . 372 Valsts ieņēmumu dienests v ‘Veloserviss’ SIA (C-427/14) EU:C:2015:803 . . . 600 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (33/74) [1974] ECR 1299 . . . 558, 674 Van den Bergh en Jurgens and Van Dijk Food Products v Commission (265/85) [1987] ECR 1155 . . . 619, 622, 752 Van den Bergh Foods Ltd v Commission (T-65/98) [2003] ECR II-4653 . . . 433, 619 Van Duyn v Home Office (41/74) [1974] ECR 1337 . . . 282, 685 Van Landewyck SARL v Commission (209–215, 218/78) [1980] ECR 3125 . . . 359 Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (C-430–431/93) [1995] ECR I-4705 . . . 766, 771 VBVB and VBBB v Commission (43, 63/82) [1985] ECR 19 . . . 355 Vela Srl and Tecnagrind SL v Commission (T-141–142, 150–151/99) [2002] ECR II-4547 . . . 611 Ventouris Group Enterprises SA v Commission (T-59/99) [2003] ECR II-5257 . . . 667 Venturini v ASL Varese (C-159–162/12) EU:C:2013:79 . . . 687 Verein fur Konsumenteninformation v Commission (T-2/03) [2005] ECR II-1121 . . . 395, 396, 656 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag (C-368/95) [1997] ECR I-368 . . . 486, 521, 531, 692, 693 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xliv

Table of Cases

Minister van Sociale Zaken en Werkgelegenheid (C-383–385/06) [2008] ECR I-1561 . . . 106 Vereniging van Exporteurs in Levende Varkens v Commission (T-481 & 484/93) [1995] ECR II-2941 . . . 729, 739, 743 Vereniging voor Energie, Milieu en Water and others v Directeur van de Dienstuitvoering en toezicht energie (C-17/03) [2005] ECR I-4983 . . . 625 Verholen v Sociale Verzekeringsbank (C-87–89/90) [1991] ECR I-3757 . . . 762 Verli-Wallace v Commission (159/82) [1983] ECR 2711 . . . 608 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto (C-299/14) EU:C:2016:114 . . . 568 Viamex Agrar Handels GmbH and ZuchtviehKontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas (C-37 and 58/06) [2008] ECR I-69 . . . 647, 665 ‘Vilniaus energija’ UAB v Lietuvos metrologijos inspekcijos Vilniaus apskrities skyrius (C-423/13) EU:C:2014:218 . . . 675 Vinal SpA v Orbat SpA (46/80) [1981] ECR 77 . . . 286 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295–298/04) [2006] ECR I-6619 . . . 763, 774, 775, 779, 782 VIP Car Solutions SARL v European Parliament (T-89/07) [2009] ECR II-1403 . . . 731 Visa Europe Ltd and Visa International Service v European Commission (T-461/07) EU:T:2011:181 . . . 352, 373 Vischim Srl v Commission (T-420/05) [2009] ECR II-3841 . . . 433 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission (T-102/00) [2003] ECR II-2433 . . . 312, 314, 350 Vlaamse Gewest v Commission (T-214/95) [1998] ECR II-717 . . . 631 Vlaamse Televisie Maatschappij NV v Commission (T-266/97) [1999] ECR II-2329 . . . 352 Vloeberghs v High Authority (9 & 12/60) [1961] ECR 197 . . . 747 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (C-92 & 93/09) EU:C:2010:662 . . . 400, 490, 520, 529, 583, 664, 734 Volkswagen AG v Commission (T-62/98) [2000] ECR II-2707 . . . 364 Von Colson and Kamann v Land NordrheinWestfalen (14/83) [1984] ECR 1891 . . . 761 von Wolffersdorff v Standesamt der Stadt Karlsruhe (C-438/14) EU:C:2016:401 . . . 686

W Faust v Commission (52/81) [1982] ECR 3745 . . . 625 Wachauf v Germany (5/88) [1989] ECR 2609 . . . 486, 517 Walrave and Koch (36/74) [1974] ECR 1405 . . . 559 Walter Rau Lebensmittelwerke v De Smedt PvbA (261/81) [1982] ECR 3961 . . . 286, 671 Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien (C-147/01) [2003] ECR I-11365 . . . 778 WebMindLicenses kft (C-419/14) EU:C:2015: 832 . . . 519, 520 Weidacher v Bundesminister für Land- und Forstwirtschaft (C-179/00) [2002] ECR I-501 . . . 625 Wellingborough BC v Payless [1990] 1 CMLR 773 . . . 691 Werner (C-70/94) [1995] ECR I-3189 . . . 690 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission (T-228 & 233/99) [2003] ECR II-435 . . . 365, 367 Westzucker GmbH v Einfuhr-und Vorratsstelle für Zucker (57/72) [1973] ECR 321 . . . 440, 445–51 Wienand Meilicke v ADV/ORGA FA Meyer AG (C-83/91) [1992] ECR I-4871 . . . 286 Willame v Commission (110/63) [1965] ECR 649 . . . 753 William Cook plc v Commission (C-198/91) [1993] ECR I-2486 . . . 365 Williams v Court of Auditors (T-33/91) [1992] ECR II-2499 . . . 631 Willy Gerekens and Association Agricole pour la Promotion de la Commercialisation Laitière Procola v Luxembourg (C-459/02) [2004] ECR I-7315 . . . 602, 604 Willy Kempter KG v Hauptzollamt HamburgJonas (2/06) [2008] ECR I-411 . . . 774 Windpark Groothusen GmbH & Co Betriebs KG v Commission (C-48/96 P) [1998] ECR I-2873 . . . 312, 468 Wirtschaftsvereinigung Stahl and others v Commission (T-244/94) [1997] ECR II-1963 . . . 468 Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaf GbR v Finanzamt Krefeld (C­332/14) EU:C:2016:417 . . . 600 Wollast v EEC (18/63) [1964] ECR 85 . . . 753 Woodcock District Council v Bakers of Nailsea (C-27/95) [1997] ECR I-1847 . . . 453 Worms v High Authority (18/60) [1962] ECR 195 . . . 737 Wuidart v Laiterie coopérative eupenoise société coopérative (267–285/88) [1990] ECR I-435 . . . 580

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases Wunsche Handelsgesellschaft, Re Dec of 22 October 1986 [1987] 3 CMLR 225 . . . 531 Württembergische MilchverwertungSüdmilch-AG v Salvatore Ugliola (15/69) [1970] ECR 363 . . . 547, 553 WWF European Policy Programme v Council (T-264/04) [2007] ECR II-911 . . . 397 WWF UK (World Wide Fund for Nature) v Commission (T-105/95) [1997] ECR II-313 . . . 393, 394 X-Steuerberatungsgesellschaf (C-324/14) EU:C:2015:827 . . . 601 X (Minors) v Bedfordshire CC [1995] 2 AC 633 . . . 744 X and Y v Netherlands (1986) 8 EHRR 235 . . . 513 Yanukovych v Council of the European Union (T-346/14) EU:T:2016:497 . . . 313 Yanukovych v Council of the European Union (T-348/14) EU:T:2016:508 . . . 468 Yingli Energy (China) Co Ltd v Council of the European Union (T­160/14) EU:T:2017: 125 . . . 604 Ymeraga (C-87/12) EU:C:2013:291 . . . 573 Young, James and Webster v United Kingdom (1982) 4 EHRR 38 . . . 513 Zardi v Consorzio Agrario Provinciale di Ferrara (C-8/89) [1990] ECR I-2515 . . . 646 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol (C-468/08) 22 April 2010 . . . 678 Zoofachhandel Züpke GmbH v European Commission (T-817/14) EU:T:2016:157 . . . 369 Zuckerfabrik Suderdithmaschen AG v Hauptzollamt Itzehoe (C-143/88 & 92/89) [1991] ECR I-415 . . . 282, 725 Zunis Holding SA, Finan Srl and Massinvest SA v Commission (C-480/93) [1996] ECR I-1 . . . 267 Zurstrassen v Administration des Contributions Directes (C-87/99) [2000] ECR I-3337 . . . 548

NUMERICAL GENERAL COURT

T-7/89 SA Hercules Chemicals NV v Commission [1991] ECR II-1711 . . . 355, 361, 483, 619 T-65/89 BPB Industries plc and British Gypsum Ltd v Commission [1993] ECR II-389 . . . 355 T-79, 84–86, 89, 91–92, 94, 96, 98, 102, 104/89 BASF AG v Commission [1992] ECR II-315 . . . 267 T-123/89 Chomel v Commission [1990] ECR II-131 . . . 608

xlv

T-24/90 Automec Srl v Commission [1992] ECR II-2223 . . . 364 T-44/90 La Cinq SA v Commission [1992] ECR II-1 . . . 383, 481 T-23/91 Maurissen v Court of Auditors [1992] ECR II-2377 . . . 468 T-30–32/91 Solvay SA v Commission [1995] ECR II-1775 . . . 355, 361 T-33/91 Williams v Court of Auditors [1992] ECR II-2499 . . . 631 T-36–37/91 ICI v Commission [1995] ECR II-1847 . . . 355 T-7/92 Asia Motor France SA v Commission [1993] ECR II-669 . . . 364, 370, 383, 481 T-10–12, 15/92 SA Cimenteries CBR [1992] ECR II-2667 . . . 267 T-37/92 Bureau Européen des Unions Consommateurs and National Consumer Council v Commission [1994] ECR II-285 . . . 364 T-144/92 Bureau Européen des Médias de l’Industrie Musicale (BEMIM) v Commission [1995] ECR II-147 . . . 364 T-2/93 Air France v Commission [1994] ECR II-323 . . . 639 T-5/93 Tremblay v Commission [1995] ECR II-185 . . . 371 T-24–26 & 28/93 Compagnie Maritime Belge Transports SA and others v Commission [1996] ECR II-1201 . . . 469 T-244 and 486/93 TWD Textilwerke Deggendorf GmbH v Commission [1995] ECR II-2265 . . . 430 T-435/93 ASPEC v Commission [1995] ECR II-1281 . . . 318 T-450/93 Lisrestal v Commission [1994] ECR II-1177 . . . 312, 314, 350 T-456/93 Consorzio Gruppo di Azioni Locale Murgia Messapica v Commission [1994] ECR II-361 . . . 619 T-458 & 523/93 ENU v Commission [1995] ECR II-2459 . . . 744 T-459/93 Siemens v Commission [1995] ECR II-1675 . . . 364 T-466, 469, 473, 474 and 477/93 O’Dwyer v Council [1996] ECR II-2071 . . . 622, 740 T-472/93 Campo Ebro and Others v Commission [1995] ECR II-421 . . . 739 T-480 and 483/93 Antillean Rice Mills NV v Commission [1995] ECR II-2305 . . . 732 T-481 & 484/93 Vereniging van Exporteurs in Levende Varkens v Commission [1995] ECR II-2941 . . . 729, 739, 743 T-489/93 Unifruit Hellas EPE v Commission [1994] ECR II-1201 . . . 619, 622

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xlvi

Table of Cases

T-514/93 Cobrecaf v Commission [1995] ECR II-621 . . . 747 T-534/93 Grynberg and Hall v Commission [1994] ECR II-595 . . . 619 T-554/93 Saint v Council [1997] ECR II-563 . . . 267 T-572/93 Odigitria v Council and Commission [1995] ECR II-2025 . . . 747 T-583/93 Stichting Greenpeace Council (Greenpeace International) v Commission [1995] ECR II-2205 . . . 318 T-67/94 Ladbroke Racing Ltd v Commission [1998] ECR II-1 . . . 731 T-95/94 Sytraval and Brink’s France v Commission [1995] ECR II-2651 . . . 365, 366, 381, 382 T-162/94 NMB France SARL v Commission [1996] ECR II-427 . . . 650 T-167/94 Nolle v Council [1995] ECR II-2589 . . . 363, 756 T-194/94 Carvel and Guardian Newspapers Ltd v Council [1995] ECR II-2765 . . . 393 T-201/94 Kusterman v Council and Commission [2002] ECR II-415 . . . 736 T-244/94 Wirtschaftsvereinigung Stahl and others v Commission [1997] ECR II-1963 . . . 468 T-260/94 Air Inter SA v Commission [1997] ECR II-997 . . . 313, 314, 350, 525 T-261/94 Schulte v Council and Commission [2002] ECR II-441 . . . 736, 747 T-305–7, 313–6, 318, 325, 328–9, and 335/94 Limburgse Vinyl Maatschappij NV and others v Commission [1999] ECR II-931 . . . 729, 733 T-336/94 Efisol SA v Commission [1996] ECR II-1343 . . . 626, 628, 743 T-346/94 France-Aviation v Commission [1995] ECR II-2841 . . . 353 T-348/94 Enso Espanola SA v Commission [1998] ECR II-1875 . . . 360 T-369/94 & 85/95 DIR International Film Srl and others v Commission [1998] ECR II-357 . . . 169, 631 T-371 & 394/94 British Airways plc and British Midland Airways Ltd v Commission [1998] ECR II-2405 . . . 363 T-374, 375, 384 and 388/94 European Night Services v Commission [1998] ECR II-3141 . . . 376, 481 T-380/94 AIUFFASS v Commission [1996] ECR II-2169 . . . 318 T-387/94 Asia Motor France SA v Commission [1996] ECR II-961 . . . 364, 370, 732 T-390/94 Aloys Schröder v Commission [1997] ECR II-501 . . . 744 T-395/94 R II Atlantic Container Line v Commission [1995] ECR II-2893 . . . 724

T-73/95 Estabelecimentos Isidore M Oliveira SA v Commission [1997] ECR II-381 . . . 624 T-77/95 RV Union Française de l’Express (Ufex), DHL International, Service CRIE and May Courier v Commission [2000] ECR II-2167 . . . 364 T-81/95 Interhotel-Sociedade Internacional de Hoteis SARL v Commission [1997] ECR II-1265 . . . 611–13 T-93/95 Laga v Commission [1998] ECR II-195 . . . 737 T-105/95 WWF UK (World Wide Fund for Nature) v Commission [1997] ECR II-313 . . . 393, 394 T-106/95 Fédération Française des Sociétés d’Assurances (FFSA) v Commission [1997] ECR II-229 . . . 442 T-133 and 204/95 International Express Carriers Conference v Commission [1998] ECR II-3645 . . . 468 T-168/95 R Eridania and others v Council [1995] ECR II-2817 . . . 724 T-174/95 Svenska Journalistforbundet v Council [1998] ECR II-2289 . . . 394 T-175/95 BASF Lacke & Farben AG v Commission [1999] ECR II-1581 . . . 355 T-184/95 Dorsch Consult [1998] ECR II-667 . . . 747, 752 T-198/95, 171/96, 230/97, 174/98, and 225/98 Comafrica SpA and Dole Fresh Fruit Europa Ltd & Co v Commission [2001] ECR II-1975 . . . 744, 746 T-214/95 Vlaamse Gewest v Commission [1998] ECR II-717 . . . 631 T-219/95 R Danielsson v Commission [1995] ECR II-3051 . . . 724 T-227/95 Assidoman Kraft Products AB v Commission [1997] ECR II-1185 . . . 609 T-41/96 Bayer AG v Commission [2000] ECR II-3383 . . . 442 T-42/96 Eyckeler & Malt AG v Commission [1998] ECR II-401 . . . 353, 354, 356 T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773 . . . 312, 314, 350, 353, 356 T-54/96 Oleifici Italiani EU:T:1998:204 . . . 5 T-60/96 Merck & Co Inc, NV Organon and Glaxo Wellcome plc v Commission [1997] ECR II-849 . . . 318 T-79/96, 260/97, 117/98 Camar Srl and Tico Srl v Commission [2000] ECR II-2193 . . . 744, 745, 748, 749 T-113/96 Dubois et Fils SA v Council and Commission [1998] ECR II-125 . . . 659 T-120/96 Lilly Industries Ltd v Commission [1998] ECR II-2571 . . . 267

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases T-135/96 Union Européene de l’Artisanat et des Petites et Moyennes Enterprises (UEAPME) v Council [1998] ECR II-2335 . . . 149, 248, 256, 260, 317 T-164/96 R Moccia Irme v Commission [1996] ECR II-2261 . . . 724 T-203/96 Embassy Limousines & Services v European Parliament [1998] ECR II-4239 . . . 621 T-5/97 Industrie des Poudres Spheriques SA v Commission [2000] ECR II-3755 . . . 364 T-126/97 Sonasa-Sociedade de Seguranca Ld v Commission [1999] ECR II-2793 . . . 611, 624 T-182/97 Smanor v Commission [1998] ECR II-271 . . . 815 T-186, 187, 190, 192, 210, 211, 216–218, 279–280, 293/97 & 147/99 Kaufring AG v Commission [2001] ECR II-1337 . . . 353, 659 T-188/97 Rothmans v Commission [1999] ECR II-2463 . . . 120, 394 T-266/97 Vlaamse Televisie Maatschappij NV v Commission [1999] ECR II-2329 . . . 352 T-288/97 Regione Autonoma Friuli-Venezia Giulia v Commission [2001] ECR II-1169 . . . 466, 666 T-290/97 Mehibas Dordtselaan BV v Commission ECR [2000] ECR II-15 . . . 314, 361, 619 T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837 . . . 149, 313, 350, 525, 650 T-46 and 151/98 CEMR v Commission [2000] ECR II-167 . . . 611, 612, 619, 621 T-62/98 V olkswagen AG v Commission [2000] ECR II-2707 . . . 364 T-65/98 Van den Bergh Foods Ltd v Commission [2003] ECR II-4653 . . . 433, 619 T-84/98 C v Council [2000] ECR IA-113 . . . 749 T-87/98 International Potash Company v Council [2000] ECR II-3179 . . . 650, 651 T-94/98 Alferink v Commission [2008] ECR II-1125 . . . 601, 742 T-99/98 Hameico Stuttgart GmbH v Council and Commission [2003] ECR II-2195 . . . 737, 748 T-138/98 Armement Cooperatif Artisanal Vendéen (ACAV) v Council [1999] ECR II-1797 . . . 335 T-154/98 Asia Motor France SA v Commission [2000] ECR II-3453 . . . 364 T-160/98 Firma Leon Van Parys NV and Pacific Fruit Company NV v Commission [2002] ECR II-233 . . . 756 T-178/98 Fresh Marine Company SA v Commission [2000] ECR II-3331 . . . 743, 744, 745, 747

xlvii

T-191, 212, 214/98 Atlantic Container Line AB v Commission [2003] ECR II-3275 . . . 364, 636, 731 T-1/99 T Port GmbH & Co KG v Commission [2001] ECR II-465 . . . 749 T-7/99 Medici Grimm KG v Council [2000] ECR II-2671 . . . 602, 753 T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305 . . . 149, 193, 317, 334, 368, 383, 444, 452–6, 477, 481, 516, 648, 649, 654, 655, 659, 697, 699, 700, 702, 720, 724 T-18/99 Cordis Obst und Gemuse GrossHandel GmbH v Commission [2001] ECR II-913 . . . 626, 739, 754, 756, 757 T-23/99 LRAF 1998 A/S v Commission [2002] ECR II-1705 . . . 626 T-30/99 Bocchi Food Trade International GmbH v Commission [2001] ECR II-943 . . . 646 T-31/99 ABB Asea Brown Boveri Ltd v Commission [2002] ECR II-1881 . . . 364, 626 T-36/99 Lenzing AG v Commission [2004] ECR II-3597 . . . 439 T-52/99 T Port & Co KG v Commission [2001] ECR II-981 . . . 468 T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313 . . . 367, 393 T-55/99 CETM v Commission [2000] ECR II-3207 . . . 666 T-59/99 Ventouris Group Enterprises SA v Commission [2003] ECR II-5257 . . . 667 T-70/99 Alpharma Inc v Council [2002] ECR II-3495 . . . 149, 317, 444, 452, 620, 623, 648, 699 T-72/99 Meyer v Commission [2000] ECR II-2521 . . . 619 T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and Parliament [2000] ECR II-4165 . . . 817 T-114/99 CSR PAMPRYL v Commission [1999] ECR I-3331 . . . 331 T-126/99 Graphischer Maschinenbau GmbH v Commission [2002] ECR II-2427 . . . 466, 731 T-127, 129 and 148/99 Territorio Histórico de Álava-Diputación Foral de Álava v Commission [2002] ECR II-1275 . . . 442 T-141–142, 150–151/99 Vela Srl and Tecnagrind SL v Commission [2002] ECR II-4547 . . . 611 T-152/99 Hijos de Andres Molina SA (HAMSA) v Commission [2002] ECR II-3049 . . . 439, 442 T-155/99 Dieckmann & Hansen GmbH v Commission [2001] ECR II-3143 . . . 629, 630, 638 T-171/99 Corus UK Ltd v Commission [2001] ECR II-2967 . . . 729, 753

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xlviii

Table of Cases

T-187/99 Agrana Zucker und Stark AG v Commission [2001] ECR II-1587 . . . 364, 370 T-191/99 Petrie v Commission [2001] ECR II-3677 . . . 390, 815 T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731 . . . 106, 467, 624, 666 T-205/99 Hyper Srl v Commission [2002] ECR II-3141 . . . 356 T-206/99 Metropole Television SA v Commission [2001] ECR II-1057 . . . 364, 370 T-222, 327 & 329/99 Jean-Claude Martinez, Charles de Gaulle, Front National and Emma Bonino v EP [2001] ECR II-2823 . . . 620, 656 T-228 and 233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II-435 . . . 365, 367 T-326/99 Olivieri v Commission and EMEA [2003] ECR II-6053 . . . 705 T-342/99 Airtours plc v Commission [2002] ECR II-2585 . . . 456, 470, 473 T-3/00 and 337/04 Athanasios Pitsiorlas v Council and ECB [2007] ECR II-4779 . . . 742, 747, 748 T-57/00 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission [2003] ECR II-607 . . . 743, 747 T-61 & 62/00 APOL and AIPO v Commission [2003] ECR II-635 . . . 666 T-67, 68, 71 & 78/00 JFE Engineering Corp v Commission [2004] ECR II-2501 . . . 636 T-74, 76, 83–85, 132, 137 & 141/00 Artegodan GmbH v Commission [2002] ECR II-4945 . . . 176, 383, 394, 480, 515, 516, 697–9, 704, 705, 720, 721 T-81/00 Associacao Comercial de Aveiro v Commission [2002] ECR II-2509 . . . 467 T-102/00 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] ECR II-2433 . . . 312, 314, 350 T-147/00 Les Laboratoires Servier v Commission [2003] ECR II-85 . . . 698, 710 T-170/00 Forde-Reederie GmbH v Council and Commission [2002] ECR II-515 . . . 752 T-180/00 Astipeca SL v Commission [2002] ECR II-3985 . . . 666 T-186/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-719 . . . 666 T-209/00 Lamberts v Commission [2002] ECR II-2203 . . . 736, 817, 818 T-210/00 Etablissments Biret et Cie SA v Council [2002] ECR II-47 . . . 747 T-211/00 Kuijer v Council [2002] ECR II-485 . . . 394

T-223/00 Kyowa Hakko Kogyo Co Ltd and Kyowa Hakko Europe GmbH v Commission [2003] ECR II-2553 . . . 619, 636 T-224/00 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v Commission [2003] ECR II-2597 . . . 667, 731 T-241/00 Azienda Agricola ‘Le Canne’ Srl v Commission [2002] ECR II-1251 . . . 363, 370 T-251/00 Lagardère SCA and Canal+ SA v Commission [2002] ECR II-4825 . . . 608, 614, 616, 618 T-254, 270, 277/00 Hotel Cipriani SpA and Others v Commission [2008] ECR II-3269 . . . 465 T-305/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5659 . . . 666 T-306/00 Conserve Italia Soc Coop rl v Commission [2003] ECR II-5705 . . . 667 T-308/00 Salzgitter AG v Commission [2004] ECR II-1933 . . . 465 T-310/00 MCI, Inc v Commission [2004] ECR II-3253 . . . 619 T-332 & 350/00 Rica Foods (Free Zone) NV and Free Trade Foods NV v Commission [2002] ECR II-4755 . . . 468 T-340/00 Communita Montana della Valnerina v Commission [2003] ECR II-811 . . . 106 T-344–345/00 CEVA Sante Animale SA and Pharmacia Enterprises SA v Commission [2003] ECR II-229 . . . 468 T-383/00 Beamglow Ltd v European Parliament, Council and Commission [2005] ECR II-5459 . . . 739, 752 T-40/01 Scan Office Design SA v Commission [2002] ECR II-5043 . . . 747 T-44, 119, 126/01 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission [2003] ECR II-1209 . . . 737 T-48/01 François Vainker and Brenda Vainker v European Parliament [2004] ECR IA-51 . . . 749 T-58/01 Solvay SA v Commission [2009] ECR II-4781 . . . 356 T-64–65/01 Afrikanische Frucht-Compagnie GmbH and another v Commission [2004] ECR II-521 . . . 625, 740, 752 T-66/01 ICI v Commission EU:T:2010: 255 . . . 356 T-94, 152 & 286/01 Hirsch, Nicastro and Priesemann v ECB [2003] ECR IA-1 . . . 734 T-116 & 118/01 P & O European Ferries (Vizcaya), SA and Diputacion Foral de Vizcaya v Commission [2003] ECR II-2957 . . . 779 T-125/01 Jose Marti Peix, SA v Commission [2003] ECR II-865 . . . 731

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases T-137/01 Stadtsportverband Neuss eV v Commission [2003] ECR II-3103 . . . 611 T-139/01 Comafrica SpA and Dole Fresh Fruit Europe Ltd and Co v Commission [2005] ECR II-409 . . . 338, 748 T-142 and 283/01 Organización de Productores de Túnidos Congelados (OPTUC) v Commission [2004] ECR II-329 . . . 622 T-168/01 GlaxoSmithKline Services Unlimited v Commission [2006] ECR II-2969 . . . 432 T-176/01 Ferriere Nord SpA v Commission [2004] ECR II-3931 . . . 634 T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365 . . . 339 T-180/01 Euroagri Srl v Commission [2004] ECR II-369 . . . 610, 611 T-196/01 Thessalonikis v Commission [2003] ECR II-3987 . . . 106, 732 T-198/01 Technische Glaswerke Ilmenau GmbH v Commission [2004] ECR II-2717 . . . 366, 368, 381, 467, 723 T-213–214/01 Österreichische Postsparkasse AG and Bank für Arbeit und Wirtschaft AG v Commission [2006] ECR II-1601, . . . 619 T-227–229, 265, 266 and 270/01 Territorio Histórico de Álava-Diputación Foral de Álava and Comunidad autónoma del País VascoGobierno Vasco and Others v Commission [2009] ECR II-3029 . . . 365, 468 T-273/01 Innova Privat-Akademie GmbH v Commission [2003] ECR II-1093 . . . 620 T-297–298/01 SIC-Sociedade Independente de Comunicação SA v Commission [2004] ECR II-743 . . . 732 T-301/01 Alitalia-Linee aeree italiane SpA v Commission [2008] ECR II-1753 . . . 732 T-304/01 Julia Abad Pérez v Council of the European Union and Commission [2006] ECR II-4857 . . . 742, 746, 747 T-306/01 R Aden v Council and Commission [2002] ECR II-2387 . . . 723 T-307/01 Jean-Paul François v Commission [2004] ECR II-1669 . . . 732, 749 T-310/01 Schneider Electric SA v Commission [2002] ECR II-4071 . . . 733 T-333/01 Karl Meyer v Commission [2003] ECR II-117 . . . 747 T-5/02 Tetra Laval BV v Commission [2002] ECR II-4381 . . . 355, 457, 458, 470, 472 T-47/02 Danzer and Danzer v Council [2006] ECR II-1779 . . . 737 T-53/02 Ricosmos BV v Commission [2005] ECR II-3173 . . . 356 T-59/02 Archer Daniels Midland Co v Commission [2006] ECR II-3627 . . . 604

xlix

T-104/02 Société Française de Transports Gondrand Frères SA v Commission [2004] ECR II-3211 . . . 731 T-107/02 G E Betz, Inc, formerly BetzDearborn Inc v OHIM [2004] ECR II-1845 . . . 619 T-109, 118, 122, 125, 126, 128, 129, 132 and 136/02 Bolloré SA and Others v Commission [2007] ECR II-947 . . . 358, 360, 636 T-137/02 Pollmeier Malchow GmbH & Co KG v Commission [2004] ECR II-3541 . . . 439, 632 T-163/02 R Montan Gesellschaft Voss mbH Stahlhandel and others v Commission [2002] ECR II-3219 . . . 723, 724 T-168/02 IFAW Internationaler TierschultzFonds GmbH v Commission [2004] ECR II-4135 . . . 397 T-171/02 Regione Autonoma della Sardegna v Commission [2005] ECR II-2123 . . . 624 T-177/02 Malagutti-Vezinhet SA v Commission [2004] ECR II-827 . . . 699 T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781 . . . 367, 373, 667, 732, 733 T-213/02 SNF SA v Commission [2004] ECR II-3047 . . . 338, 626, 631 T-228/02 Organisation des Modjahedines du peuple d’Iran v Council and UK [2006] ECR II-4665 . . . 461, 729 T-231/02 Gonnelli and AIFO v Commission [2004] ECR II-1051 . . . 338 T-283/02 EnBW Kernkraft GmbH v Commission [2005] ECR II-913 . . . 619, 744 T-304/02 Hoek Loos NV v Commission [2006] ECR II-1887 . . . 733 T-309/02 Acegas-APS SpA v Commission [2009] ECR II-1809 . . . 338 T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261 . . . 602 T-392/02 Solvay Pharmaceuticals BV v Council [2003] ECR II-4555 . . . 698, 699, 720 T-2/03 Verein fur Konsumenteninformation v Commission [2005] ECR II-1121 . . . 395, 396, 656 T-20/03 Kahla/Thüringen Porzellan GmbH v Commission [2008] ECR II-2305 . . . 465 T-28/03 Holcim (Deutschland) AG v Commission [2005] ECR II-1357 . . . 731, 753 T-68/03 Olympiaki Aeroporia Ypiresies AE v Commission [2007] ECR II-2911 . . . 366 T-84/03 Turco v Council [2004] ECR II-4061 . . . 397, 398 T-138/03 ÉR v Council and Commission [2006] ECR II-4923 . . . 747, 754, 755, 756 T-160/03 AFCon Management Consultants v Commission [2005] ECR II-981 . . . 749

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

l

Table of Cases

T-212/03 My Travel Group plc v Commission [2008] ECR II-1967 . . . 742, 743 T-279/03 Galileo International Technology LLC v Commission [2006] ECR II-1291 . . . 748, 750 T-309/03 Manel Camós Grau v Commission [2006] ECR II-1173 . . . 267 T-333/03 Masdar (UK) Ltd v Commission [2006] ECR II-4377 . . . 744 T-347/03 Eugénio Branco Ld v Commission [2005] ECR II-2555 . . . 624 T-351/03 Schneider Electric SA v Commission [2007] ECR II-2237 . . . 360 T-355 & 446/04 Co-Frutta Soc coop v European Commission [2010] ECR II-1 . . . 267, 394, 397 T-364/03 Medici Grimm KG v Council [2006] ECR II-79 . . . 742 T-369/03Arizona Chemical and others v Commission [2004] ECR II-205 . . . 724 T-391/03 & 70/04 Franchet and Byk v Commission [2006] ECR II-2023 . . . 397 T-410/03 Hoechst GmbH v Commission [2008] ECR II-881 . . . 357 T-413/03 Shandong Reipu Biochemicals Co Ltd v Council [2006] ECR II-2243 . . . 369 T-16/04 Arcelor SA v European Parliament and Council, 2 March 2010 . . . 338, 347, 540, 738, 742, 744 T-25/04 González y Díez, SA v Commission [2007] ECR II-3121 . . . 465, 603 T-48/04 Qualcomm Wireless Business Solutions Europe BV v Commission [2009] ECR II-2029 . . . 460 T-78/04 Sumitomo Chemical (UK) plc v Commission [2004] ECR II-2049 . . . 723, 724 T-124/04 Jamal Ouariachi v Commission [2005] ECR II-4653 . . . 750 T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995 . . . 737, 740 T-201/04 Microsoft Corp v Commission [2007] ECR II-3601 . . . 460, 724 T-229/04 Kingdom of Sweden v Commission [2007] ECR I-2437 . . . 700 T-236 & 241/04 EEB and Stichting Natuur en Milieu v Commission [2005] ECR II-4945 . . . 338 T-239 & 323/04 Italy and Brandt Italia SpA v Commission [2009] ECR II-3265 . . . 779 T-240/04 French Republic v Commission [2007] ECR II-4035 . . . 405, 601 T-264/04 WWF European Policy Programme v Council [2007] ECR II-911 . . . 397 T-271/04 Citymo SA v Commission [2007] ECR II-1375 . . . 621 T-291/04 Enviro Tech Europe Ltd and Enviro Tech International, Inc v European Commission, EU:T:2011:760 . . . 456

T-309, 317, 329, 336/04 T V/2 Danmark A/S and Others v Commission [2008] ECR II-2935 . . . 365, 369 T-335 & 446/04 Co-Frutta Soc coop v European Commission, 19 January 2010 . . . 249 T-339/04 France Télécom SA v Commission [2007] ECR II-521 . . . 433 T-340/04 France Télécom SA v Commission [2007] ECR II-573 . . . 375 T-348/04 Société internationale de diffusion et d’édition SA (SIDE) v Commission [2008] ECR II-625 . . . 603 T-374/04 Germany v Commission [2007] ECR II-4431 . . . 631 T-416/04 Kontouli v Council [2006] ECR II-A-2 897 . . . 609, 616 T-462/04 HEG Ltd and Graphite India Ltd v Council [2008] ECR II-3685 . . . 463 T-500/04 Commission v IIC InformationsIndustrie Consulting GmbH [2007] ECR II-1443 . . . 611 T-18/05 IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube v European Commission [2010] ECR II-1769 . . . 667 T-24/05 Alliance One International, Inc v Commission EU:T:2010:453 . . . 370 T-68/05 Aker Warnow Werft GmbH and Kvaerner ASA v Commission [2009] ECR II-355 . . . 466 T-101 and 111/05 BASF AG and UCB SA v Commission [2007] ECR II-4949 . . . 667 T-112/05 Akzo Nobel NV v Commission [2007] ECR II-5049 . . . 733 T-161/05 Hoechst GmbH v Commission [2009] ECR II-3555 . . . 356 T-299/05 Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Co Ltd v Council [2009] ECR II-573 . . . 463 T-321/05 AstraZeneca AB and AstraZeneca plc v European Commission EU:T:2010:266 . . . 460 T-412/05 M v Ombudsman [2008] ECR II-197 . . . 818 T-420/05 Vischim Srl v Commission [2009] ECR II-3841 . . . 433 T-432/05 EMC Development AB v European Commission,EU:T:2010:189 . . . 364 T-446/05 Amann & Söhne GmbH & Co KG and Cousin Filterie SAS v Commission EU:T:2010:16 . . . 460 T-447/05 Société des plantations de Mbanga SA (SPM) v Commission [2007] ECR II-1 . . . 732 T-452/05 Belgian Sewing Thread (BST) NV v European Commission, 28 April 2010 . . . 748 T-42/06 Bruno Gollnisch v European Parliament [2010] ECR II-1135 . . . 747

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases T-49/06 Interpipe Nikopolsky Seamless Tubes v Council [2009] ECR II-383 . . . 463 T-50 and 69/06 RENV II Ireland and Aughinish Alumina Ltd v European Commission EU:T:2016:22 . . . 619 T-75/06 Bayer CropScience AG and others v Commission [2008] ECR II-2081 . . . 465 T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO) [2008] ECR II-31 . . . 338 T-119/06 Usha Martin v Council [2010] ECR II-4335 . . . 651 T-143/06 MTZ Polyfilms Ltd v Council [2009] ECR II-4133 . . . 405 T-145/06 Omya AG v Commission [2009] ECR II-145 . . . 460 T-155/06 Tomra Systems ASA and Others v Commission EU:T:2010:370 . . . 460 T-170/06 Alrosa Company Ltd v Commission [2007] ECR II-2601 . . . 647 T-186/06 Solvay SA v Commission EU:T:2011:276 . . . 356 T-191/06 FMC Foret v Commission [2011] ECR II-2959 . . . 358 T-197/06 FMC Corp v European Commission EU:T:2011:282 . . . 356 T-282/06 Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH v Commission [2007] ECR II-2149 . . . 460 T-310/06 Hungary v Commission [2007] ECR II-4619 . . . 465 T-369/06 Holland Malt v Commission [2009] ECR II-3313 . . . 624 T-402/06 Spain v Commission EU:T:2013: 445 . . . 392 T-404/06 P European Training Foundation (ETF) v Pia Landgren [2009] ECR II-2841 . . . 640 T-410/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council, 4 March 2010 . . . 313, 350 T-411/06 Sogelma-Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771 . . . 65, 175 T-19/07 Systran SA and Systran Luxembourg SA v European Commission EU:T:2010: 526 . . . 373 T-31/07 Du Pont de Nemours (France) SAS v Commission EU:T:2013:167 . . . 742 T-42/07 Dow Chemical v Commission, 13 July 2011 . . . 352 T-49/07 Sofiane Fahas v Council, 7 December 2010 . . . 468

li

T-51/07 Agrar-Invest-Tatschl GmbH v Commission [2008] ECR II-2825 . . . 731 T-74/07 Germany v Commission [2009] ECR II-107 . . . 666 T-89/07 VIP Car Solutions SARL v European Parliament [2009] ECR II-1403 . . . 731 T-112/07 Hitachi v Commission EU:T:2011: 3871 . . . 356 T-117 & 121/07 Areva v Commission [2011] ECR II-633 . . . 352 T-122–124/07 Siemens AG Österreich and others v Commission [2011] ECR II-793 . . . 358, 636 T-132/07 Fuji Electric Co v Commission EU:T:2011:344 . . . 519 T-151/07 Kone v Commission EU:T:2011:365 . . . 356 T-252, 271–272/07 Sungro SA v Council and Commission [2010] ECR II-55 . . . 746 T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019 . . . 461 T-257/07 R France v Commission [2007] ECR II-4153 . . . 723 T-264/07 CSL Behring GmbH v European Commission and European Medicines Agency (EMA) EU:T:2010:371 . . . 623 T-300/07 Evropaïki Dynamiki-Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission EU:T:2010: 372 . . . 463 T-326/07 Cheminova A/S v Commission [2009] ECR II-2685 . . . 432, 639, 698 T-342/07 Ryanair Holdings plc v Commission EU:T:2010:280 . . . 460 T-348/07 Stichting Al-Aqsa v Council [2010] ECR II-4575 . . . 732 T-461/07 Visa Europe Ltd and Visa International Service v European Commission EU:T:2011:181 . . . 352, 373 T-475/07 Dow AgroSciences Ltd v European Commission EU:T:2011:445 . . . 456, 699 T-62/08 ThyssenKrupp Acciai Speciali Terni SpA v Commission EU:T:2010:268 . . . 366 T-68/08 Fédération internationale de football association (FIFA) v European Commission [2011] ECR II-349 . . . 659 T-195/08 Antwerpse Bouwwerken NV v European Commission [2009] ECR II-4439 . . . 267 T-246 & 332/08 Melli Bank plc v Council [2009] ECR II-2629 . . . 400 T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487 . . . 461 T-362/08 IFAW Internationaler Tierschutz-Fonds GmbH v European Commission [2011] ECR II-11 . . . 656

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lii

Table of Cases

T-369/08 European Wire Rope Importers Association (EWRIA) v Commission [2010] ECR II-6283 . . . 731 T-390/08 Bank Melli Iran v Council [2009] ECR II-3967 . . . 468 T-427/08 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission EU:T:2010:517 . . . 364, 460 T-52/09 R Nycomed Danmark ApS v Agence européenne des médicaments (EMEA) [2009] ECR II-43 . . . 723 T-85/09 Kadi v European Commission [2010] ECR II-5177 . . . 461, 475 T-95/09 R United Phosphorous v Commission [2009] ECR II-47 . . . 723 T-149/09 R Dover v European Parliament [2009] ECR II-66 . . . 724 T-96/10 Rütgers Germany GmbH v European Chemicals Agency (ECHA) EU:T:2013: 109 . . . 267 T-189/10 GEA Group AG v European Commission EU:T:2015:504 . . . 312, 353 T-262/10 Microban International Ltd and Microban (Europe) Ltd v Commission, 25 October 2011 . . . 317 T-300/10 Internationaler Hilfsfonds eV v European Commission EU:T:2012:247 . . . 394 T-301/10 Sophie in ’t Veld v European Commission EU:T:2013:135 . . . 394 T-333/10 Animal Trading Company (ATC) BV v European Commission EU:T:2013:451 . . . 456, 698 T-526/10 Inuit Tapiriit Kanatami v European Commission EU:T:2013:215 . . . 647 T-111/11 ClientEarth v European Commission EU:T:2013:482 . . . 395 T-116/11 European Medical Association (EMA) v European Commission EU:T:2013:634 . . . 753 T-204/11 Spain v European Commission EU:T:2015:91 . . . 456 T-217/11 Claire Staelen v European Ombudsman EU:T:2015:238 . . . 818 T-229 and 276/11 Lord Inglewood v European Parliament EU:T:2013:127 . . . 602 T-233/11 Hellenic Republic v European Commission EU:T:2015:948 . . . 466 T-245/11 ClientEarth and the International Chemical Secretariat v European Chemicals Agency (ECHA) EU:T:2015:675 . . . 394, 656 T-260/11 Spain v European Commission EU:T:2014:555 . . . 313, 350 T-279/11 T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission EU:T:2013:299 . . . 338–9

T-331/11 Besselink v Commission EU:T:2013:499 . . . 396 T-456/11 International Cadmium Association (ICdA) v European Commission EU:T:2013:594 . . . 456 T-471/11 Éditions Odile Jacob SAS v European Commission EU:T:2014:739 . . . 460, 602, 732, 733 T-480/11 Technion—Israel Institute of Technology v European Commission EU:T:2015:272 . . . 396 T-534/11 Schenker AG v European Commission EU:T:2014:854 . . . 394 T-545/11 Stichting Greenpeace Nederland and PAN Europe v European Commission EU:T:2013:523 . . . 397 T-601/11 Dansk Automat Brancheforening v European Commission EU:T:2014:839 . . . 344 T-190/12 Tomana v Council of the European Union and European Commission EU:T:2015:222 . . . 314 T-290/12 Poland v European Commission EU:T:2015:221 . . . 622 T-296/12 The Health Food Manufacturers’ Association and Others v European Commission EU:T:2015:375 . . . 316 T-317/12 Holcim (Romania) SA v European Commission EU:T:2014:782 . . . 755 T-473/12 Aer Lingus Ltd v European Commission EU:T:2015:78 . . . 466 T-512/12 Front Polisario v Council EU:T:2015:953 . . . 344 T-79/13 Accorinti v European Central Bank EU:T:2015:756 . . . 625, 742, 752 T-114/13 P Cerafogli v European Central Bank EU:T:2015:67 . . . 313 T-214/13 Rainer Typke v European Commission EU:T:2015:448 . . . 395 T-261/13 and 86/14 Netherlands v European Commission EU:T:2015:671 . . . 146, 817 T-397/13 Tilly-Sabco v European Commission EU:T:2016:8 . . . 345, 346 T-461/13 Spain v Commission EU:T:2015: 89 . . . 433 T-529/13 Balázs-Árpád Izsák and Attila Dabis v European Commission EU:T:2016:282 . . . 417 T-549/13 French Republic v European Commission EU:T:2016:6 . . . 465 T-646/13 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission EU:T:2017:59 . . . 150 T-677/13 Axa Versicherung AG v European Commission EU:T:2015:473 . . . 394, 656

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases T-44/14 Costantini v European Commission EU:T:2016:223 . . . 423 T-103/14 Frucona Košice as v European Commission EU:T:2016:15 . . . 728 T-138/14 Randa Chart v European External Action Service EU:T:2015:981 . . . 373 T-157/14 JingAo Solar Co Ltd v Council of the European Union EU:T:2017:127 . . . 604, 659 T-160/14 Yingli Energy (China) Co Ltd v Council of the European Union EU:T:2017:125 . . . 604 T-162/14 Canadian Solar Emea GmbH v Council EU:T:2017:12 . . . 651 T-219/14 Regione autonoma della Sardegna v European Commission EU:T:2017:266 . . . 466 T-312/14 Federcoopesca v European Commission EU:T:2015:472 . . . 344, 346 T-346/14 Yanukovych v Council of the European Union EU:T:2016:497 . . . 313 T-348/14 Yanukovych v Council of the European Union EU:T:2016:508 . . . 468 T-424 and 425/14 ClientEarth v European Commission EU:T:2015:848 . . . 396 T-463/14 Österreichische Post AG v European Commission EU:T:2016:24 . . . 370 T-479/14 Kendrion NV v European Union, represented by the Court of Justice of the European Union, EU:T:2017:48 . . . 747 T-671/14 Bayerische Motoren Werke AG v European Commission EU:T:2017:599 . . . 466 T-710/14 Herbert Smith Freehills LLP v Council of the European Union EU:T:2016:49 . . . 397 T-712/14 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission EU:T:2017:748 . . . 364 T-754/14 Efler v European Commission EU:T:2017:323 . . . 150 T-796/14 Philip Morris Ltd v European Commission EU:T:2016:483 . . . 370, 396, 397 T-817/14 Zoofachhandel Züpke GmbH v European Commission EU:T:2016:157 . . . 369 T-122/15 Landeskreditbank BadenWürttemberg—Förderbank v European Central Bank, EU:T:2017:337 . . . 433 T-153/15 Hamcho International v Council of the European Union EU:T:2016:630 . . . 313 T-180/15 Icap plc v European Commission EU:T:2017:795 . . . 601 T-210/15 Deutsche Telekom AG v European Commission EU:T:2017:224 . . . 396, 525 T-215/15 Azarov v Council EU:T:2017: 479 . . . 369 T-235/15 R Pari Pharma GmbH v European Medicines Agency EU:T:2015:587 . . . 723 T-262/15 Kiselev v Council of the European Union EU:T:2017:392 . . . 520

liii

T-344/15 France v European Commission EU:T:2017:250 . . . 397 T-600/15 Pesticide Action Network Europe (PAN Europe) v European Commission EU:T:2016:601 . . . 514 T-673/15 Guardian Europe Sàrl v European Union EU:T:2017:37 . . . 747 T-131/16 R Belgium v European Commission EU:T:2016:427 . . . 723 NUMERICAL COURT OF JUSTICE

7 & 9/54 Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority [1955–6] ECR 53 . . . 576 8/55 Fédération Charbonnière de Belgique v High Authority [1956] ECR 245 . . . 405, 576, 643 7/56 & 3–7/57 Algera v Common Assembly [1957] ECR 39 . . . 608, 612, 613, 617 9/56 Meroni v High Authority [1958] ECR 133 . . . 67, 168, 169, 171–4, 192–5, 273, 274 8/57 Groupement des Hauts Fourneaux et Acieries Belges v High Authority [1957–8] ECR 245 . . . 579 1/58 Stork v High Authority [1959] ECR 17 . . . 485 14/59 Sociétés des Fonderies de Pont-á-Mousson v High Authority [1959] ECR 215 . . . 576 16–18/59 Geitling, Mausegatt and Prasident v High Authority [1960] ECR 17 . . . 362 36, 37, 38, & 40/59 Geitling v High Authority [1960] ECR 423 . . . 485 42 and 49/59 SNUPAT v High Authority [1961] ECR 53 . . . 608, 610, 614 6/60 Humblet v Belgium EU:C:1960:48 . . . 6, 759, 764 9 & 12/60 Vloeberghs v High Authority [1961] ECR 197 . . . 747 15/60 Simon v High Authority [1961] ECR 115 . . . 618 18/60 Worms v High Authority [1962] ECR 195 . . . 737 14/61 Hoogovens v High Authority [1962] ECR 253 . . . 270, 362, 615 16/61 Acciaieriere Ferriere e Fonerie di Modena v High Authority [1962] ECR 289 . . . 579 19/61 Mannesmann AG v High Authority [1962] ECR 357 . . . 643 24/62 Germany v Commission [1963] ECR 63 . . . 370, 371 25/62 Plaumann & Co v Commission [1963] ECR 95 . . . 333, 347, 737

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

liv

Table of Cases

26/62 N V Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR . . . 282 28–30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoechst-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31 . . . 281, 282 34/62 Germany v Commission [1963] ECR 131 . . . 576 13/63 Italian Republic v Commission [1963] ECR 165 . . . 577 18/63 Wollast v EEC [1964] ECR 85 . . . 753 75/63 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177 . . . 549 106 & 107/63 Toepfer v Commission [1965] ECR 405 . . . 755 110/63 Willame v Commission [1965] ECR 649 . . . 753 111/63 Lemmerz-Werke v High Authority [1965] ECR 677 . . . 608 6/64 Costa v ENEL [1964] ECR 585 . . . 282 40/64 Sgarlata and others v Commission [1965] ECR 215 . . . 485 56 & 58/64 Consten & Grundig v Commission [1966] 299 . . . 362, 450 56/65 Société La Technique Minière (LTM) v Maschinenbau Ulm GmbH [1966] ECR 235 . . . 362 5, 7, 13–24/66 Kampffmeyer v Commission [1967] ECR 245 . . . 749, 754, 757 5/67 Beus [1968] ECR 83 . . . 371 5/68 Sayag v Leduc [1968] ECR 395 . . . 751 13/68 Salgoil v Italian Ministry for Foreign Trade [1973] ECR 453 . . . 759 26/68 Fux v Commission [1969] ECR 145 . . . 749 27/68 R Renckens v Commission [1969] ECR 274 . . . 723 4/69 Alfons Lütticke GmbH v Commission [1971] ECR 325 . . . 747 9/69 Sayag v Leduc [1969] ECR 329 . . . 750 15/69 Württembergische MilchverwertungSüdmilch-AG v Salvatore Ugliola [1970] ECR 363 . . . 547, 553 19, 20, 25, 30/69 Denise Richez-Parise v Commission [1970] ECR 325 . . . 745 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125 . . . 485, 643 22/70 Commission v Council [1971] ECR 263 . . . 266, 408 25/70 Einfuhr- und Vorrasstelle fur Getreide und Futtermittel v Koster, Berodt & Co [1970] 2 ECR 1161 . . . 114, 116

5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975 . . . 737, 738, 739 9 & 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission [1972] ECR 391 . . . 737, 752 51–54/71 International Fruit Company v Produktschap voor Groenten en Fruit (No 2) [1971] ECR 1107 . . . 548 96/71 R and V Haegeman Sprl v Commission [1972] ECR 1005 . . . 755 36/72 Meganck v Commission [1973] ECR 527 . . . 753 43/72 Merkur GmbH & Co KG v Commission [1973] ECR 1055 . . . 580, 740 57/72 Westzucker GmbH v Einfuhr-und Vorratsstelle für Zucker [1973] ECR 321 . . . 440, 445–51 71/72 Kuhl v Council [1973] ECR 705 . . . 753 76/72 Michel S v Fonds National de Reclassement Handicapés [1973] ECR 457 . . . 552 81/72 Commission v Council [1973] ECR 575 . . . 730 4/73 Nold v Commission [1974] ECR 491 . . . 485 8/73 Hauptzollamt Bremerhaven v MasseyFerguson [1973] ECR 897 . . . 421 120/73 Gebrüder Lorenz GmbH v Germany [1973] ECR 1471 . . . 362, 365 148/73 Louwage v Commission [1974] ECR 81 . . . 631 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153 . . . 547, 553 153/73 Holtz & Willemsen v Council [1974] ECR 675 . . . 581, 740 167/73 Commission v French Republic [1974] ECR 359 . . . 547 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773 . . . 552 12/74 Commission v Germany [1975] ECR 181 . . . 548 17/74 Transocean Marine Paint v Commission [1974] ECR 1063 . . . 312 26/74 Roquette Frères v Commission [1976] ECR 677 . . . 748, 754, 764 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299 . . . 558, 674 36/74 Walrave and Koch [1974] ECR 1405 . . . 559 41/74 Van Duyn v Home Office [1974] ECR 1337 . . . 282, 685 56–60/74 Kampffmeyer v Commission and Council [1976] ECR 711 . . . 748 73/74 Papiers Peints de Belgique v Commission [1975] ECR 1491 . . . 371

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases 74/74 Comptoir National Technique Agricole (CNTA) SA v Commission [1975] ECR 533 . . . 448, 450, 628, 740, 749 78/74 Deuka, Deutsche Kraft futter GmbH, B J Stolp v Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1975] ECR 421 . . . 448 99/74 Société des Grands Moulins des Antilles v Commission [1975] ECR 1531 . . . 756 2/75 Einfuhr-und Vorratsstelle für Getreide und Futtermittel v Firma C Mackprang [1975] ECR 607 . . . 624 4/75 Rewe-Zentralfinanz v Landwirtschaft skammer [1975] ECR 843 . . . 548 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279 . . . 116 32/75 Fiorini (neé Cristini) v Société Nationale des Chemins de Fer Français [1975] ECR 1085 . . . 552, 690 36/75 Rutili v Ministre de l’Intérieur [1975] ECR 1219 . . . 673 39/75 Coenen v Social Economische Raad [1975] ECR 1547 . . . 674 43/75 Defrenne v Société Anonyme Belge de Navigation Aérienne [1976] ECR 455 . . . 500, 559, 588 104/75 de Peijper [1976] ECR 613 . . . 671 105/75 Giuffrida v Council [1976] ECR 1395 . . . 469 3, 4 and 6/76 Kramer [1976] ECR 1279 . . . 408 11/76 Netherlands v Commission [1979] ECR 245 . . . 88 26/76 Metro-SB-Großmärkte GmbH & Co KG v Commission [1977] ECR 1875 . . . 318 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 . . . 759 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 . . . 759 53/76 Procureur de la République Besançon v Bouhelier [1977] ECR 197 . . . 548 54–60/76 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission [1977] ECR 645 . . . 752 63/76 Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon [1976] ECR 2057 . . . 553 64, 113/76, 167, 239/78, 27, 28, 45/79 Dumortier Frères SA v Council [1979] ECR 3091 . . . 741, 746 68/76 Commission v French Republic [1977] ECR 515 . . . 548 83, 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission [1978] ECR 1209 . . . 741, 748

lv

85/76 Hoffmann-La Roche v Commission [1979] ECR 461 . . . 312 114/76 Bela-Mühle Josef Bergman KG v Grows-Farm GmbH & Co KG [1977] ECR 1211 . . . 665 116/76 Granaria BV v Hoofdprodukschap voor Akkerbouwprodukten [1977] ECR 1247 . . . 665 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hambourg-St Annen [1977] ECR 1753 . . . 270, 545 119 and 120/76 Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof [1977] ECR 1269 . . . 665 126/76 Dietz v Commission [1977] ECR 2431 . . . 757 2/77 Hoffman’s Stärkefabriken v Hauptzollamt Bielefeld [1977] ECR 1375 . . . 581 5/77 Carlo Tedeschi v Denkavit Commerciale Srl [1977] ECR 1555 . . . 116 8/77 Sagulo, Brenca, and Bakhouche [1977] ECR 1495 . . . 761 44–51/77 Union Malt v Commission [1978] ECR 57 . . . 743 54/77 Herpels v Commission [1978] ECR 585 . . . 610, 618 78/77 Luhrs v Hauptzollamt Hamburg-Jonas [1978] ECR 169 . . . 622 79/77 Firma Kühlhaus Zentrum AG v Hauptzollamt Hamburg-Harburg [1978] ECR 611 . . . 577 103 & 145/77 Royal Scholten-Honig v Intervention Board for Agricultural Produce [1978] ECR 2037 . . . 578 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629 . . . 282, 760 116 and 124/77 Amylum NV and Tunnel Refineries Ltd v Council and Commission [1979] ECR 3497 . . . 741, 747 132/77 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061 . . . 747 139/77 Denkavit Futtermittel GmbH v Finanzamt Warendorf [1978] ECR 1317 . . . 579, 580 149/77 Defrenne v Sabena (Defrenne III) [1978] ECR 1365 . . . 485, 583, 584, 589 8/78 Milac GmbH v Hauptzollamt Freiburg [1978] ECR 1721 . . . 545 98/78 Firma A Racke v Hauptzollamt Mainz [1979] ECR 69 . . . 447, 448, 450, 451, 602 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 . . . 67 122/78 Buitoni v Forma [1979] ECR 677 . . . 665

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lvi

Table of Cases

127/78 Spitta & Co v Hauptzollamt Frankfurt/ Main-Ost [1979] ECR 171 . . . 622 138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713 . . . 645 207/78 Ministère Public v Even and ONPTS [1979] ECR 2019 . . . 553 209–215, 218/78 Van Landewyck SARL v Commission [1980] ECR 3125 . . . 359 230/78 Eridania Zuccherifici Nazionali v Ministre de l’Agriculture et des Forêts [1979] ECR 2749 . . . 577, 579 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955 . . . 749, 750 240/78 Atalanta Amsterdam BV v Produktschap voor Vee en Vlees [1979] ECR 2137 . . . 665 4/79 Société Coopérative ‘Providence Agricole de la Champagne’ v Office National Interprofessionnel des Céréales (ONIC) [1980] ECR 2823 . . . 734, 735 34/79 R v Henn and Darby [1979] ECR 3795 . . . 685 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 . . . 485, 660 49/79 Pool v Council [1980] ECR 569 . . . 580 61/79 Denkavit Italiana [1980] ECR 1205 . . . 762 66, 127 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237 . . . 762 104/79 Pasquale Foglia v Mariella Novella [1980] ECR 745 . . . 286 133/79 Sucrimex SA and Westzucker GmbH v Commission [1980] ECR 1299 . . . 756 138/79 Roquette Frères v Council [1980] ECR 3333 . . . 453 145/79 SA Roquette Frères v France [1980] ECR 2917 . . . 734 149/79 Commission v Belgium [1980] ECR 3881 . . . 554, 555 543/79 Birke v Commission [1981] ECR 2669 . . . 737 730/79 Philip Morris Holland BV v Commission [1980] ECR 2671 . . . 440, 444, 449, 451 789 and 790/79 Calpak SpA and Societa Emiliana Lavorazione Fruita SpA v Commission [1980] ECR 1949 . . . 333 46/80 Vinal SpA v Orbat SpA [1981] ECR 77 . . . 286 53/80 Officier van Justitie v Koniklijke Kassfabriek Eyssen BV [1981] ECR 409 . . . 671 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 1191 . . . 282, 734 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911 . . . 587 98/80 Romano v Institut national d’assurance maladie-invalidité EU:C:1981:104 . . . 169–71

100–103/80 Musique Diffusion Française v Commission [1983] ECR 1825 . . . 353, 359 113/80 Commission v Ireland [1981] ECR 1625 . . . 548 158/80 Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel [1981] ECR 1805 . . . 759 169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931 . . . 601 197, 200, 243, 245, 247/80 Ludwigshafener Walzmuhle Erling KG v Council and Commission [1981] ECR 3211 . . . 453, 576 212–217/80 Amministrazione delle Finanze dello Stato v Srl Meridionale Industria Salumi [1981] ECR 2735 . . . 603 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045 . . . 286 14/81 Alpha Steel v Commission [1982] ECR 749 . . . 609, 617 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057 . . . 743 52/81 W Faust v Commission [1982] ECR 3745 . . . 625 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035 . . . 549, 550 54/81 Firma Wilhelm Fromme v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1449 . . . 778 60/81 International Business Machines Corporation v Commission [1981] ECR 2639 . . . 267 61/81 Commission v UK [1982] ECR 2601 . . . 585 65/81 Reina v Landeskreditbank BadenWürttemberg [1982] ECR 33 . . . 553 106/81 Julius Kind AG v EEC [1982] ECR 2885 . . . 579, 740 115 and 116/81 Adoui and Cornuaille v Belgian State [1982] ECR 1665 . . . 685 124/81 Commission v UK [1983] ECR 203 . . . 671 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045 . . . 363 217/81 Compagnie Interagra SA v Commission [1982] ECR 2233 . . . 756 245/81 Edeka v Federal Republic of Germany [1982] ECR 2745 . . . 625 249/81 Commission v Ireland [1982] ECR 4005 . . . 548 261/81 Walter Rau Lebensmittelwerke v De Smedt PvbA [1982] ECR 3961 . . . 286, 671 282/81 Ragusa v Commission [1983] ECR 1245 . . . 631 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415 . . . 281, 282

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases 303 and 312/81 Klockner v Commission [1983] ECR 1507 . . . 639 8/82 KG in der Firma Hans-Otto Wagner GmbH Agrarhandel v Bundesanstalt für Landwirtschaftliche Marktordnung [1983] ECR 371 . . . 576, 577, 579 40/82 Commission v UK [1982] ECR 2793 . . . 684 43, 63/82 VBVB and VBBB v Commission [1985] ECR 19 . . . 355 75 & 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509 . . . 583, 585 84/82 Germany v Commission [1984] ECR 145 . . . 365 144/82 Detti v ECJ [1983] ECR 2439 . . . 619 159/82 Verli-Wallace v Commission [1983] ECR 2711 . . . 608 165/82 Commission v UK [1983] ECR 3431 . . . 589 174/82 Officier van Justitie v Sandoz BV [1983] ECR 2445 . . . 671, 684, 696 188/82 Thyssen AG v Commission [1983] ECR 3721 . . . 639 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 . . . 760, 777 205–215/82 Deutsche Milch-Kontor GmbH v Germany EU:C:1983:233; [1983] ECR 2633 . . . 5, 779 224/82 Meiko-Konservenfabrik v Federal Republic of Germany [1983] ECR 2539 . . . 603 240–242, 261–262, 268–269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831 . . . 381 264/82 Timex Corporation v Council and Commission [1985] ECR 849 . . . 731 281/82 Unifrex v Commission and Council [1984] ECR 1969 . . . 580, 756 286/82 & 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 . . . 559 296 & 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809 . . . 370 3/83 Abrias v Commission [1985] ECR 1995 . . . 623 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 . . . 761 59/83 SA Biovilac NV v EEC [1984] ECR 4057 . . . 441, 747, 752 63/83 R v Kent Kirk [1984] ECR 2689 . . . 603 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727 . . . 548, 671 94/83 Albert Heijin BV [1984] ECR 3263 . . . 671 97/83 Melkunie [1984] ECR 2367 . . . 684

lvii

112/83 Société de Produits de Maïs v Administration des Douanes [1985] ECR 719 . . . 734 127/83 Heineken Brouwerijen BV v Inspecteur der Vennootschapsbelasting [1984] ECR 3435 . . . 365 145/83 Adams v Commission [1985] ECR 3539 . . . 747 207/83 Commission v United Kingdom [1985] ECR 1201 . . . 548 283/83 Firma A Racke v Hauptzollamt Mainz [1984] ECR 3791 . . . 576 293/83 Gravier v City of Liège [1985] ECR 593 . . . 562, 563 294/83 Parti Ecologiste-‘Les Verts’ v European Parliament [1986] ECR 1339 . . . 65, 175, 176 21/84 Commission v France [1985] ECR 1356 . . . 548 41/84 Pinna v Caisse d’allocations familiales de Savoie [1986] ECR 1 . . . 734, 735 42/84 Remia BV and Nutricia BV v Commission [1985] ECR 2545 . . . 381, 450 67/84 Sideradria SpA v Commission [1985] ECR 3983 . . . 624 94/84 Office national de l’Emploi v Joszef Deak [1985] ECR 1873 . . . 553 141/84 Henri de Compte v European Parliament [1985] ECR 1951 . . . 358 142 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487 . . . 450 169/84 Compagnie Française de l’Azote (COFAZ) SA v Commission [1986] ECR 391 . . . 318 170/84 Bilka-Kaufh aus GmbH v Karin Weber von Hartz [1986] ECR 1607 . . . 587, 588, 678 175/84 Krohn & Co Import-Export GmbH & Co KG v Commission [1986] ECR 753 . . . 756 178/84 Commission v Germany [1987] ECR 1227 . . . 671, 684 179/84 Bozetti v Invernizzi [1985] ECR 2301 . . . 759 181/84 R v Intervention Board, ex p ED & F Man (Sugar) Ltd [1985] ECR 2889 . . . 665 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 . . . 486, 589, 676, 762 228/84 Pauvert v Court of Auditors [1985] ECR 1973 . . . 639 247/84 Criminal Proceedings against Leon Motte [1985] ECR 3887 . . . 696 255/84 Nachi Fujikoshi Corporation v Council [1987] ECR 1861 . . . 650 304/84 Ministère Public v Muller [1986] ECR 1511 . . . 671 307/84 Commission v France [1986] ECR 1725 . . . 556

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lviii

Table of Cases

15/85 Consorzio Cooperative d’Abruzzo v Commission [1987] ECR 1005 . . . 615 21/85 Maas & Co NV v Bundesanstalt für landwirtschaftliche Marktordnung [1986] ECR 3537 . . . 665 54/85 Ministère Public against Xavier Mirepoix [1986] ECR 1067 . . . 696 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121 . . . 549, 555 89, 104, 114, 116, 117, 125–9/85 Ahlström Osakeyhitiö v Commission [1993] ECR I-1307 . . . 474 121/85 Conegate v Customs and Excise Commissioners [1986] ECR 1007 . . . 685 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741 . . . 549 154/85 Commission v Italy [1987] ECR 2717 . . . 548 225/85 Commission v Italy [1987] ECR 2625 . . . 555 237/85 Rummler [1986] ECR 2101 . . . 585 265/85 Van den Bergh en Jurgens and Van Dijk Food Products v Commission [1987] ECR 1155 . . . 619, 622, 752 281, 283–285, 287/85 Germany v Commission [1987] ECR 3203 . . . 405 310/85 Deufil Gmbh & Co KG v Commission [1987] ECR 901 . . . 449 314/85 Firma Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199 . . . 282, 305, 336, 725 316/85 Centre public d’aide sociale de Courcelles v Lebon [1987] ECR 2811 . . . 553 344/85 SpA Ferriere San Carlo v Commission [1987] ECR 4435 . . . 632 424–425/85 Frico v VIV [1987] ECR 2755 . . . 619 39/86 Lair [1988] ECR 3161 . . . 563, 570 45/86 Commission v Council (Tariff Preferences) [1987] ECR 1493 . . . 371, 421, 422 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677 . . . 752 97, 99, 193 and 215/86 Asteris AE and Hellenic Republic v Commission [1988] ECR 2181 . . . 732 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 . . . 627, 628, 637 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205 . . . 563, 570 222/86 UNECTEF v Heylens [1987] ECR 4097 . . . 762 318/86 Commission v France [1988] ECR 3559 . . . 586, 589 45/87 Commission v Ireland [1988] ECR 4929 . . . 548 51/87 Commission v Council (Generalized Tariff Preferences) [1988] ECR 5459 . . . 729

62 & 72/87 Executif Régional Wallon and Glaverbel SA v Commission [1988] ECR 1573 . . . 449 106–120/87 Asteris v Greece and EEC [1988] ECR 5515 . . . 754 133 & 150/87 Nashua Corporation v Commission and Council [1990] ECR I-719 . . . 267 142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959 . . . 361, 666 165/87 Commission v Council [1988] ECR 5545 . . . 421 186/87 Cowan v Le Trésor Public [1989] ECR 195 . . . 559 193–4/87 Maurissen v Commission [1989] ECR 1045 . . . 65 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159 . . . 438, 549 247/87 Star Fruit v Commission [1989] ECR I-291 . . . 815 259/87 Greece v Commission [1990] ECR I-2845 . . . 753 265/87 Schräder HS Kraft futter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237 . . . 521, 645, 659 301/87 France v Commission [1990] ECR I-307 . . . 352 302/87 European Parliament v Council [1988] ECR 5615 . . . 272 308/87 Grifoni v EAEC [1994] ECR I-341 . . . 748 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621 . . . 550 379/87 Groener v Minister for Education [1989] ECR 3967 . . . 548 5/88 Wachauf v Germany [1989] ECR 2609 . . . 486, 517 16/88 Commission v Council [1989] ECR 3457 . . . 114, 117 20/88 Roquette Frères v Commission [1989] ECR 1553 . . . 756 21/88 Du Pont de Nemours Italiana SpA v Unita Sanitaria Locale No 2 Di Carrara [1990] ECR I-889 . . . 548 33/88 Allué and Coonan v Università degli Studi di Venezia [1989] ECR 1591 . . . 555 49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187 . . . 149, 313, 350, 525 68/88 Commission v Greece [1989] ECR 2965 . . . 682, 761 70/88 European Parliament v Council [1990] ECR I-2041 . . . 272 109/88 Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199 . . . 585, 586

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases 119/88 Aerpo and Others v Commission [1990] ECR I-2189 . . . 739, 740 143/88 & 92/89 Zuckerfabrik Suderdithmaschen AG v Hauptzollamt Itzehoe [1991] ECR I-415 . . . 282, 725 145/88 Torfaen BC v B & Q plc [1989] ECR 3851 . . . 691, 693 150/88 Eau de Cologne and Parfumerie-Fabrik Glockengasse No 4711 KG v Provide Srl [1989] ECR 3891 . . . 286 152/88 Sofrimport Sàrl v Commission [1990] ECR I-2477 . . . 628, 629 171/88 Rinner-Kühn v FWW SpezialGebäudereinigung GmbH [1989] ECR 2743 . . . 587, 679 177/88 Dekker v Stichting voor Jong Volwassenen (VJV) Plus [1990] I-ECR 3941 . . . 764 C-200/88 Commission v Greece [1990] ECR I-4299 . . . 815 267–285/88 Wuidart v Laiterie coopérative eupenoise société coopérative [1990] ECR I-435 . . . 580 306/88, 304/90 and 169/91 Stoke-on-Trent CC v B & Q plc [1992] ECR I-6457 . . . 692 331/88 R v Minister for Agriculture, Fisheries and Food, ex parte Fedesa [1990] ECR 4023 . . . 604, 645, 654, 665 350/88 Delacre v Commission [1990] ECR I-395 . . . 622, 625 363–4/88 Finsider v Commission [1992] ECR I-359 . . . 747 C-5/89 Commission v Germany [1990] ECR I-3437 . . . 779 C-8/89 Zardi v Consorzio Agrario Provinciale di Ferrara [1990] ECR I-2515 . . . 646 C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 2591 . . . 587, 679 C-80/89 Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe [1990] ECR I-2659 . . . 622, 623 87/89 Société nationale interprofessionelle de la tomate (Sonito) v Commission [1990] ECR I-198 . . . 815 C-104/89 and 37/90 Mulder and Heinemann v Council and Commission [1992] ECR I-3061 . . . 741, 748, 749 C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR 4135 . . . 690 C-107/89 R Caturla-Poch v Parliament [1989] ECR 1357 . . . 724 C-177 and 181/99 Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire [2000] ECR I-7013 . . . 653

lix

C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR 297 . . . 587, 679 C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539 . . . 629, 637, 638 C-213/89 R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433 . . . 725, 760 C-221/89 R v Secretary of State for Transport, ex p Factortame Ltd [1991] ECR I-3905 . . . 787 C-248/89 Cargill BV v Commission [1991] ECR I-2987 . . . 617 C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925 . . . 486, 531 C-291/89 Interhotel v Commission [1991] ECR I-2257 . . . 313, 350 C-292/89 R v Immigration Appeal Tribunal, ex p Antonissen [1991] ECR I-745 . . . 549, 550 C-309/89 Codorniu v Council [1994] ECR I-1853 . . . 334 C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027 . . . 549 C-358/89 Extramet Industrie SA v Council [1991] ECR I-2501 . . . 334 C-365/89 Cargill BV v Produktschap voor Margarine, Vetten en Olien [1991] ECR I-3045 . . . 617 C-367/89 Criminal Proceedings against Richardt and Les Accessoires Scientifiques SNC [1991] ECR I-4621 . . . 690 C-370/89 SGEEM and Etroy v EIB [1992] ECR I-6211 . . . 736 C-377/89 Cotter and McDermott v Minister for Social Welfare and Attorney General [1991] ECR I-1155 . . . 765 C-6/90 & C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 . . . 218, 274, 541, 782, 783, 792 C-16/90 Nolle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163 . . . 362 C-41/90 Höfner and Elser v Macrotron GmbH [1991] ECR I-1979 . . . 582 C-48 & 66/90 Netherlands v Commission [1992] ECR I-565 . . . 352 C-62/90 Commission v Germany [1992] ECR I-2575 . . . 671 C-87–89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757 . . . 762 C-106 and 317/90 and 129/91 Emerald Meats Ltd v Commission [1993] ECR I-209 . . . 331 C-159/90 SPUC v Grogan [1991] ECR I-4685 . . . 521 C-179/90 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889 . . . 582

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lx

Table of Cases

C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269 . . . 764 C-213/90 ASTI v Chambre des employés privés [1991] ECR I-350 . . . 555 C-258 and 259/90 Pesquerias de Bermeo SA and Naviera Laida SA v Commission [1992] ECR I-2901 . . . 743 C-269/90 Hauptzollamt München-Mitte v Technische Universitat München [1991] ECR I-5469 . . . 314, 363 C-282/90 Industrie-en Handelsonderneming Vreugdenhil BV v Commission [1992] ECR I-1937 . . . 741 C-295/90 European Parliament v Council [1992] ECR I-4193 . . . 421, 728 C-313/90 CIRFS v Commission [1993] ECR I-1125 . . . 619, 631, 639 C-320–322/90 Telemarsicabruzzo SpA v Circostel, Ministero delle Poste e Telecommunicazioni and Ministerio della Difesa [1993] ECR I-393 . . . 286 C-354/90 Fédération Nationale du Commerce Exterieur des Produits Alimentaires v France [1991] ECR I-5505 . . . 779 C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589 . . . 587, 679 C-4/91 Bleis v Ministère de l’Education Nationale [1991] ECR I-5627 . . . 555 C-31–41/91 SpA Alois Lageder v Amministrazione delle Finanze dello Stato [1993] ECR I-1761 . . . 605, 640 C-83/91 Wienand Meilicke v ADV/ORGA FA Meyer AG [1992] ECR I-4871 . . . 286 C-97/91 Borelli SpA v Commission [1992] ECR I-6313 . . . 320, 332 C-111/91 Commission v Luxembourg [1993] ECR I-817 . . . 553 C-121–122/91 CT Control (Rotterdam) BV and JCT Benelux BV v Commission [1993] ECR I-3873 . . . 732 C-146/91 KYDEP v Council and Commission [1994] ECR I-4199 . . . 743 C-198/91 William Cook plc v Commission [1993] ECR I-2486 . . . 365 C-212/91 Angelopharm GmbH v Freie Hansestadt Hamburg [1994] ECR I-171 . . . 454, 702 C-213/91 R Abertal and others v Commission [1991] ECR I-5109 . . . 724 C-220/91 P Stahlwerke Peine-Salzgitter AG v Commission [1993] ECR I-2393 . . . 741 C-267 & 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097 . . . 438, 692 C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority (No 2) [1993] ECR I-4367 . . . 585, 763, 777

C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475 . . . 767 C-13–16/92 Driessen en Zonen v Minister van Verkeer en Waterstaat [1993] ECR I-4751 . . . 623 C-25/92 R Miethke v European Parliament [1993] ECR I-473 . . . 267 C-34/92 GruSa Fleisch GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1993] ECR I-4147 . . . 602 C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235 . . . 355, 729 C-92/92 Phil Collins v Imtrat Handelsgesellschaft mbH [1993] ECR I-5145 . . . 557, 561 C-127/92 Enderby v Frenchay Health Authority and the Secretary of State for Health [1993] ECR 5535 . . . 587, 588 C-135/92 Fiskano v Commission [1994] ECR I-2885 . . . 314, 352 C-137/92 P Commission v BASF AG [1994] ECR I-2555 . . . 267, 268 C-157/92 Banchero [1993] ECR I-1085 . . . 286 C-228/92 Roquette Frères SA v Hauptzollamt Geldern [1994] ECR I-1445 . . . 729, 734 C-240/92 Portuguese Republic v Commission [2004] ECR I-10717 . . . 267 C-350/92 Spain v Council [1995] ECR I-1985 . . . 422 C-383/92 Commission v UK [1994] ECR I-2479 . . . 682, 761 C-386/92 Monin Automobiles v France [1993] ECR I-2049 . . . 286 C-387/92 Banco de Credito Industrial SA (Banco Exterior de España SA) v Ayuntamiento de Valencia [1994] ECR I-877 . . . 441 C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483 . . . 768 C-419/92 Scholz v Universitaria di Cagliari [1994] ECR I-505 . . . 547 C-17/93 Openbaar Ministerie v Van der Veldt [1994] ECR I-3537 . . . 670 C-18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783 . . . 286 C-39/93 P Syndicat Français de l’Express International (SFEI) v Commission [1994] ECR I-2681 . . . 267 C-45/93 Commission v Spain [1994] ECR I-911 . . . 559 C-46 and 48/93 Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029 . . . 690, 741, 783–5, 787, 792

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-62/93 BP Supergas v Greece [1995] ECR I-1883 . . . 769 C-63/93 Duff v Minister for Agriculture and Food Ireland and the Attorney General [1996] ECR I-569 . . . 625 C-133, 300 & 362/93 Crispoltoni v Fattoria Autonoma Tabachi and Donatab [1994] ECR I-4863 . . . 625, 646 C-143/93 Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431 . . . 601 C-156/93 European Parliament v Commission [1995] ECR I-2019 . . . 119, 133 C-278/93 Freers and Speckmann v Deutsche Bundespost [1996] ECR I-1165 . . . 587, 679 C-280/93 Germany v Council [1994] ECR I-4973 . . . 475, 476, 521, 581, 659 C-281/93 Angonese v Cassa di Risparmio di Bologna [2000] ECR I-4134 . . . 500 C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865 . . . 354 C-312/93 Peterbroeck, Van Campenhout & Cie v Belgian State [1995] ECR I-4599 . . . 766, 771 C-358 and 416/93 Criminal Proceedings against Bordessa, Mellado and Maestre [1995] ECR I-361 . . . 675 C-360/93 European Parliament v Council (Government Procurement) [1996] ECR I-1195 . . . 728 C-384/93 Alpine Investments BV v Minister van Financien [1995] ECR I-1141 . . . 686 C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631 . . . 690, 786, 789 C-394/93 Alonso-Pérez v Bundesanstalt für Arbeit [1995] ECR I-4101 . . . 768 C-400/93 Royal Copenhagen, Specialarbejderforbundet i Danmark v Dansk Industri [1995] ECR I-1275 . . . 585 C-415/93 Union Royale Belge des Sociétés de Football Association and others v Bosman [1995] ECR I-4921 . . . 559 C-417/93 European Parliament v Council [1995] ECR I-1185 . . . 119 C-426/93 Germany v Commission [1995] ECR I-3723 . . . 654 C-428/93 Monin Automobiles-Maison du Deux-Roues [1994] ECR I-1707 . . . 286 C-430–431/93 Van Schijndel & Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705 . . . 766, 771 C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051 . . . 590, 598 C-457/93 Kuratorium für Dialyse und Nierentransplantation v Lewark [1996] ECR I-243 . . . 587, 679

lxi

C-458/93 Criminal Proceedings against Saddik [1995] ECR I-511 . . . 286 C-465/93 Atlanta Fruchthandelgesellschaft mbH v Bundesamt fur Ernahrung und Forstwirtschaft [1995] ECR I-3761 . . . 725 C-473/93 Commission v Luxembourg [1996] ECR I-3207 . . . 554–7 C-480/93 Zunis Holding SA, Finan Srl and Massinvest SA v Commission [1996] ECR I-1 . . . 267 C-2/94 Denkavit International BV v Kamer van Koophandel en Fabrieken voor MiddenGelderland [1996] ECR I-2827 . . . 769 C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 . . . 785, 790 C-7/94 Landesamt für Ausbildungsförderung Nordrhein-Westfalen v Lubor Gaal [1996] ECR I-1031 . . . 552 C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 . . . 583, 585, 593 C-21/94 European Parliament v Council (Road Taxes) [1995] ECR I-1827 . . . 728, 732 C-22/94 Irish Farmers Association v Minister for Agriculture, Food and Forestry (Ireland) and the Attorney General [1997] ECR I-1809 . . . 625 C-39/94 Syndicat Français de l’Express International (SFEI) v La Poste [1996] ECR I-3547 . . . 441 C-56/94 SCAC v Associazione dei Produttori Ortofrutticoli [1995] ECR I-1769 . . . 581 C-58/94 Netherlands v Council [1996] ECR I-2169 . . . 393, 630 C-68/94 and 30/95 France, SCPA and EMC v Commission [1998] ECR I-1375 . . . 470 C-70/94 Werner [1995] ECR I-3189 . . . 690 C-83/94 Leifer [1995] ECR I-3231 . . . 690 C-84/94 United Kingdom v Council [1996] ECR I-5755 . . . 371, 404, 432 C-90/94 Haahr Petroleum v Havn [1997] ECR I-4085 . . . 768 C-104/94 Cereol Italia v Azienda Agricola Castello [1995] ECR I-2983 . . . 665 C-122/94 Commission v Council [1996] ECR I-881 . . . 371 C-129/94 Criminal Proceedings against Bernaldez [1996] ECR I-1829 . . . 287 C-137/94 R v Secretary of State for Health, ex p Richardson [1995] ECR I-3407 . . . 762 C-150/94 UK v Council [1998] ECR I-7235 . . . 475 C-173/94 Commission v Belgium [1996] ECR I-3265 . . . 556 C-178–179, 188–190/94 Dillenkofer and others v Federal Republic of Germany [1996] ECR I-4845 . . . 789

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxii

Table of Cases

C-193/94 Criminal Proceedings against Skanavi and Chryssanthakopoulos [1996] ECR I-929 . . . 674 C-197 & 252/94 Société Bautiaa v Directeur des Services Fiscaux des Landes [1996] ECR I-505 . . . 762 C-199 and 200/94 Pesqueria Vasco-Montanesa SA (Pevasa) and Compania Internacional de Pescay Derivados SA (Inpesca) v Commission [1995] ECR I-3709 . . . 737 C-205/94 Binder GmbH v Hauptzollamt Stuttgart-West [1996] ECR I-2871 . . . 371 C-233/94 Germany v European Parliament and Council [1997] ECR I-2405 . . . 404, 431 C-237/94 O’Flynn v Adjudication Officer [1996] ECR I-2617 . . . 547, 553 C-271/94 European Parliament v Council (Re the Edicom Decision) [1996] ECR I-1689 . . . 422 C-278/94 Commission v Belgium [1996] ECR I-4307 . . . 547 C-283, 291 and 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063 . . . 789 C-286/94, 340 and 401/95, and 47/96 Garage Molenheide BVBA v Belgische Staat [1997] ECR I-7281 . . . 680 C-290/94 Commission v Greece [1996] ECR I-3285 . . . 556 C-295/94 Hupeden & Co KG v Hauptzollamt Hamburg-Jonas [1996] ECR I-3375 . . . 665 C-296/94 Pietsch v Hauptzollamt HamburgWaltershof [1996] ECR I-3409 . . . 665 C-311/94 Ijssel-Vliet Combinatie BV v Minister van Economische Zaken [1996] ECR I-5023 . . . 631 C-315/94 De Vos v Bielefeld [1996] ECR I-1417 . . . 553 C-320, 328, 329, 337, 338 & 339/94 Reti Televisive Italiane SpA (RTI) v Ministero delle Poste e Telecommunicazione [1996] ECR I-6471 . . . 286 C-3/95 Reiseburo Broede v Gerd Sandker [1996] ECR I-6511 . . . 686 C-10/95 P Asociasión Española de Empresas de la Carne (Asocarne) v Council [1995] ECR I-4149 . . . 318, 333, 335 C-24/95 Land Rheinland-Pfalz v Alcan Deutschland GmbH [1997] ECR I-1591 . . . 779 C-27/95 Woodcock District Council v Bakers of Nailsea [1997] ECR I-1847 . . . 453 C-29/95 Pastoors and Trans-Cap GmbH v Belgian State [1997] ECR I-285 . . . 680 C-32/95 P Commission v Lisrestal [1996] ECR I-5373 . . . 312, 314, 350

C-41/95 European Parliament v Council [1995] ECR I-4411 . . . 730 C-43/95 Data Delecta Aktiebolag and Forsberg v MSL Dynamics Ltd [1996] ECR I-4661 . . . 560 C-54/95 Germany v Commission [1999] ECR I-35 . . . 89 C-57/95 France v Commission (Re Pension Funds Communication) [1997] ECR I-1627 . . . 266 C-66/95 R v Secretary of State for Social Security, ex p Eunice Sutton [1997] ECR I-2163 . . . 766, 777 C-68/95 T Port GmbH & Co KG v Bundesanstalt fur Landwirtschaft und Ernahrung [1996] ECR I-6065 . . . 510 C-72/95 Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 . . . 772 C-74/95 and 129/95 Criminal Proceedings against X [1996] ECR I-6609 . . . 486 C-85/95 Reisdorf v Finanzamt Koln-West [1996] ECR I-6257 . . . 287 C-90/95 P Henri de Compte v EP [1997] ECR I-1999 . . . 608, 609, 616, 618 C-94–95/95 Bonifaci and Berto v Istituto Nazionale della Previdenza Sociale (IPNS) [1997] ECR I-3969 . . . 792 C-114–115/95 Texaco A/S v Havn [1997] ECR I-4263 . . . 768 C-124/95 R, ex p Centro-Com v HM Treasury and Bank of England [1997] ECR I-81 . . . 671 C-127/95 Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food [1998] ECR I-1531 . . . 785, 790, 792 C-134/95 Unita Socio-Sanitaria Locale No 47 di Biella (USSL) v Istituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro (INAIL) [1997] ECR I-195 . . . 286 C-144/95 Maurin [1996] ECR I-2909 . . . 486 C-149/95 P(R) Commission v Atlantic Container Line AB [1995] ECR I-2165 . . . 723 C-150/95 Portugal v Commission [1997] ECR I-5863 . . . 581 C-169/95 Spain v Commission [1997] ECR I-135 . . . 666 C-180/95 Draehmpaehl v Urania Immobilienservice [1997] ECR I-2195 . . . 585 C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315 . . . 629, 638, 647, 655 C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783 . . . 768 C-192/95 Comateb v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165 . . . 760, 777, 778

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-243/95 Hill and Stapleton v Revenue Commissioners [1998] ECR I-3739 . . . 587 C-257/95 Bresle v Prefet de la Région Auvergne and Prefet du Puy-de-Dôme [1996] ECR I-233 . . . 286 C-259/95 European Parliament v Council [1997] ECR I-5303 . . . 119 C-261/95 Palmisani v INPS [1997] ECR I-4025 . . . 792 C-265/95 Commission v France [1997] ECR I-6959 . . . 517 C-282/95 P Guerin Automobiles v Commission [1997] ECR I-503 . . . 267 C-285/95 Kol v Land Berlin [1997] ECR I-3069 . . . 624 C-287–288/95 P Commission v Solvay SA [2000] ECR I-2391 . . . 268 C-299/95 Kremzow v Austria [1997] ECR I-2629 . . . 486, 505 C-323/95 Hayes and Hayes v Kronenberger GmbH [1997] ECR I-1711 . . . 560 C-334/95 Kruger GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 . . . 726 C-358/95 Morellato v Unita Sanitaria Locale (USL) n 11 di Pordenone [1997] ECR I-1431 . . . 670 C-359 & 379/95 P Commission and France v Ladbroke Racing Ltd [1999] ECR I-6265 . . . 364 C-366/95 Landbrugsministeriet-EF-Direktoratet v Steff -Houlberg Export [1998] ECR I-2661 . . . 779 C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719 . . . 313, 365, 370 C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-368 . . . 486, 521, 531, 692, 693 C-369/95 Somalfruit SpA and Camar SpA v Ministero delle Finanze and Ministero del Commercio con l’Estero [1997] ECR I-6619 . . . 465 C-373/95 Maso and Gazzetta v INPS [1997] ECR I-4051 . . . 792 C-390/95 P Antillean Rice Mills NV and others v Commission [1999] ECR I-769 . . . 463, 738, 739, 744, 745 C-392/95 European Parliament v Council [1997] ECR I-3213 . . . 729 C-399/95 R Germany v Commission [1996] ECR I-2441 . . . 723 C-409/95 Hellmut Marschall v Land Nordrhein Westfalen [1997] ECR I-6363 . . . 591 C-2/96 Criminal Proceedings against Sunino and Data [1996] ECR I-1543 . . . 286

lxiii

C-4/96 Northern Ireland Fish Producers’ Association (NIFPO) and Northern Ireland Fishermen’s Federation v Department of Agriculture for Northern Ireland [1998] ECR I-681 . . . 453, 646 C-15/96 Kalliope Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47 . . . 547 C-22/96 European Parliament v Council (Telematic Networks) [1998] ECR I-3231 . . . 728 C-48/96 P Windpark Groothusen GmbH & Co Betriebs KG v Commission [1998] ECR I-2873 . . . 312, 468 C-50/96 Deutsche Telekom v Schröder [2000] ECR I-743 . . . 762 C-55/96 Job Centre coop arl [1997] ECR I-7119 . . . 582 C-64 & 65/96 Land Nordrhein-Westfalen v Uecker and Jacquet v Land NordrheinWestfalen [1997] ECR I-3171 . . . 565 C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751 . . . 260, 582 C-85/96 Maria Martinez Sala v Freistaat Bayern [1998] ECR I-2691 . . . 565, 566 C-89/96 Portuguese Republic v Commission [1999] ECR I-8377 . . . 728 C-108/96 Criminal Proceedings against Mac Quen [2001] ECR I-837 . . . 687 C-125 & 152/96 Boehringer Ingelheim Vetmedica GmbH and CH Boehringer Sohn v Council and Commission [1999] ECR II-3427 . . . 647, 655 C-149/96 Portugal v Council [1999] ECR I-8395 . . . 739 C-157/96 R v Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex p National Farmers’ Union [1998] ECR I-2211 . . . 696 C-159/96 Portuguese Republic v Commission [1998] ECR I-7379 . . . 267 C-161/96 Südzucker Mannheim/Ochsenfurt AG v Hauptzollamt Mannheim [1998] ECR I-281 . . . 665 C-180/96 United Kingdom v Commission [1998] ECR I-2265 . . . 267, 441, 695, 696 C-185/96 Commission v Hellenic Republic [1998] ECR I-6601 . . . 547, 553 C-187/96 Commission v Hellenic Republic [1998] ECR I-1095 . . . 547 C-200/96 Musik Metronome GmbH v Music Point Hokamp GmbH [1998] ECR I-1953 . . . 521, 659 C-229/96 Aprile v Amminstrazione delle Finanze dello Stato [1998] ECR I-7141 . . . 768, 774

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxiv

Table of Cases

C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951 . . . 768, 774 C-246/96 Magorrian and Cunningham v Eastern Health and Social Services Board [1997] ECR I-7153 . . . 767 C-249/96 Grant v South-West Trains Ltd [1998] ECR I-621 . . . 594 C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997 . . . 774 C-268/96 R SCK and FNK v Commission [1996] ECR I-4971 . . . 723 C-274/96 Bickel & Franz [1998] ECR I-7637 . . . 565 C-291/96 Criminal Proceedings against Grado and Bashir [1997] ECR I-5531 . . . 505 C-298/96 Oelmühle Hamburg v Bundesanstalt für Landwirtschaft und Ernährung [1998] ECR I-4767 . . . 779 C-301/96 Germany v Commission [2003] ECR I-9919 . . . 370 C-309/96 Annibaldi v Sindaco del Commune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493 . . . 486, 505 C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255 . . . 786, 789 C-326/96 Levez v Jennings Ltd [1998] ECR I-7835 . . . 769, 775 C-343/96 Dilexport v Amministrazione delle Finanze dello Stato [1999] ECR I-579 . . . 774, 778 C-372/96 Pontillo v Donatab [1998] ECR I-5091 . . . 625 C-415/96 Spain v Commission [1998] ECR I-6993 . . . 729 C-1159/96 Portugal v Commission [1998] ECR I-7379 . . . 729 C-35/97 Commission v Belgium [1998] ECR I-5325 . . . 547 C-75/97 Belgium v Commission [1999] ECR I-3671 . . . 442 C-77/97 Österreichische Unilever GmbH v SmithKline Beecham Markenartikel GmbH [1999] ECR I-431 . . . 682 C-89/97 P(R) Moccia Irme v Commission [1997] ECR I-2327 . . . 724 C-104/97 P Atlanta AG v Commission [1999] ECR I-6983 . . . 149, 316, 625 C-107/97 Criminal Proceedings against Max Rombi [2000] ECR I-3367 . . . 605 C-110/97 Netherlands v Council [2001] ECR I-8763 . . . 625 C-120/97 Upjohn v the Licensing Authority [1999] ECR I-223 . . . 762, 782 C-124/97 Laara, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Finland [1999] ECR I-6067 . . . 522, 686

C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055 . . . 772, 774 C-140/97 Rechberger v Austria [1999] ECR I-3499 . . . 789 C-147–148/97 Deutsche Post AG v Gesellschaft fur Zahlungssyteme mbH and Citicorp Kartenservice GmbH [2000] ECR I-825 . . . 582 C-151 & 157/97 P(I) National Power plc and PowerGen plc v British Coal Corporation and Commission [1997] ECR I-3491 . . . 335 C-158/97 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen [1999] ECR I-1875 . . . 591 C-167/97 Seymour-Smith and Perez [1999] ECR I-623 . . . 587 C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199 . . . 762 C-209/97 Commission v Council [1999] ECR I-8067 . . . 421 C-235/97 France v Commission [1998] ECR I-7555 . . . 89 C-253/97 Italy v Commission [1999] ECR I-7529 . . . 89 C-273/97 Sirdar v Army Board [1999] ECR I-7403 . . . 589, 676 C-289/97 Eridania SpA v Azienda Agricola San Luca di Rumagnoli Viannj [2000] ECR I-5409 . . . 463 C-292/97 Kjell Karlsson [2000] ECR I-2737 . . . 517, 518 C-293/97 R v Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex p Standley [1999] ECR I-2603 . . . 521, 659 C-301/97 Netherlands v Council [2001] ECR I-8853 . . . 468, 475 C-302/97 Konle v Austria [1999] ECR I-3099 . . . 791 C-310/97 P Commission v AssiDomän Kraft Products AB [1999] ECR I-5363 . . . 733, 737 C-316/97 P European Parliament v Gaspari [1998] ECR I-7597 . . . 370 C-359/97 Commission v UK [2000] ECR I-6355 . . . 762 C-372/97 Italy v Commission [2004] ECR I-3679 . . . 666 C-418–419/97 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [2000] ECR I-4475 . . . 707 C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123 . . . 785, 791, 792

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-1/98 P British Steel plc v Commission [2000] ECR I-10349 . . . 635 C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-675 . . . 475 C-58/98 Corsten [2000] ECR I-7919 . . . 674 C-64/98 Petrides Co Inc v Commission [1999] ECR I-5187 . . . 744 C-78/98 Preston v Wolverhampton Healthcare NHS Trust [2000] ECR I-3201 . . . 767, 775, 776 C-164/98 P DIR International Film Srl and others v Commission [2000] ECR I-447 . . . 169, 728 C-175 & 178/98 Criminal Proceedings against Paolo Lirussi and Francesca Bizzaro [1999] ECR I-6881 . . . 695, 737 C-186/98 Criminal Proceedings against Nunes and de Matos [1999] ECR I-4883 . . . 682, 761 C-224/98 D’Hoop v Office National de L’Emploi [2002] ECR I-6191 . . . 565 C-228/98 Dounias v Ypourgio Oikonomikon [2000] ECR I-577 . . . 762 C-236/98 JämställdhetsOmbudsmannen v Örebro läns landsting [2000] ECR I-2189 . . . 587 C-237/98 P Dorsch Consult Ingenieurgesellschaf mbH v Council [2000] ECR I-4549 . . . 752 C-240–244/98 Océano Grupo Editorial v Rocio Murciano Quintero [2000] ECR I-4491 . . . 772 C-258/98 Criminal Proceedings against Carra [2000] ECR I-4217 . . . 582 C-278/98 Netherlands v Commission [2001] ECR I-1501 . . . 89 C-281/98 Roman Angonese v Cassa di Riparmio di Bolzano SpA [2000] ECR I-4139 . . . 558 C-285/98 Kreil v Bundesrepublik Deutschland [2000] ECR I-69 . . . 589, 676 C-340/98 Italy v Council [2002] ECR I-2663 . . . 625, 627 C-344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369 . . . 483 C-351/98 Spain v Commission [2002] ECR I-8031 . . . 633 C-352/98 P Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-5291 . . . 738, 741, 742, 744, 782, 786 C-355/98 Commission v Belgium [2000] ECR I-1221 . . . 548 C-376/98 Germany v European Parliament and Council [2000] ECR I-8419 . . . 404, 424, 660 C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079 . . . 405, 422, 432, 723 C-396/98 Grundstuckgemeinschaft Schloßstraße GbR v Finanzamt Paderborn [2000] ECR I-4279 . . . 603

lxv

C-397 & 410/98 Metallgesellschaft Ltd and Hoechst AG and Hoechst (UK) Ltd v Commissioners of Inland Revenue and HM Attorney General [2001] ECR I-1727 . . . 776, 777, 782, 792 C-400/98 Finanzamt Goslar v Brigitte Breitsohl [2000] ECR I-4321 . . . 603 C-402/98 ATB v Ministero per le Politiche Agricole [2000] ECR I-5501 . . . 625, 626 C-407/98 Abrahamsson v Fogelqvist [2000] ECR I-5539 . . . 592 C-411/98 Angelo Ferlini v Centre Hospitalier de Luxembourg [2000] ECR I-8081 . . . 566 C-441–442/98 Kapniki Michaelidis AE v Idryma Koinonikon Asfaliseon (IKA) [2000] ECR I-7145 . . . 778 C-446/98 Fazenda Pública v Camara Municipal do Porto [2000] ECR I-11435 . . . 772 C-449/98 P International Express Carriers Conference (IECC) v Commission, La Poste, UK and the Post Office [2001] ECR I-3875 . . . 364 C-458/98 P Industrie des Poudres Spheriques v Council and Commission [2000] ECR I-8147 . . . 149, 313, 350, 525, 732 C-462/98 P MedioCurso-Etabelecimento de Ensino Particular Ld v Commission [2000] ECR I-7183 . . . 312, 350 C-466/98 Commission v United Kingdom [2002] ECR I-9427 . . . 409 C-467/98 Commission v Denmark [2002] ECR I-9519 . . . 409 C-468/98 Commission v Sweden [2002] ECR I-9575 . . . 409 C-469/98 Commission v Finland [2002] ECR I-9627 . . . 409 C-471/98 Commission v Belgium [2002] ECR I-9681 . . . 409 C-472/98 Commission v Luxembourg [2002] ECR I-9741 . . . 409 C-473/98 Kemikalieinspektionen v Toolex Alpha AB [2000] ECR I-5681 . . . 671, 696 C-475/98 Commission v Austria [2002] ECR I-9797 . . . 409 C-6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche [2000] ECR I-1651 . . . 331, 515, 695, 706 C-80–82/99 Flemmer v Council and Commission [2001] ECR I-7211 . . . 605 C-87/99 Zurstrassen v Administration des Contributions Directes [2000] ECR I-3337 . . . 548 C-88/99 Roquette Frères SA v Direction des Services Fiscaux du Pas-de-Calais [2000] ECR I-10465 . . . 768, 774

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxvi

Table of Cases

C-99/99 Italy v Commission [2000] ECR I-11535 . . . 465 C-120/99 Italy v Council [2001] ECR I-7997 . . . 463 C-122 & 125/99 P D and Sweden v Council [2001] ECR I-4319 . . . 594 C-135/99 Ursula Elsen v Bundesversicherungsanstalt [2000] ECR I-10409 . . . 566 C-150/99 Stockholm Lindöpark Aktiebolag v Sweden [2001] ECR I-493 . . . 790 C-157/99 BSM Geraets-Smits v Stichting Ziekenfonds VGZ [2001] ECR I-5473 . . . 675 C-184/99 Rudy Grzelczyk v Centre Public D’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193 . . . 550, 565, 568–70, 574 C-199/99 P Corus v UK EU:C:2003:531 . . . 355 C-205/99 Analir v Administracion General del Estado [2001] ECR I-1271 . . . 675 C-217/99 Commission v Belgium [2000] ECR I-10251 . . . 61 C-228/99 Silos e Mangimi Martini SpA v Ministero delle Finanze [2001] ECR I-8401 . . . 735 C-235/99 R v Secretary of State for the Home Department, ex p Kondova [2001] ECR I-6427 . . . 485 C-238, 244–245, 247, 250, 252 & 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375 . . . 355, 495, 667 C-239/99 Nachi Europe Gmbh v Hauptzollamt Krefeld [2001] ECR I-1197 . . . 733 C-274/99 P Connolly v Commission [2001] ECR I-1611 . . . 521, 662 C-313/99 Mulligan and others v Minister for Agriculture and Food, Northern Ireland [2002] ECR I-5719 . . . 670 C-321/99 P Associacao dos Refinadores de Acucar Portugueses (ARAP) v Commission [2002] ECR I-4287 . . . 621 C-340/99 TNT Traco SpA v Poste Italiane SpA [2001] ECR I-4109 . . . 582 C-353/99 P Hautala v Council [2001] ECR I-9565 . . . 393, 394, 656 C-354/99 Commission v Ireland [2001] ECR I-7657 . . . 682, 761 C-365/99 Portugal v Commission [2001] ECR I-5645 . . . 665 C-381/99 Brunnhofer v Bank der Österreichischen Postsparkasse AG [2001] ECR I-4961 . . . 679 C-390/99 Canal Satélite Digital SL v Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR I-607 . . . 675 C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR I-7091 . . . 673

C-453/99 Courage Ltd v Crehan [2001] ECR I- 6297 . . . 779, 782 C-475/99 Ambulanz Glockner v Landkreis Sudwestpfalz [2001] ECR I-8089 . . . 582 C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2891 . . . 677 C-493/99 Commission v Germany [2001] ECR I-8163 . . . 674 C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867 . . . 106, 616, 666 C-11/00 Commission v European Central Bank [2003] ECR I-7147 . . . 651, 652 C-15/00 Commission v European Investment Bank [2003] ECR I-7281 . . . 651 C-20 & 64/00 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v Scottish Ministers [2003] ECR I-7411 . . . 520, 661 C-24/00 Commission v France [2004] ECR I-1277 . . . 673, 709, 710 C-27 & 122/00 R v Secretary of State for the Environment, Transport and the Regions, ex p Omega Air Ltd [2002] ECR I-2569 . . . 464, 650 C-41/00 P Interporc Im- und Export GmbH v Commission [2003] ECR I-2125 . . . 732 C-50/00 P Union de Pequeños Agricultores v Council [2002] ECR I-6677 . . . 332, 336, 337, 339–41 C-53/00 Ferring SA v Agence Centrale des Organismes de Securité Sociale (ACOSS) [2001] ECR II-9067 . . . 442 C-57 and 61/00 P Freistaat Sachsen and Volkswagen Ag and Volkswagen Sachsen GmbH v Commission [2003] ECR I-9975 . . . 466 C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279 . . . 486, 674 C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325 . . . 605, 666, 775 C-74 and 75/00 Falck SpA and Accialierie di Bolzano SpA v Commission [2002] ECR I-7869 . . . 366, 381, 602, 622 C-76/00 P Petrotub SA and Republica SA v Council [2003] ECR I-79 . . . 370 C-87/00 Nicoli v Eridania SpA [2004] ECR I-9357 . . . 465 C-93/00 European Parliament v Council [2001] ECR I-10119 . . . 729 C-94/00 Roquette Frères SA v Directeur général de la concurrence and Commission [2002] ECR I-9011 . . . 495 C-112/00 Schmidberger Internationale Transporte und Planzuge v Austria [2003] ECR I-5659 . . . 517, 518, 521, 662, 663, 684, 685

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-113/00 Spain v Commission [2002] ECR I-7601 . . . 466 C-118/00 Larsy v INASTI [2001] ECR I-5063 . . . 790 C-129/00 Commission v Italy [2003] ECR I-14637 . . . 778 C-162/00 Land Nordrhein-Westfalen v Beata Pokrzeptowicz-Meyer [2002] ECR I-1049 . . . 605 C-179/00 Weidacher v Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501 . . . 625 C-187/00 Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-2741 . . . 679 C-204–205, 211, 213, 217, 219/00 P Aalborg Portland v Commission [2004] ECR I-123 . . . 353, 356, 357, 359, 361, 384, 667 C-253/00 Muñoz v Frumar [2002] ECR I-7289 . . . 780 C-255/00 Grundig Italiana SpA v Ministero delle Finanze [2002] ECR I-8003 . . . 775 C-278/00 Greece v Commission [2004] ECR I-3997 . . . 624, 666 C-294/00 Deutsche Paracelsus Schulen für Naturheilverhafen GmbH v Grabner [2002] ECR I-6515 . . . 687 C-298/00 P Italy v Commission [2004] ECR I-4087 . . . 622 C-312/00 P Commission v Camar Srl and Tico Srl [2002] ECR I-11355 . . . 738, 744 C-327/00 Santex SpA v Unita Socio Sanitaria Locale n.42 di Pavia, Sca Molnlycke SpA, Artsana SpA and Fater SpA [2003] ECR I-1877 . . . 769, 771 C-336/00 Republik Österreich v Martin Huber [2002] ECR I-7699 . . . 779 C-345/00 P Federation Nationale d’Agriculture Biologique des Régions de France v Council [2001] ECR I-3811 . . . 274 C-378/00 Commission v European Parliament and Council [2003] ECR I-937 . . . 119, 121, 730 C-395/00 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze [2002] ECR I-11877 . . . 312, 350 C-442/00 Caballero v Fondo de Garantia Salarial (Fogasa) [2002] ECR I-11915 . . . 463, 465 C-445/00 R Austria v Council [2001] ECR I-1461 . . . 723, 729 C-452/00 Netherlands v Commission [2005] ECR I-6645 . . . 468, 647 C-456/00 France v Commission [2002] ECR I-11949 . . . 467 C-465/00, 138 & 139/01 Rechsnungshof v Österreichischer Rundfunk and others [2003] ECR I-4989 . . . 485

lxvii

C-472/00 P Commission v Fresh Marine A/S [2003] ECR I-7541 . . . 738, 742, 744, 817 C-473/00 Cofidis SA v Fredout [2002] ECR I-10875 . . . 772 C-480–2, 484, 489, 490–1, 497–9/00 Azienda Agricole Ettore Ribaldi v AIMA [2004] ECR I-2943 . . . 670 C-495/00 Azienda Agricola Giorgio v AIMA [2004] ECR I-2993 . . . 605 C-6/01 Anomar v Estado Portugues [2003] ECR I-8621 . . . 687 C-13/01 Safalero Srl v Prefetto di Genova [2003] ECR I-8679 . . . 780 C-14/01 Molkerei Wagenfeld Karl Niemann GmbH & Co KG v Bezirksregierung Hannover [2003] ECR I-2279 . . . 464 C-63/01 Evans v Secretary of State for the Environment, Transport and the Regions and the Motor Insurers’ Bureau [2003] ECR I-14447 . . . 771, 790 C-91/01 Italy v Commission [2004] ECR I-4355 . . . 467, 633 C-95/01 Criminal Proceedings against John Greenham and Leonard Abel [2004] ECR I-1333 . . . 515, 709 C-99/01 Criminal Proceedings against Linhart and Biffl [2002] ECR I-9375 . . . 681 C-103/01 Commission v Germany [2003] ECR I-5369 . . . 432 C-125/01 Pflücke v Bundesanstalt für Arbeit [2003] ECR I-9375 . . . 775 C-147/01 Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien [2003] ECR I-11365 . . . 778 C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155 . . . 674 C-189/01 Jippes v Minister van Landbouw, Natuurbeheer en Visserij [2001] ECR I-5689 . . . 647 C-192/01 Commission v Denmark [2003] ECR I-9693 . . . 673, 709 C-199–200/01 P IPK-München GmbH v Commission [2004] ECR I-4627 . . . 732 C-215/01 Schnitzer [2003] ECR I-14847 . . . 674 C-224/01 Köbler v Austria [2003] ECR I-10239 . . . 787, 789 C-236/01 Monsanto Agricultura Italia SpA v Presidenza del Consiglio dei Ministri [2003] ECR I-8105 . . . 515, 706, 710 C-239/01 Germany v Commission [2003] ECR I-10333 . . . 731 C-256/01 Allonby v Accrington & Rossendale College, Education Lecturing Services, Trading as Protocol Professional and Secretary

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxviii

Table of Cases

of State for Education and Employment [2004] ECR I-873 . . . 678 C-257/01 Commission v Council [2005] ECR I-345 . . . 117, 121 C-271/01 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) [2004] ECR I-1029 . . . 106 C-304/01 Spain v Commission [2004] ECR I-7655 . . . 464 C-330/01 Hortiplant SAT v Commission [2004] ECR I-1763 . . . 106 C-353/01 P Mattila v Commission [2004] ECR I-1073 . . . 394, 656 C-359/01 P British Sugar plc v Commission [2004] ECR I-4933 . . . 667 C-393/01 France v Commission [2003] ECR I-5405 . . . 706 C-405/01 Colegio de Oficiales de la Marina Mercante Española v Administración del Estado [2003] ECR I-10391 . . . 556 C-482 & 493/01 Orfanopoulos v Land BadenWurttemberg [2004] ECR I-5257 . . . 486, 673 C-491/01 R v Secretary of State for Health, ex p British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453 . . . 405, 432, 520, 645, 652, 660 C-14/02 ATRAL SA v Belgium [2003] ECR I-4431 . . . 670 C-25/02 Rinke v Arztekammer Hamburg [2003] ECR I-8349 . . . 485, 583 C-30/02 Recheio-Cash and Carry SA v Fazenda Publica/Registo Nacional de Pessoas Colectivas and Ministerio Publico [2004] ECR I-6051 . . . 774 C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeiste der Bundesstadt Bonn [2004] ECR I-9609 . . . 522, 686 C-37 and 38/02 Di Leonardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero [2004] ECR I-6911 . . . 625 C-41/02 Commission v Netherlands [2004] ECR I-11375 . . . 672, 709 C-47/02 Anker, Ras and Snoek v Germany [2003] ECR I-10447 . . . 556 C-65 and 73/02 P ThyssenKrupp Gmbh and another v Commission [2005] ECR I-6773 . . . 624 C-71/02 Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025 . . . 685 C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheeer en Visserij [2004] ECR I-7405 . . . 708

C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I-2703 . . . 549, 550, 565, 573 C-141/02 P Commission v T-Mobile Austria GmbH [2005] ECR I-1283 . . . 368 C-148/02 Carlos Garcia Avello v Belgium [2003] ECR I-11613 . . . 565 C-183 and 187/02 P Daewoo Electronics Manufacturing España SA (Demesa) and another v Commission [2004] ECR I-10609 . . . 624 C-184 and 223/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789 . . . 520, 661 C-186 & 188/02 P Ramondin SA and others v Commission [2004] ECR I-10653 . . . 468 C-189, 202, 205, 208, and 213/02 P Dansk Rørindustri A/S and others v Commission [2005] ECR I-5425 . . . 604, 605, 626, 631, 632 C-196/02 Nikoloudi v Organismos Tilepikoinonion Ellados AE [2005] ECR I-1789 . . . 680 C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925 . . . 680 C-222/02 Peter Paul, Sonnen-Lutte and Christel Morkens v Bundesrepublik Deutschland [2004] ECR I-9425 . . . 784 C-234/02 P European Ombudsman v Frank Lamberts [2004] ECR I-2803 . . . 736, 737, 817, 818 C-239/02 Douwe Egberts NV v Westrom Pharma NV [2004] ECR I-7007 . . . 671 C-258/02 P Bactria Industriehygiene-Service Verwaltungs GMbH v Commission [2003] ECR I-15105 . . . 149, 317, 338, 347, 540 C-262/02 Commission v France [2004] ECR I-6569 . . . 685 C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425 . . . 149, 317, 318, 332, 338 C-270/02 Commission v Italy [2004] ECR I-1559 . . . 671 C-277/02 EU-Wood-Trading GmbH v Sonderabfal- Management-Gesellschaf Rheinland-Pfalz mbh [2004] ECR I-11957 . . . 686 C-280/02 Commission v France [2004] ECR I-8573 . . . 707 C-286/02 Bellio F. lii Srl v Prefettura di Treviso [2004] ECR I-3465 . . . 710 C-299/02 Commission v Netherlands [2004] ECR I-9761 . . . 673 C-301/02 P Tralli v ECB [2005] ECR I-4071 . . . 169 C-334/02 Commission v France [2004] ECR I-2229 . . . 670

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-376/02 Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën [2005] ECR I-3445 . . . 602 C-377/02 Leon Van Parys NV v BIRB [2005] ECR I-1465 . . . 739 C-387, 391 and 403/02 Criminal Proceedings against Silvio Berlusconi and others [2005] ECR I-3565 . . . 682, 761 C-434/02 Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I-11825 . . . 646 C-456/02 Trojani v Centre Public D’Aide Sociale de Bruxelles (CPAS) [2004] ECR I-7573 . . . 549, 550, 565, 567 C-459/02 Willy Gerekens and Association Agricole pour la Promotion de la Commercialisation Laitière Procola v Luxembourg [2004] ECR I-7315 . . . 602, 604 C-12/03 P Commission v Tetra Laval [2005] ECR I-987 . . . 458, 459, 470, 473, 475 C-17/03 Vereniging voor Energie, Milieu en Water and others v Directeur van de Dienstuitvoering en toezicht energie [2005] ECR I-4983 . . . 625 C-20/03 Criminal Proceedings against Burmanjer, Van der Linden and de Jong [2005] ECR I-4133 . . . 671 C-25/03 Finanzamt Bergisch Gladbach v HE [2005] ECR I-3123 . . . 680 C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885 . . . 177, 480, 703 C-41/03 P Rica Foods (Free Zone) NV v Commission [2005] ECR I-6875 . . . 475, 647 C-110/03 Belgium v Commission [2005] ECR I-2801 . . . 433, 601, 603 C-132/03 Ministero della Salute v Codacons [2005] ECR I-4167 . . . 710 C-140/03 Commission v Greece [2005] ECR I-3177 . . . 673 C-147/03 Commission v Austria [2005] ECR I-5969 . . . 673 C-152/03 Ritter-Coulais v Finanzamt Gemersheim [2006] ECR I-1711 . . . 286 C-160/03 Spain v Eurojust [2005] ECR I-2077 . . . 176 C-171/03 Maatschap Toeters and M C Verberk v Productschap Vee en Vlees [2004] ECR I-10945 . . . 646 C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177 . . . 788 C-176/03 Commission v Council [2005] ECR I-7879 . . . 405 C-182 and 217/03 Belgium and Forum 187 ASBL v Commission [2006] ECR I-5479 . . . 622, 629

lxix

C-198/03 P Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl [2005] ECR I-6357 . . . 742 C-203/03 Commission v Austria [2005] ECR I-935 . . . 677 C-209/03 R (on the application of Bidar) v London Borough of Ealing and Secretary of State for Education [2005] ECR I-2119 . . . 565, 570, 571 C-210/03 R v Secretary of State for Health, ex p Swedish Match [2004] ECR I-11893 . . . 405, 645 C-212/03 Commission v France [2005] ECR I-4213 . . . 673 C-240/03 P Comunità Montana della Valnerina v Commission [2006] ECR I-731 . . . 666 C-293/03 Gregorio My v ONP [2004] ECR I-12013 . . . 286 C-319/03 Briheche v Ministre de l’Interieur, Ministre de L’Education and Ministre de la Justice [2004] ECR I-8807 . . . 593, 677 C-330/03 Colegio de Ingenieros de Caminos, Canales y Puertos v Administración del Estado [2006] ECR I-801 . . . 687 C-342/03 Spain v Council [2005] ECR I-1975 . . . 622 C-346 and 529/03 Atzeni and others v Regione autonoma della Sardegna [2006] ECR I-1875 . . . 624 C-380/03 Germany v European Parliament and Council [2006] ECR I-11573 . . . 405, 645 C-402/03 Skov Æg v Bilka Lavprisvarehus A/S and Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen [2006] ECR I-199 . . . 762 C-436/03 European Parliament v Council [2006] ECR I-3733 . . . 422 C-445/03 Commission v Luxembourg [2004] ECR I-10191 . . . 674 C-453/03, 11, 12 and 194/04 R (on the application of ABNA Ltd and Others) v Secretary of State for Health and Food Standards Agency [2005] ECR I-10423 . . . 654, 726, 727 C-459/03 Intermodal Transports BV v Staatssecretaris van Financien [2005] ECR I-8151 . . . 281 C-470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-2749 . . . 789 C-508/03 Commission v UK [2006] ECR I-3969 . . . 615 C-535/03 R (on the application of Unitymark Ltd and North Sea Fishermen’s Organisation) v Department for Environment, Food and Rural Affairs [2006] ECR I-2689 . . . 647 C-6/04 Commission v UK [2005] ECR I-9017 . . . 708

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxx

Table of Cases

C-7/04 P(R) Commission v Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd [2004] ECR I-8739 . . . 723 C-27/04 Commission v Council [2004] ECR I-6649 . . . 207 C-109/04 Kranemann v Land-Rheinland Westfalen [2005] ECR I-2421 . . . 549 C-122/04 Commission v European Parliament and Council [2006] ECR I-2001 . . . 121 C-144/04 Mangold [2005] ECR I-9981 . . . 500 C-148/04 Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 [2005] ECR I-11137 . . . 666 C-154–155/04 R (on the application of Alliance for Natural Health and Nutri-link Ltd) v Secretary of State for Health [2005] ECR I-6451 . . . 169, 400, 432, 709 C-170/04 Rosengren v Riksåklagaren [2007] ECR I-4071 . . . 671 C-258/04 Office national de l’emploi v Ioannidis [2005] ECR I-8275 . . . 549 C-260/04 Commission v Italy [2007] ECR I-7083 . . . 392 C-295–298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619 . . . 763, 774, 775, 779, 782 C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055 . . . 792 C-310/04 Spain v Commission [2006] ECR I-7285 . . . 625, 648 C-338, 359–360/04 Criminal Proceedings against Placanica, Palazzese and Sorricchio [2007] ECR I-1891 . . . 683 C-344/04 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport [2006] ECR I-403 . . . 645, 650, 725 C-354/04 P Gestoras Pro Amnistia, Olano and Errasti v Council [2007] ECR I-1579 . . . 268 C-366/04 Schwarz v Bürgermeister der Landeshauptstadt Salzburg [2005] ECR I-10139 . . . 671 C-403 & 405/04 P Sumitomo Metal Industries Ltd v Commission [2007] ECR I-729 . . . 376 C-404/04 P Technische Glaswerke Ilmenau GmbH v Commission [2007] ECR I-1 . . . 366 C-407/04 P Dalmine SpA v Commission [2007] ECR I-829 . . . 366, 375, 468 C-409/04 R (on the application of Teleos plc and others) v Commissioners of Customs & Excise [2007] ECR I-7797 . . . 681 C-411/04 P Salzgitter Mannesmann GmbH v Commission [2007] ECR I-959 . . . 375

C-418/04 Commission v Ireland [2007] ECR I-10947 . . . 708 C-441/04 A-Punkt Schmuckhandels GmbH v Claudia Schmidt [2006] ECR I-2093 . . . 671 C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753 . . . 777, 790 C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679 . . . 647, 648, 698 C-524/04 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue [2007] ECR I-2107 . . . 777, 786 C-525/04 P Spain v Lenzing [2007] ECR I-9947 . . . 456, 465 C-17/05 Cadman v Health & Safety Executive [2006] ECR I-9583 . . . 587, 678 C-39 & 52/05 P Sweden and Turco v Council [2008] ECR I-4723 . . . 397, 398 C-49/05 P Ferriere Nord SpA v Commission [2008] ECR I-68 . . . 632 C-51/05 P Commission v Cantina sociale di Dolianova Soc coop arl [2008] ECR I-5341 . . . 736 C-54/05 Commission v Finland [2007] ECR I-2473 . . . 548 C-64/05 P Sweden v Commission [2007] ECR II-11389 . . . 331, 397, 433, 656 C-94/05 Emsland-Stärke GmbH v Landwirtschaft skammer Hannover [2006] ECR I-2619 . . . 665 C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA [2007] ECR I-6199 . . . 725 C-138/05 Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliktiet [2006] ECR I-8339 . . . 287 C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421 . . . 772 C-178/05 Commission v Greece [2007] ECR I-4185 . . . 762 C-201/05 Test Claimants in the CFC and Dividend Group Litigation [2008] ECR I-2875 . . . 778 C-208/05 ITC Innovative Technology Center GmbH v Bundesagentur für Arbeit [2007] ECR I-181 . . . 674 C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-6303 . . . 553 C-213/05 Geven v Land Nordrhein-Westfalen [2007] ECR I-6347 . . . 553 C-222–225/05 J van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 . . . 771, 772 C-243/05 P Agraz, SA and Others v Commission [2006] ECR I-10833 . . . 748

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-252/05 R (on the application of Thames Water Utilities Ltd) v South East London Division, Bromley Magistrates’ Court [2007] ECR I-3883 . . . 707 C-263/05 Commission v Italy [2007] ECR I-11745 . . . 707 C-266/05 P Jose Maria Sison v Council [2007] ECR I-1233 . . . 396, 645 C-278/05 Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053 . . . 790 C-282/05 P Holcim (Deutschland) AG v Commission [2007] ECR I-2941 . . . 731, 736, 742 C-295/05 Asemfo v Transformación Agraria SA [2007] ECR I-2999 . . . 287 C-305/05 Ordre des barreaux francophones et germanophone v Conseil des ministres [2007] ECR I-5305 . . . 520 C-318/05 Commission v Germany [2007] ECR I-6957 . . . 547 C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767 . . . 687, 693 C-402 & C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351 . . . 350, 353, 461, 536, 657, 659, 730 C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission [2008] ECR I-685 . . . 771 C-429/05 Max Rampion and Marie-Jeanne Godard, née Rampion v Franfinance SA and K par K SAS [2007] ECR I-8017 . . . 772 C-430/05 Ntionik Anonymi Etaireia Emporias H/Y and others v Epitropi Kefalaiagoras [2007] ECR I-5835 . . . 682 C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271 . . . 725, 726, 760, 771, 772 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 . . . 687–9, 693 C-439 & 454/05 P Land Oberösterreich and Republic of Austria v Commission [2007] ECR I-7141 . . . 350 C-456/05 Commission v Germany [2007] ECR I-10517 . . . 674 C-1/06 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas [2007] ECR I-5609 . . . 772 C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411 . . . 774 C-3/06 P Groupe Danone v Commission [2007] ECR I-1331 . . . 604, 667

lxxi

C-37 and 58/06 Viamex Agrar Handels GmbH and Zuchtvieh-Kontor GmbH (ZVK) v Hauptzollamt Hamburg-Jonas [2008] ECR I-69 . . . 607, 665 C-120–121/06 P FIAMM v Council and Commission [2008] ECR I-6513 . . . 740, 752 C-132/06 Commission v Italy [2008] ECR I-5457 . . . 506 C-133/06 European Parliament v Council [2008] ECR I-3189 . . . 121 C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-5103 . . . 601, 779 C-161/06 Skoma-Luxsro v Celní ředitelství Olomouc [2007] ECR I-10841 . . . 602, 603 C-199/06 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469 . . . 779 C-213/06 P EAR v Karatzoglou [2007] ECR I-6733 . . . 639 C-241/06 Lämmerzahl GmbH v Freie Hansestadt Bremen [2007] ECR I-8415 . . . 769, 773 C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505 . . . 686 C-257/06 Roby Profumi Srl v Comune di Parma [2008] ECR I-189 . . . 681 C-263/06 Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA [2008] ECR I-1077 . . . 650 C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483 . . . 773 C-271/06 Netto Supermarkt GmbH & Co OHG v Finanzamt Malchin [2008] ECR I-771 . . . 681 C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271 . . . 486 C-300/06 Ursula Voß v Land Berlin [2007] ECR I-10573 . . . 678 C-308/06 R (on the application of Intertanko) v Secretary of State for Transport [2008] ECR I-4057 . . . 601 C-309/06 Marks & Spencer plc v Commissioners of Customs & Excise [2008] ECR I-2283 . . . 778 C-319/06 Commission v Luxembourg [2008] ECR I-4323 . . . 683 C-383–385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid [2008] ECR I-1561 . . . 106 C-399 & 403/06 Hassan and Ayadi v Council and Commission [2009] ECR I-11393 . . . 352

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxii

Table of Cases

C-413/06 P Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala) [2008] ECR I-4951 . . . 460 C-452/06 R, ex parte Synthon BV v Licensing Authority of the Department of Health [2008] ECR I-7681 . . . 790 C-460/06 Nadine Paquay v Société d’architectes Hoet + Minne SPRL [2007] ECR I-8511 . . . 763 C-487/06 P British Aggregates Association v Commission [2008] ECI I-10515 . . . 728 C-500/06 Corporación Dermoestética SA v To Me Group Advertising Media [2008] ECR I-5785 . . . 687 C-501, 513, 515 & 519/06 P GlaxoSmithKline Services Unlimited v Commission [2009] ECR I-9291 . . . 460 C-25/07 Sosnowska v Dyrektor Izby Skarbowej we Wrocławiu Ośrodek Zamiejscowy w Wałbrzychu [2008] ECR I-5129 . . . 681 C-33/07 Ministerul Administraţiei şi Internelor-Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa [2008] ECR I-5157 . . . 673, 683 C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-7633 . . . 686 C-47/07 P Masdar (UK) Ltd v Commission [2008] ECR I-9761 . . . 619, 753 C-94/07 Andrea Raccanelli v Max-PlanckGesellschaft zur Förderung der Wissenschaft en eV [2008] ECR I-5939 . . . 550 C-127/07 Société Arcelor Atlantique et Lorraine and Others v Premier ministre and others [2008] ECR I-9895 . . . 577 C-139/07 P Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885 . . . 354, 395, 656 C-141/07 Commission v Germany [2008] ECR I-6935 . . . 686 C-166/07 European Parliament v Council [2009] ECR I-7135 . . . 730 C-169/07 Hartlauer [2009] ECR I-1721 . . . 674 C-171 and 172/07 Apothekerkammer des Saarlandes v Saarland and Ministerium für Justiz, Gesundheit und Soziales [2009] ECR I-4171 . . . 674 C-188/07 Commune de Mesquer v Total France SA and Total International Ltd [2008] ECR I-4501 . . . 708 C-228/07 Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich [2008] ECR I-6989 . . . 549

C-241/07 JK Otsa Talu OÜ v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) [2009] ECR I-4323 . . . 625 C-256/07 Mitsui & Co Deutschland GmbH v Hauptzollamt Düsseldorf [2009] ECR I-1951 . . . 603 C-276/07 Nancy Delay v Università degli studi di Firenze, Istituto nazionale della previdenza sociale (INPS) [2008] ECR I-3635 . . . 547 C-290/07 Commission v Scott SA, 2 September 2010 . . . 465 C-295/07 P Commission v Département du Loiret and Scott SA [2008] ECI I-9363 . . . 729 C-308/07 P Koldo Gorostiaga Atxalandabaso v European Parliament [2009] ECR I-1059 . . . 360 C-313/07 Kirtruna SL and Elisa Vigano v Red Elite de Electrodomésticos SA [2008] ECR I-7907 . . . 286 C-334/07 Denka International BV v Commission [2009] ECR II-4205 . . . 603, 647, 698 C-343/07 Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV [2009] ECR I-5491 . . . 331 C-349/07 Sopropé-Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369 . . . 312, 350, 353 C-369/07 Commission v Germany [2009] ECR I-7811 . . . 548 C-378–380/07 Kiriaki Angelidaki and Others [2009] ECR I-03071 . . . 773 C-385/07 P Der Grüne Punkt-Duales System Deutschland GmbH v Commission [2009] ECR I-6155 . . . 360 C-405/07 P Netherlands v Commission [2008] ECR I-8301 . . . 369, 456 C-440/07 P Commission v Schneider Electric SA [2009] ECR I-6413 . . . 738 C-441/07 P Commission v Alrosa Company Ltd EU:C:2010:377 [2010] ECR I-5949 . . . 460 C-443/07 Mediavilla v Commission [2008] ECR I-10945 . . . 620 C-514, 528, 532/07 Sweden v API and Commission [2010] ECR I-8533 . . . 397 C-518/07 Commission v Germany [2010] ECR I-1885 . . . 432 C-519/07 P Commission v Koninklijke FrieslandCampina NV [2009] ECR I-8945 . . . 622, 629 C-558/07 R (on the application of SPCM SA) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I-5783 . . . 645 C-12/08 Mono Car Styling SA, in liquidation v Dervis Odemis [2009] ECR I-6653 . . . 773

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-34/08 Azienda Agricola Disarò Antonio v Cooperativa Milka 2000 Soc coop arl [2009] ECR I-4023 . . . 653 C-46/08 Carmen Media Group Ltd v Land Schleswig-Holstein [2010] ECR I-8149 . . . 686 C-58/08 R (on the application of Vodafone Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform, 8 June 2010 . . . 426, 432, 434, 645 C-69/08 Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS) [2009] ECR I-6741 . . . 773 C-76/08 R Commission v Malta [2008] ECR I-64 . . . 723 C-89/08 P Commission v Ireland [2009] ECR I-11245 . . . 350, 352, 353, 370 C-94/08 Commission v Spain [2008] ECR I-160 . . . 547 C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado [2010] ECR I-635 . . . 792 C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147 . . . 313, 350 C-201/08 Plantanol GmbH & Co KG v Hauptzollamt Darmstadt [2009] ECR I-8343 . . . 601, 605 C-203/08 Sporting Exchange Ltd v Minister van Justitie, 3 June 2010 . . . 392 C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator [2010] ECR I-47573 . . . 686 C-280/08 Deutsche Telekom AG v European Commission [2010] ECR I-9555 . . . 370 C-317–320/08 Rosalba Alassini v Telecom Italia SpA [2010] ECR I-2213 . . . 773 C-333/08 Commission v France, 28 January 2010 . . . 673, 698, 699, 710 C-379 & 380/08 Raffinerie Mediterranee (ERG) SpA and others v Ministero dello Sviluppo economico EU:C:2010:127 . . . 394, 659 C-395 & 396/08 INPS v Bruno, Pettini, Lotti, Mateucci [2010] ECR I-5119 . . . 678 C-403 and 429/08 Football Association Premier League Ltd and Others v QC Leisure EU:C:2011:631 . . . 675 C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority [2010] ECR I-817 . . . 775 C-407/08 P Knauf Gips KG v European Commission EU:C:2010:389 . . . 356, 519 C-414/08 P Sviluppo Italia Basilicata SpA v European Commission, 25 March 2010 . . . 619 C-419/08 P Trubowest Handel GmbH and Viktor Makarov v Council and Commission, 18 March 2010 . . . 747

lxxiii

C-440/08 Gielen v Staatssecretaris van Financiën [2010] ECR I-2323 . . . 287 C-446/08 Solgar Vitamin’s France v Ministre de l’Économie, des Finances et de l’Emploi [2010] ECR I-3973 . . . 709 C-449/08 Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit [2009] ECR I-10241 . . . 625 C-458/08 Commission v Portugal, 18 Nov 2010 . . . 674 C-460/08 Commission v Greece, 10 December 2009 . . . 547 C-468/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol, 22 April 2010 . . . 678 C-484/08 Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) . . . [2010] ECR I-4785 . . . 287 C-496/08 P Pilar Angé Serrano and Others v European Parliament [2010] ECR I-1793 . . . 625 C-506/08 P Sweden v Commission and My Travel Group plc EU:C:2010:769 . . . 396, 397 C-537/08 P Kahla Thüringen Porzellan GmbH v Commission, 16 December 2010 . . . 619 C-542/08 Friedrich G Barth v Bundesministerium für Wissenschaft und Forschung, 15 April 2010 . . . 774 C-28/09 Commission v Austria EU:C:2011: 854 . . . 671 C- 34/09 Ruiz Zambrano v ONEM [2011] ECR I-1177 . . . 565 C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR T-13533 . . . 456, 477, 647, 698, 699 C-92 & 93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land HessenEU:C:2010:662 . . . 400, 490, 520, 529, 583, 664, 734 C-104/09 Roca Álvarez EU:C:2010:561 . . . 593 C-145/09 Land-Baden Würtemberg v Tsakouridis, 23 November 2010 . . . 673 C-168/09 Flos SpA v Semeraro Casa e Famiglia SpA EU:C:2011:29 . . . 607 C-176/09 Luxembourg v European Parliament and Council [2011] ECR I-3727 . . . 426, 463 C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien EU:C:2010: 806 . . . 686 C-221/09 AJD Tuna Ltd v Direttur talAgrikoltura u s-Sajd and Avukat Generali [2011] ECR I-1655 . . . 317

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxiv

Table of Cases

C-230–231/09 Hauptzollamt Koblenz v Kurt und Thomas Etling in GbR EU:C:2011:271 . . . 605 C-232/09 Dita Danosa v LKB Lizings SIA, 11 November 2010 . . . 550 C-236/09 Association Belge des Consammateurs Test-Achats ASBL v Conseil des Ministres EU:C:2011:100 . . . 490, 583, 734 C-246/09 Susanne Bulicke v Deutsche Büro Service GmbH [2010] ECR I-7003 . . . 775 C-272/09 KME Germany v Commission EU:C:2011:63 . . . 360 C-279/09 DEB v Bundesrepublik Deutschland [2010] ECR I-1384; EU:C:2010:811 9 . . . 529, 664, 774 C-304/09 Commission v Italy [2010] ECR I-13903 . . . 726 C-333/09 Noël v SCP Brouard Daude [2009] ECR I-205 . . . 505 C-343/09 Afton Chemical Ltd v Secretary of State for Transport EU:C:2010:419 . . . 456, 699 C-367/09 Belgisch Interventieen Restitutiebureau v SGS Belgium NV [2010] ECR I-1076 . . . 506, 682 C-372–373/09 Josep Peñarroja Fa [2011] ECR I-1785 . . . 674 C-410/09 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, 12 May 2011 . . . 602 C-421/09 Humanplasma GmbH v Republik Österreich [2010] ECR I-12869 . . . 683 C-429/09 Fuss v Stadt Halle, 25 November 2010 . . . 785 C-434/09 McCarthy v Home Secretary EU:C:2011:277 . . . 572 C-438/09 Bogusław Juliusz Dankowski v Dyrektor Izby Skarbowej w Łodzi, 22 December 2010 . . . 681 C-550/09 Criminal proceedings against E and F, 29 June 2010 . . . 338, 604 C-14/10 Nickel Institute v Secretary of State for Work and Pensions EU:C:2011:503 . . . 456 C-15/10 Etimine SA v Secretary of State for Work and Pensions EU:C:2011:50 . . . 456 C-58–68/10 Monsanto and others, 8 September 2011 . . . 710 C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration, 28 July 2011 . . . 773 C-94/10 Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet EU:C:2011:674 . . . 792 C-153/10 Staatssecretaris van Financiën v Sony Supply Chain Solutions (Europe) BV EU:C:2011:224 . . . 640 C-379/10 Commission v Italy EU:C:2011: 775 . . . 788

C-411 and 493/10 NS v Secretary of State EU:C:2011:86 . . . 539 C-465/10 Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration v Chambre de commerce et d’industrie de l’Indre EU:C:2011:867 . . . 666 C-584, 593 and 595/10 P European Commission v Kadi EU:C:2013:518 . . . 312, 350, 356, 462 C-617/10 Åklagaren v Hans Åkerberg Fransson EU:2013:C:105 . . . 495, 503–6, 530 C-35/11 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue EU:C:2012:707 . . . 777 C-135/11 P IFAW Internationaler TierschutzFonds GmbH v European Commission EU:C:2012:376 . . . 397 C-138/11 Compass-Datenbank GmbH v Republik Österreich EU:C:2012:449 . . . 442 C-246/11 P Portugal v Commission EU:C:2013:118 . . . 728 C-247 and 295/11 Spain and Italy v Council EU:C:2013:240 . . . 406 C-256/11 Dereci [2011] ECR I-11315 . . . 573 C-263/11 Ainārs Rēdlihs v Valsts ieņēmumu dienests EU:C:2012:497 . . . 682 C-277/11 M EU:C:2012:744 . . . 353 C-280/11 P Council of the European Union v Access Info Europe EU:C:2013:671 . . . 396 C-373/11 Panellinios Syndesmos Viomichanion Metapoiisis Kapnou v Ypourgos Oikonomias kai Oikonomikon EU:C:2013:567 . . . 414 C-397/11 Jőrös v Aegon Magyarország Hitel Zrt EU:C:2013:340 . . . 772 C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107 . . . 532–4 C-427/11 Kenny v Minister for Justice, Equality and Law Reform EU:C:2013:122 . . . 678 C-539/11 Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara EU:C:2013:591 . . . 687 C-545/11 Agrargenossenschaf Neuzelle eG v Landrat des Landkreises Oder-Spree EU:C:2013:169 . . . 619 C-568/11 Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri EU:C:2013: 40 . . . 640 C-583/11 P Inuit Tapiriit Kanatami v Parliament and Council EU:C:2013:625 . . . 343, 347 C-87/12 Ymeraga EU:C:2013:291 . . . 573 C-103 and 165/12 European Parliament v Commission and Council EU:C:2014:334 . . . 423 C-114/12 Commission v Council (Convention on the Rights of Broadcasting Organizations) EU:C:2014:2151 . . . 411

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-132/12 P Stichting Woonpunt v European Commission EU:C:2014:100 . . . 344 C-137/12 Commission and European Parliament v Council EU:C:2013:675 . . . 406 C-140/12 Brey EU:C:2013:565 . . . 568 C-159–162/12 Venturini v ASL Varese EU:C:2013:79 . . . 687 C-176/12 Association de médiation sociale (AMS) v Union locale des syndicats CGT, Laboubi EU:C:2014:2 . . . 500, 511, 512, 515, 516 C-270/12 United Kingdom v Council and Parliament EU:C:2014:18 . . . 163, 170, 176, 405, 423 C-274/12 P Telefónica SA v Commission EU:C:2013:852 . . . 344–6 C-276/12 Sabou v Finanční ředitelství pro hlavní město Prahu EU:C:2013:678 . . . 312, 350 C-293 and 594/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources EU:C:2014:238 . . . 514, 657, 663 C-295/12 P Telefónica SA and Telefónica de España SAU v European Commission EU:C:2014:2062 . . . 460, 495 C-350/12 P Council v in’t Veld EU:C:2014:2039 . . . 396, 397 C-362/12 Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue EU:C:2013:834 . . . 600 C-365/12 P Commission v EnBW EU:C:2014:112 . . . 396 C-370/12 Pringle v Government of Ireland, Ireland and the Attorney General EU:C:2012:756 . . . 411 C-390/12 Proceedings brought by Robert Pfleger EU:C:2014:281 . . . 506 C-427/12 Commission v European Parliament and Council EU:C:2014:170 . . . 141, 142 C-470/12 Photovost EU:C:2013:844 . . . 516 C-498/12 Pedone v N EU:C:2013:76 . . . 507 C-501–506 and 540–541/12 Specht v Land Berlin and Bundesrepublik Deutschland EU:C:2014:2005 . . . 787 C-595/12 Napoli v Ministero della Giustizia— Dipartimento dell’Amministrazione penitenziaria EU:C:2014:128 . . . 676 C-604/12 HN v Minister for Justice, Equality and Law Reform EU:C:2014:302 . . . 372 C-614/12 and 10/13 Dutka v Mezőgazdasági és Vidékfejlesztési Hivatal EU:C:2014:30 . . . 507 C-14/13 Cholakova v Osmo rayonno upravlenie pri Stolichna direktsia na vatreshnite rab EU:2013:C:374 . . . 507

lxxv

C-31/13 P Hungary v Commission EU:C:2014:70 . . . 267 C-56/13 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal EU:C:2014:352 . . . 507 C-65/13 European Parliament v Commission EU:C:2014:2289 . . . 141, 146 C-124–125/13 European Parliament and European Commission v Council EU:C:2015:790 . . . 730 C-127/13 P Strack v Commission EU:C:2014:2250 . . . 394, 656 C-129–130/13 Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën EU:C:2014:2041 . . . 313, 353, 361 C-146/13 Spain v European Parliament and the Council EU:C:2015:298 . . . 169 C-147/13 Spain v Council EU:C:2015: 299 . . . 169 C-166/13 Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis EU:C:2014:2336 . . . 314, 373 C-173/13 Leone v Garde des Sceaux EU:C:2014:2090 . . . 679 C-176/13 P Council of the European Union v Bank Mellat EU:C:2016:96 . . . 356, 462 C-198/13 Hernández v Reino de España (Subdelegación del Gobierno de España en Alicante) EU:C:2014:2055 . . . 507 C-200/13 P Council of the European Union v Bank Saderat Iran EU:C:2016:284 . . . 356, 462 C-206/13 Siragusa v Regione Sicilia— Soprintendenza Beni Culturali e Ambientali di Palermo EU:C:2014:126 . . . 507 C-244/13 Ogieriakhi v Minister for Justice and Equality EU:C:2014:2068 . . . 785 C-249/13 Khaled Boudjlida v Préfet des PyrénéesAtlantiques EU:C:2014:2431 . . . 314, 350 C-258/13 Sociedade Agrícola e Imobiliária da Quinta de S Paio Lda v Instituto da Segurança Social IP EU:C:2013:810 . . . 506, 507 C-265/13 Marcos v Korota SA and Fondo de Garantía Salarial EU:C:2014:187 . . . 507 C-269/13 P Acino AG v European Commission EU:C:2014:255 . . . 699 C-270/13 Haralambidis EU:C:2014:2185 . . . 555 C-333/13 Dano v Jobseeker Leipzig EU:C:2014:2358 . . . 565, 568 C-383/13 PPU, M G and N R v Staatssecretaris van Veiligheid en Justitie EU:C:2013:533 . . . 350, 361 C-390/13 P(R) European Medicines Agency (EMA) v InterMune UK Ltd EU:C:2013:795 . . . 723

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxvi

Table of Cases

C-398/13 P Inuit Tapiriit Kanatami v European Commission EU:C:2015:535 . . . 495, 530 C-423/13 ‘Vilniaus energija’ UAB v Lietuvos metrologijos inspekcijos Vilniaus apskrities skyrius EU:C:2014:218 . . . 675 C-426/13 P(R) European Commission v Federal Republic of Germany EU:C:2013:848 . . . 723 C-456/13 P T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission EU:C:2015:284 . . . 345–7 C-499/13 Macikowski v Dyrektor Izby Skarbowej w Gdańsku EU:C:2015:201 . . . 681 C-567/13 Nóra Baczó and János István Vizsnyiczai v Raiffeisen Bank Zrt EU:C:2015:88 . . . 770 C-596/13 P European Commission v Moravia Gas Storage as EU:C:2015:203 . . . 603 C-609/13 P Duravit AG v European Commission EU:C:2017:46 . . . 356 C-640/13 European Commission v UK EU:C:2014:2457 . . . 776 C-647/13 Office national de l’emploi v MarieRose Melchior EU:C:2014:2301 . . . 512 C-650/13 Delvigne v Commune de Lesparre Médoc and Préfet de la Gironde EU:C:2015:648 . . . 522 C-662/13 Surgicare—Unidades de Saúde SA v Fazenda Pública EU:C:2015:89 . . . 770 C-49/14 Finanmadrid EFC SA v Jesús Vicente Albán Zambrano EU:C:2016:98 . . . 774 C-62/14 Gauweiler v Deutscher Bundestag EU:C:2015:400 . . . 645 C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic EU:C:2015:597 . . . 568 C-74/14 ‘Eturas’ UAB v Lietuvos Respublikos konkurencijos taryba EU:C:2016:4 . . . 782 C-88/14 European Commission v European Parliament v Council EU:C:2015:499 . . . 141, 143, 144, 146 C-98/14 Berlington Hungary Tanácsadó és Szolgáltató kf v Magyar Állam EU:C:2015: 386 . . . 601, 686 C-113/14 Germany v European Parliament and Council EU:C:2016:635 . . . 730 C-157/14 Société Neptune Distribution v Ministre de l’Économie et des Finances EU:C:2015:823 . . . 645, 699 C-165/14 Rendón Marín v Administración del Estado EU:C:2016:675 . . . 573 C-232/14 Portmeirion Group UK Ltd v Commissioners for Her Majesty’s Revenue & Customs EU:C:2016:180 . . . 463 C-233/14 European Commission v Netherlands EU:C:2016:396 . . . 571 C-283–284/14 CM Eurologistik GmbH v Hauptzollamt Duisburg EU:C:2016:57 . . . 731

C-286/14 European Parliament and Council v Commission EU:C:2016:183 . . . 141, 145, 146, 730 C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto EU:C:2016:114 . . . 568 C-304/14 Secretary of State for the Home Department v CS EU:C:2016:674 . . . 573 C-308/14 European Commission v UK EU:C:2016:436 . . . 568 C-324/14 X-Steuerberatungsgesellschaf EU:C:2015:827 . . . 601 C-332/14 Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaf GbR v Finanzamt Krefeld EU:C:2016:417 . . . 600 C-358/14 Poland v European Parliament and Council EU:C:2016:323 . . . 426, 432, 434 C-362/14 Maximillian Schrems v Data Protection Commissioner EU:C:2015:650 . . . 514, 657, 658 C-363/14 European Parliament v Council EU:C:2015:579 . . . 133 C-377/14 Radlinger and Radlingerová v Finway as EU:C:2012:83 . . . 770, 772 C-419/14 WebMindLicenses kft EU:C:2015:832 . . . 519, 520 C-427/14 Valsts ieņēmumu dienests v ‘Veloserviss’ SIA EU:C:2015:803 . . . 600 C-438/14 von Wolffersdorff v Standesamt der Stadt Karlsruhe EU:C:2016:401 . . . 686 C-477/14 Pillbox 38 (UK) Ltd, trading as Totally Wicked v Secretary of State for Health EU:C:2016:324 . . . 425, 520, 645, 659, 661, 698, 699 C-496/14 Statul român v Tamara Văraru EU:C:2015:312 . . . 507 C-505/14 Klausner Holz Niedersachsen GmbH v Land Nordrhein-Westfalen EU:C:2015:742 . . . 774 C-524/14 P European Commission v Hansestadt Lübeck EU:C:2016:97 . . . 339 C-541/14 P Royal Scandinavian Casino Århus I/S v European Commission EU:C:2016:302 . . . 344 C-543/14 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers EU:C:2016:605 . . . 530 C-547/14 Philip Morris Brands SARL v Secretary of State for Health EU:C:2016:325 . . . 426, 659, 661 C-552/14 P Canon Europa NV v European Commission EU:C:2015:804 . . . 345 C-553/14 P Kyocera Mita Europe BV v European Commission EU:C:2015:805 . . . 344 C-560/14 M v Minister for Justice and Equality Ireland and the Attorney General EU:C:2017:101 . . . 313, 350, 353

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Table of Cases C-562/14 P Sweden v European Commission EU:C:2017:356 . . . 396 C-566/14 Jean-Charles Marchiani v European Parliament EU:C:2016:437 . . . 312, 350, 619 C-8–10/15 Ledra Advertising Ltd v European Commission and European Central Bank EU:C:2016:70 . . . 742 C-15/15 New Valmar BVBA v Global Pharmacies Partner Health Srl EU:C:2016:464 . . . 671 C-45/15 P Safa Nicu Sepahan Co v Council EU:C:2017:402 . . . 748 C-72/15 PJSC Rosnef Oil Co v Her Majesty’s Treasury EU:C:2017:236 . . . 462, 601, 645 C-79/15 P Council of the European Union v Hamas EU:C:2017:584 . . . 462 C-96/15 Saint Louis Sucre v Directeur général des douanes et droits indirects EU:C:2016:450 . . . 465 C-128/15 Spain v Council of the European Union EU:C:2017:3 . . . 463 C-133/15 H C Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank EU:C:2017:35 . . . 573 C-168/15 Tomášová v Slovenská republika EU:C:2016:602 . . . 788 C-201/15 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis EU:C:2016:972 . . . 674, 689 C-203 and 698/15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson EU:C:2016:970 . . . 520, 528 C-217 and 350/15 Criminal proceedings against Massimo Orsi and Luciano Baldetti EU:C:2017:264 . . . 530 C-218/15 Paoletti v Procura della Repubblica EU:C:2016:748 . . . 506 C-248, 254 and 260/15 P Maxcom Ltd v City Cycle Industries EU:C:2017:6 . . . 463 C-282/15 Queisser Pharma GmbH & Co KG v Bundesrepublik Deutschland EU:C:2017: 26 . . . 671, 699 C-284/15 Office national de l’emploi (ONEm) v M EU:C:2016:220 . . . 522 C-330/15 P Tomana v Council of the European Union and European Commission EU:C:2016:601 . . . 462 C-337/15 P European Ombudsman v Staelen [2017] ECR II-220 . . . 818 C-376 and 377/15 P Changshu City Standard Parts Factory and Ningbo Jinding Fastener

lxxvii

Co Ltd v Council of the European Union EU:C:2017:269 . . . 463 C-387–388/15 Orleans v Vlaams Gewest EU:C:2016:583 . . . 707 C-395/15 Daouidi v Bootes Plus SL EU:C:2016:917 . . . 507 C-411/15 P CFPR v European Commission EU:C:2017:11 . . . 619, 667 C-414/15 P Stichting Woonlinie and Others v European Commission EU:C:2017:215 . . . 466 C-429/15 Danqua v Minister for Justice and Equality EU:C:2016:789 . . . 782 C-444/15 Associazione Italia Nostra Onlus v Comune di Venezia EU:C:2016:978 . . . 522 C-517/15 P AGC Glass Europe v European Commission EU:C:2017:59 . . . 631, 723 C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni EU:C:2017:593 . . . 619 C-601/15 PPU J N v Staatssecretaris van Veiligheid en Justitie EU:C:2016:84 . . . 530 C-643 and 647/15 Slovak Republic and Hungary v Council of the European Union EU:C:2017:63 . . . 463 C-682/15 Berlioz Investment Fund SA v Directeur de l’administration des contributions directes EU:C:2017:373 . . . 506 C-696/15 P Czech Republic v European Commission EU:C:2017:595 . . . 133 C-26/16 Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira EU:C:2017:453 . . . 610 C-46/16 Valsts ieņēmumu dienests v ‘LS Customs Services’ SIA, EU:C:2017:839 . . . 372 C-78–79/16 Pesce v Presidenza del Consiglio dei Ministri—Dipartimento della Protezione Civile EU:C:2016:428 . . . 699 C-99/16 Lahorgue v Ordre des avocats du barreau de Lyon EU:C:2017:391 . . . 674 C-142/16 Commission v Germany EU:C:2017:301 . . . 707 C-214/16 Conley King v The Sash Window Workshop Ltd and Richard Dollar EU:C:2017:439 . . . 512, 516 C-294/16 PPU JZ EU:C:2016:610 . . . 530 C-321/16 Maria Isabel Harmon v Owen Pardue EU:C:2016:871 . . . 507 C-516/16 Erzeugerorganisation Tiefühlgemüse eGen v Agrarmarkt Austria EU:C:2017:1011 . . . 640 C-177/17 Demarchi Gino Sas v Ministero della Giustizia EU:C:2017:656 . . . 507

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISL ATION, TREATIES, AND CONVENTIONS Amsterdam Treaty . . . . . . . . . . . . . . . . 19–21, 239 Charter of Fundamental Rights of the European Union . . . . . . . . . . . . . . . . . . 484–9, 497–544 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 537, 538 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 537, 538 Arts 1–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . 497, 537, 538 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . 498, 514, 658 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514, 658 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 529 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 509 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . 523, 524 Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Arts 16–54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Art 21(1) . . . . . . . . . . . . . . . . . . . . 498, 523, 524 Art 23 . . . . . . . . . . . . . . . . . . . . . . . 499, 523, 524 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 27 . . . . . . . . . . . . . . . . . . . . . . . 500, 512, 516 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Arts 29–31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523, 524 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512, 523 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 41 . . . . . . . . . . . 346, 372, 373, 526, 527, 540 Art 41(1) . . . . . . . . . . . . . . . . 367, 373, 526, 527 Art 41(2) . . . . 313, 346, 350, 354, 373, 526, 540 Art 41(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Art 41(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522, 525 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 45(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522 Art 47 . . . . . . . 346, 360, 367, 373, 533, 540, 541 Art 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 47(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 48(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503–5 Art 51(1) . . . . . . . . . . . . . . . . . . 499, 501–4, 508 Art 51(2) . . . . . . . . . . . . 490, 509, 510, 523, 525 Art 52(1) . . . . . . . . . . . . . . . . . . . . . 518–22, 664 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 522–7 Art 52(3) . . . . . . . . . . . . 495, 519, 522, 528, 530 Art 52(5) . . . . . . . . . . . . . . . . . . . . 511, 515, 516 Art 52(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 Art 53 . . . . . . . . . . . . . . . . . . . . . . . 531, 533, 535 Convention of Human Rights and Biomedicine . . . . . . . . . . . . . . . . . . . . . . . . 510 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 EC Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426, 427 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517, 672 Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Art 81(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 81(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Art 95 . . . . . . . . . . . . . . . . . . . 401, 404, 405, 421 Art 95(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635 Art 137(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 137(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 138(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 139(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 139(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 155 . . . . . . . . . . . . . . . . . . . . . . 4, 5, 114, 117 Art 173 . . . . . . . . . . . . . . . . . . . . . . 272, 273, 332 Art 174(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696 Art 174(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxx

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Art 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Art 202 . . . . . . . . . . . . . . . . . . . . . . 120, 138, 142 Art 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Art 230 . . . . . . . . . . . . . . 65, 309, 334, 336, 337, 339, 340, 342, 460 Art 230(1) . . . . . . . . . . . . . . . . . . . . . . . . . 65, 175 Art 230(4) . . . . . . . . . . . . . . . . . . . 333, 335, 339 Art 231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Art 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Art 234 . . . . . . . . . . . . . . 334, 335, 336, 339, 342 Art 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Art 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Art 308 . . . . . . . . . . . . . . . . . . . . . 27, 401, 421–2 ECSC Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 195, 576 Art 4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 70(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 EEC Treaty Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Art 43(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 24 Art 85(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Art 85(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Art 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 24 Art 100a (now Art 114 TFEU) . . . . . . . . . . . . 10 Art 119 . . . . . . . . . . . . . . . . . . . . . . . . . . 587, 588 Art 130a (now Art 174 TFEU) . . . . . . . . . . . . 11 Art 130r–130t . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . 10, 117–20 Art 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 114 Art 155 . . . . . . . . . . . . . . . . . . . . . . . . 4, 117, 170 Art 173 . . . . . . . . . . . . . . . . . . 170, 272, 273, 330 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 European Convention on Human Rights and Fundamental Freedoms 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492, 493 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 Art 6(1) . . . . . . . . . . . . . . . . . . . . . 359, 360, 496 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 Lisbon Treaty 2007 . . . . . . . . . . . . . . . . . . . . . . . . 27

Maastricht Treaty 1992 . . . . . . . . . . . . 14–15, 389 Art K.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Art K.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Art K.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 New York Convention on the Rights of the Child 1989 . . . . . . . . . . . . . . . . . . . . . . 509 Nice Treaty 2000 . . . . . . . . . . . . . . . . . . . 19, 21, 291 Single European Act 1986 (SEA) . . . . . . . . 10–12, 93, 117, 402, 486 Statute of the Court of Justice Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Art 50(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 291 Arts 56–62 . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Treaty on European Union TEU Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . 234, 518, 519 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519 Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 275 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Art 5(3)–(4) . . . . . . . . . . . . . . . . . . . . . . 427, 432 Art 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 373, 537, 812 Art 6(1) . . . . . . . . . . . . . . . . . . . . . 486, 490, 503 Art 6(2) . . . . . . . . . . . . . . . . . . . . . 486, 492, 493 Art 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 493, 495 Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 11 . . . . . . . . . . . . . . . . . . . . . . . 149, 322, 329 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 Art 16(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 16(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 16(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 19 . . . . . . . . . . . . . . . . . . . . . . . 263, 292, 526 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 Treaty on the Functioning of the European Union TFEU Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403–4 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 413, 420 Art 2(5) . . . . . . . . . . . . . . . . . . . . . 415, 417, 418 Art 2(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412, 420 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Art 3(2) . . . . . . . . . . . . . 406, 407, 408, 410, 411 Art 4 . . . . . . . . . . . . . . . . . . . . 412, 413, 417, 420 Art 4(3) . . . . . . . . . . . . . . . . . . . . . 340, 413, 414 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 413, 414 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . 413, 418, 419 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 412, 416, 420 Art 12 . . . . . . . . . . . . . . . . . . . . . . . 573, 697, 706 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264, 556 Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . 184, 391 Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Art 15(3) . . . . . . . . . . . . . . . . 354, 391, 392, 525 Art 18 . . . . . . . . . . . . . . . . . . . . 264, 557–74, 581 Art 19 . . . . . . . . . . . . . . . . . 269, 270, 523, 594–7 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564–74 Art 20(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564–75 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 34 . . . . . . . . . . . . . . . 675, 691, 692, 696, 710 Art 35(3) . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519 Art 36 . . . . . . . . . . . . . . . . . . . 518, 519, 670, 696 Art 39 . . . . . . . . . . . 440, 441, 576, 577, 580, 645 Art 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287, 440 Art 40(2) . . . . . . . . . . . . . . . . . . . . . . 576–8, 740 Art 45 . . . . . . . . . . . 547, 549–554, 557, 558, 575 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Art 45(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Art 45(4) . . . . . . . . . . . . . . . . . . . . . . . . . 552, 553 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 688 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670, 776 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Arts 67–89 . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . . . 375, 378 Art 101(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Art 101(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Art 102 . . . . . . . . . . . . . . . . . . . . . . 375, 378, 460 Art 104(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 106 . . . . . . . . . . . . . . . . . . 352, 367, 368, 582 Art 106(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 Art 106(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 Art 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 Art 107(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 Art 107(3)(a) . . . . . . . . . . . . . . . . 437, 440, 449 Art 107(3)(b) . . . . . . . . . . . . . . . . . . . . . 466, 467 Art 107(3)(c) . . . . . . . . . . . . . . . . . . . . . 449, 466 Art 108 . . . . . . . . . . . . . . . . . . . . . . 365, 378, 624 Art 108(2) . . . . . . . . . . . . . . . . . . . . . 29, 291, 365 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Art 114 . . . . . . 10, 404, 418, 421, 424, 426, 435 Art 114(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369

lxxxi

Art 121 . . . . . . . . . . . . . . . . . . . . . . 202, 204, 217 Art 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Art 126(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 126(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 126(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Art 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 146(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 147 . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 416 Art 148 . . . . . . . . . . . . . . . . . . 202, 211, 217, 321 Art 148(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Art 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Art 150 . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 321 Art 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Art 153 . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 416 Art 153(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 Art 153(2) . . . . . . . . . . . . . . . 214, 215, 240, 241 Art 153(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 Art 153(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583 Art 154 . . . . . . . . . . . . . . . . . . 241, 249, 251, 260 Art 154(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Art 155 . . . . . . . . . . . . . . . . . . . . 241, 251–6, 510 Art 155(2) . . . . . . . . . . . . . . . . . . . . . . . . 246, 258 Art 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 157 . . . . . . . . . . . . . . 264, 499, 559, 581–94, 678, 679 Art 157(4) . . . . . . . . . . . . . . . . . . . 589, 592, 593 Art 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Art 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 166 . . . . . . . . . . . . . . . . . . . . . . . . . . 417, 562 Art 167 . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 417 Art 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 168(1) . . . . . . . . . . . . . . . . . . . . . . . . 697, 706 Art 168(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 168(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Art 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697 Art 173 . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 417 Art 173(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 91 Art 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Art 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 191 . . . . . . . . . . . . . . . . . . . . . . . . . . 695, 696 Art 191(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 706 Art 194(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 195(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 196(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Art 197(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Art 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 209(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Art 212(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Art 216 . . . . . . . . . . . . . . . . . . . . . . 407, 408, 411 Art 227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800 Art 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxxii

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Art 228(1) . . . . . . . . . . . . . . . . . . . . . . . . 801, 802 Arts 251–281 . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Art 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 256(1) . . . . . . . . . . . . . . . . . . . . . . . . 290, 292 Art 256(3) . . . . . . . . . . . . . . . 293, 294, 295, 296 Art 258 . . . . . . . . . . . . . . . . . . 104, 282, 710, 807 Art 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667 Art 263 . . . 65, 66, 88, 171, 175, 267, 281–3, 290, 293, 340, 368, 428, 431, 458, 526, 728, 758 Art 263(1) . . . 171, 176, 194, 263, 264, 266, 283 Art 263(2) . . . . . . . . . . . 194, 265, 269, 270, 401 Art 263(4) . . . . . . . . . . . . . 268, 309, 342–4, 346, 347, 368, 540, 541 Art 263(5) . . . . . . . . . . . . . . . . . . . . . . . . 176, 283 Art 263(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Art 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . 728–36 Art 265 . . . . . . . . . . . . . . 171, 264, 281, 282, 290 Art 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . 728–36 Art 267 . . . . . . . . . . . . 171, 264, 282, 283, 286, 287, 293, 301, 305, 306, 339, 340, 344, 445, 476, 539, 540, 690, 710, 758 Art 267(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 268 . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 754 Art 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 Art 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Art 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Art 289 . . . . . . . . . . . . . . . . . . . . . . 128, 343, 739 Art 290 . . . . . . . . 128, 129, 131–3, 137–45, 147, 165, 171, 172, 191, 197, 343 Art 290(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 290(2) . . . . . . . . . . . . . . . . . . . . . . . . 132, 133 Art 290(3) . . . . . . . . . . . . . . . . . . . . . . . . 128, 343 Art 291 . . . . . . . . 6, 128, 129, 131, 134, 137–45, 171, 172, 291, 343 Art 291(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 291(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Art 296 . . . . . . . . . . . . . . . . . . . . . . 370, 371, 380 Art 298 . . . . . . . . . . . . . . . 28, 351, 384, 385, 819 Art 325 . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 652 Art 340 . . . . . . . . . . . . . . . . . . . . . . 281, 755, 784 Art 340(2) . . . . . . . 174, 736, 737, 740, 751, 784 Art 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 Art 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 Art 346 . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519

Art 352 . . . . . . . . . . . . . . . . 277, 384, 421–4, 435 Art 352(1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . 423 Protocol 1 on the Role of National Parliaments in the European Union . . . . 428 Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality . . . . . . . . . . . . . . . . . . . 427–8 Protocol 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 Protocol 12 on the Excessive Deficit Procedure, Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

SECONDARY LEGISLATION Regulations Reg 17/62/EEC [1962] OJ L13/204 First Regulation implementing Articles 85 & 86 of the Treaty Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Arts 10–14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Reg 19/62/EEC [1962] OJ 30/933 on the progressive establishment of a common organisation of the market in cereals Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 115 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 115 Reg 172/67/EEC [1967] OJ 130/2602 on general rules governing the denaturing of wheat and rye of bread making quality . . . . . . . 448 Reg 1009/67EEC [1967] OJ L308/1 on the common organisation of the market in sugar Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Art 9(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Reg 644/68 [1968] OJ L122/3 amending 172/67/ EEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 Reg 768/68/EEC [1968] OJ L143/12 establishing the general rules for the denaturation of sugar used for animal feed, Art 2 . . . . . . 446 Reg 802/68/EEC [1968] OJ L148/1 on the common definition of the concept of the origin of goods . . . . . . . . . . . . . . . . . . . . . . . . 9 Arts 12–14 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 116 Reg 1612/68 [1968] OJ L257/2 on freedom of movement for workers within the Community [1968] OJ L257/2 . . . . 551, 569 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 Art 7(2)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Reg 729/70/EEC [1970] OJ L94/13 on the financing of the Common Agricultural Policy Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 83 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 83 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 84 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 84, 88 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 84 Reg 974/71/EEC [1971] OJ L106/1 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States . . . . . . . . . . . . . . . . . . . . . . . . . . 447, 450 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 Reg 2707/72/EEC [1972] OJ L291/3 laying down the conditions for applying protective measures for fruit and vegetables . . . . . . 628 Reg 337/75/EEC [1975] OJ L39/1 establishing a European Centre for the Development of Vocational Training . . . . . . . . . . . . . . 13, 156 Reg 1365/75/EEC [1975] OJ L139/1 on the creation of a European Foundation for the Improvement of Living and Working Conditions . . . . . . . . . . . . . . . . . . . . . . 13, 156 Reg 1697/79/EEC [1979] OJ L197/1 on the post­clearance recovery of import duties or export duties which have not been required of the person liable for payment of goods entered for a customs procedure involving the obligation to pay such duties, Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623 Reg 2052/88/EEC [1988] OJ L185/9 on the tasks of the structural funds and their effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments . . 11, 30 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Reg 4253/88/EEC [1988] OJ L374/1 laying down provisions for implementing Regulation (EEC) 2052/88 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 102 Art 21(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 24(2) . . . . . . . . . . . . . . . . . . . . 102, 106, 107

lxxxiii

Reg 1210/90/EEC [1990] OJ L120/1 on the establishment of the European Environment Agency and the European Environment Information and Observation Network, Art 4 . . . . . . . . . . . . . . . . . . . 13, 17, 156, 737 Reg 1360/90/EEC [1990] OJ L131/1 establishing a European Training Foundation . . . . . . . . . . . . . . . . . . . . . . 17, 156 Reg 2913/92/EEC [1992] OJ L302/1 establishing the Community Customs Code . . . . . . . . . 7 Reg 302/93/EEC [1993] OJ L36/1 on the establishment of a European Centre for Drugs and Drug Addiction . . . . . . . . 17, 156 Reg 2081/93/EEC [1993] OJ L193/5 amending Regulation 2052/88, Art 1 . . . . . . . . . . . . . 93 Reg 2082/93/EEC [1993] OJ L193/20 amending Regulation 4253/88 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 102 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Reg 2309/93/EEC [1993] OJ L214/1 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products . . . . . . . . . . . . 17, 31, 156 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 165 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Reg 2454/93/EEC [1993] OJ L253/1 laying down provisions for the implementation of Council Regulation (EEC) 2913/92 . . . . . . 7 Reg 40/94/EC [1994] OJ L11/1 on the Community Trademark . . . . . . . . . . . 17, 156 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 22(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Reg 1164/94/EC [1994] OJ L130/1 establishing a Cohesion Fund Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Reg 1681/94/EC [1994] OJ L178/43 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the structural policies and the organization of information systems in this field . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Reg 2062/94/EC [1994] OJ L216/1 establishing a European Agency for Safety and Health at Work . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 156 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 185 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 2100/94/EC [1994] OJ L227/1 on Community Plant Variety Rights . . . . 17, 156

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxxiv

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Reg 2965/94/EC [1994] OJ L314/1 setting up a Translation Centre for Bodies of the European Union . . . . . . . . . . . . . . . . 17, 156 Reg 1287/95/EC [1995] OJ L125/1 amending Regulation (EEC) 729/70 on the financing of the common agricultural policy [1995] OJ L125/1 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Reg 1663/95/EC [1995] OJ L158/6 laying down detailed rules for the application of Council Regulation (EEC) 729/70 regarding the clearance of accounts of the EAGGF Guarantee Section . . . . . . . . . . . . . . . . . . . 85 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 85 Reg 2988/95/EC [1995] OJ L312/1 on the protection of the European Communities’ financial interests . . . . . . . . . . . . . . . . . . . 104 Reg 258/97/EC [1997] OJ L43/1 concerning novel food and novel food ingredients, Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . 706, 710 Reg 515/97/EC [1997] OJ L82/1 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters . . . . . . . . . . . . . . . . . . . 33 Reg 1035/97/EC [1997] OJ L151/1 establishing a European Monitoring Centre on Racism and Xenophobia . . . . . . . . . . . . . . . . . 17, 157 Reg 1466/97/EC [1997] OJ L209/1 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies . . . . . . 208 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Reg 1467/97/EC [1997] OJ L209/6 on speeding up and clarifying the implementation of the excessive deficit procedure Recital (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Arts 3–6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Arts 11–14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Reg 2064/97/EC [1997] OJ L290/1 establishing detailed arrangements for the implementation of Council Regulation (EEC) 4253/88 regards the financial control by Member States of operations co-financed by the Structural Funds . . . . . . . . . . . . . . . . 103, 107 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Reg 659/1999/EC [1999] OJ L83/1 laying down detailed rules for the application of Article 93 of the Treaty . . . . . . . . . . . . . . . . . . . . . . 28 Reg 1258/1999/EC [1999] OJ L160/103 on the financing of the common agricultural policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 7(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Reg 1260/99 [1999] OJ L161/1 laying down general provisions on the Structural Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 101 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Arts 13–19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 15(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 39(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Reg 2454/1999 [1999] OJ L299/1 setting up of a European Agency for Reconstruction . . . . . . . . . . . . . . . . . . 17, 157 Reg 1049/2001/EC [2001] OJ L145/43 regarding public access to European Parliament, Council and Commission documents . . . 51, 184, 390, 392, 394–99, 525 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395 Art 4(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Art 4(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 Art 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Reg 178/2002/EC [2002] OJ L31/1 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety . . . . . . . . . . . . . 157, 717 Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717 Recital 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Recital 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Art 3(10)–(13) . . . . . . . . . . . . . . . . . . . . . . . . 717 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717, 718 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717, 718 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 718 Art 22(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Art 25(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 26(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 38(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Reg 1406/2002/EC [2002] OJ L208/1 establishing a European Maritime Safety Agency . . . . . . . . . . . . . . . . . . . . . . . . 157, 185 Art 2(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 10(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1592/2002/EC [2002] OJ L240/1 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Reg 1605/2002 [2002] OJ L248/1 on the Financial Regulation applicable to the General Budget of the European Communities . . . . . . . . . . 22, 28, 53, 56, 188 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Art 54(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 56(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Reg 2342/2002 [2002] OJ L357/1 laying down detailed rules for the implementation of Council Regulation 1605/2002 . . . . . . . . . 58 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Reg 2343/2002/EC [2002] OJ L357/72 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) 1605/2002 . . . 188 Reg 1/2003/EC [2003] OJ L1/1on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty . . . 25, 375 Arts 5–7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 378 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

lxxxv

Art 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Reg 58/2003/EC [2003] OJ 2003 L11/1 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes . . . . . . . . . . 26, 29, 62, 161, 737 Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Recital 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Arts 2–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Arts 8–11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Arts 12–16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 22(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Reg 139/2004 [2005] OJ 325/7 . . . . . . . . . . . . . 355 Reg 448/2004/EC [2004] OJ L72/66 on the eligibility of expenditure of operations co-financed by the Structural Funds . . . 108 Reg 460/2004/EC [2004] OJ L77/1 establishing the European Network and Information Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg 723/2004/EC [2004] OJ L124/1 amending the Staff Regulations of the officials of the European Communities and the Conditions of Employment of other servants of the European Communities . . . . . . . . . . . . . . . 53 Reg 726/2004 [2004] OJ L136/1 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency . . . . . . . . . . . 156 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 64(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 65(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 66(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Reg 773/2004 [2004] OJ L123/18 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Art 10(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Art 14(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxxvi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Reg 851/2004/EC [2004] OJ L142/1 establishing a European Centre for Disease Prevention and Control . . . . . . . . . . . . . . . . . . . . . . . . 157 Arts 5–10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 19–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 881/2004 [2004] OJ L164/1 establishing a European Railway Safety Agency . . . . . . 157 Reg 1653/2004/EC [2004] OJ L297/6 on a standard financial regulation for the executive agencies pursuant to Council Regulation (EC) 58/2003 . . . . . . . . . . . . . . 65 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Reg 2006/2004/EC [2004] OJ L364/1 on cooperation between national authorities responsible for the enforcement of consumer protection laws . . . . . . . . . . 17, 34 Reg 2007/2004/EC [2004] OJ L349/1 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union . . . . . . . . . . . . . . . . . . . . 157 Reg 2230/2004/EC [2004] OJ L379/64 laying down detailed rules for the implementation of EP and Council Regulation (EC) 178/2002 with regard to the networking of organisations operating in the Fields within the EFSA’s Mission . . . . . . . . . . . . . . . . . . 184 Reg 768/2005/EC [2005] OJ L128/1 establishing a Common Fisheries Control Agency . . . . 157 Art 23(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Reg 1055/2005/EC [2005] OJ L174/1 amending Regulation 1466/97 . . . . . . . . . . . . . . . . . . 207 Reg 1056/2005/EC [2005] OJ L174/5 amending Regulation 1467/97 . . . . . . . . . . . . . . . . . . 207 Reg 1112/2005/EC [2005] OJ L184/5 establishing a European agency for safety and health at work . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 185 Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1290/2005/EC [2005] OJ L209/1 on the financing of the common agricultural policy . . . . . . . . . . . . . . . . . . . . . . 84 repealed Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Reg 1083/2006/EC [2006] OJ L210/25 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Arts 9–17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Arts 25–27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 32(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 101 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Art 39(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Arts 85–88 . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Arts 91–92 . . . . . . . . . . . . . . . . . . . . . . . 103, 105 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Reg 1907/2006/EC [2006] OJ L396/1 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg 1995/2006 [2006] OJ L390/1 amending Regulation 1605/2002 . . . . . . . . . . . . . . 22, 56 Reg 168/2007/EC [2007] OJ L53/1 establishing a European Union Agency for Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Art 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Reg 219/2007/EC [2007] OJ L64/1 . . . . . . . . . . 23 Reg 478/2007 [2007] OJ L111/13 amending Regulation 1605/2002 . . . . . . . . . . . . . . . . . 58 Reg 216/2008 [2008] OJ L79/1 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency . . . . . . . . . . . . . . . . . . . 157, 180, 326 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Art 33(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 40–51 . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Reg 73/2009/EC [2009] OJ L30/16 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation 1782/2003/EC . . . . . . . . . . . . . . . . . . . . . . . 83 Reg 207/2009/EC [2009] OJ L78/1 on the Community trade mark (codified version) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Reg 401/2009/EC [2009] OJ L126/13 on the European Environment Agency and the

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS European Environment Information and Observation Network (Codified Version) . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Reg 713/2009/EC [2009] OJ L211/1 establishing an Agency for the Cooperation of Energy Regulators . . . . . . . . . . . . . . . . . . . . . . . . . 157 Reg No 1092/2010/EU [2010] OJ L331/1 on European Union macro-prudential oversight of the financial system and Establishing a European Systemic Risk Board . . . . . . . . . 158 Reg 1093/2010/EU [2010] OJ L331/12 establishing a European Supervisory Authority (European Banking Authority) 131, 158, 208 Recital (23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 10 . . . . . . . . . . . . . . . . . . . . . . . 169, 187, 191 Art 10(1)(3) . . . . . . . . . . . . . . . . . . . . . . 191, 194 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 17(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 18(3)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 19(3)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . 165 Art 40(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Arts 40–49 . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 43(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . 180, 181 Art 81(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Reg 1094/2010/EU [2010] OJ L331/48 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) . . . . . . . . 131, 158, 208 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Reg 1095/2010/EU establishing a European Supervisory Authority (European Securities and Markets Authority) . . . . . 131, 158, 208 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Reg 182/2011/EU [2011] OJ L55/13 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 3(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 5(1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

lxxxvii

Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Reg 492/2011/EU OJ L141/1 on freedom of movement of workers in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Reg 1173/2011/EU [2011] OJ L306/1 on the effective enforcement of budgetary surveillance in the euro area . . . . . . . . . . 208 Reg 1174/2011/EU [2011] OJ L306/8 on enforcement measures to correct macroeconomic imbalances in the euro area . . . . . 209 Reg 1175/2011/EU [2011] OJ L306/12 amending Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies . 208 Reg 1176/2011/EU [2011] OJ L306/25 on the prevention and correction of macroeconomic imbalances . . . . . . . . . . . . . . . . . . . 209 Reg 1177/2011/EU [2011] OJ L306/33 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure . . . . . . . . . . . . 208 Reg 236/2012 [2012] OJ L86/1 on short selling and certain aspects of credit default swap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 172 Reg 528/2012/EU Art 80(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Reg 966/2012/EU [2012] OJ L298/1 Financial Regulation 2012 (repealing Reg 1605/2002) . . . . . . . . . . . . . . . . . . . 53, 56, 58, 188 Art 58(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 58, 62 Art 58(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . 58, 74 Art 58(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 64 Arts 58–63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Arts 71–75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 84–86 . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62 Arts 87–89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 98–100 . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 101–114 . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Reg 472/2013/EU [2013] OJ L140/1 on the strengthening of economic and budgetary surveillance of Member States experiencing or threatened with serious difficulties with respect to their fnancial stability in the euro area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

lxxxviii

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Reg 473/2013/EU [2013] OJ L140/11 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area . . . . . . . . 209 Reg 526/2013/EU [2013] OJ L165/41 concerning the European Union Agency for Network and Information Security (ENISA) . . . . 157 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Reg 1271/2013/EU [2013] OJ L328/42 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 . . . . . . . . . . . . . . . . . . . . . . . . 188 Arts 5–28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 44–46 . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 45(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 46(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 82–84 . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Arts 107–111 . . . . . . . . . . . . . . . . . . . . . . . . . 189 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Reg 1303/2013/EU [2013] OJ L347/320 on common provisions on the European Regional Development Fund . . . . . . . . . . . 97 Arts 9–10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Arts 14–18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Arts 26–30 . . . . . . . . . . . . . . . . . . . . . . . . 98, 101 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 72–74 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Arts 110–111 . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 122–127 . . . . . . . . . . . . . . . . . . . . . . . . . 104 Arts 142–143 . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Reg 1306/2013/EU [2013] OJ L347/549 on financing, management and monitoring of the common agricultural policy . . . . . . . . 84 Reg 1307/2013/EU rules for direct payments to farmers [2013] OJ L347/608 . . . . . . . . . . . 83

Reg 2015/1589/EU [2015] OJ L248/9 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union . . . . . . . . . . . . . . . 396 Recital (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Recital (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Reg 2015/2219/EU [2015] OJ L319/1 on the European Union Agency for Law Enforcement Training (CEPOL) . . . . . . . 158 Reg 2015/2422/EU [2015] OJ L341/14 amending Protocol No 3 on the Statute of the Court of Justice of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Reg 2016/794/EU [2016] OJ L135/53 on the European Union Agency for Law Enforcement Cooperation (Europol) . . . 158 Reg 2016/796/EU [2016] OJ L138/1 on the European Union Agency for Railways . . 157 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Art 54(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Reg 2016/1192/EU [2016] OJ L200/137 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants . . . . . . 298 Reg 2016/1624/EU [2016] OJ L251/1 on the European Border and Coast Guard . . . . 157 Reg 2017/1001/EU [2017] OJ L154/1 on the European Union trade mark . . . . . . . . . . 156 Arts 66–73 . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Directives Dir 65/65/EEC [1965] OJ L22/369 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products, Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Dir 75/117/EEC [1975] OJ L45/19 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Dir 76/207/EEC [1976] OJ L39/40 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS and promotion, and working conditions . . . . . . . . . 589, 590, 675, 762, 767 Art 2(2)–(4) . . . . . . . . . . . . . . . . . . . . . . 676, 677 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . 590–3, 677 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 Dir 76/778/EEC [1976] OJ L262/169 on the approximation of the laws of the Member States relating to cosmetic products . . . . 681 Dir 79/7/EEC [1979] OJ L6/24 on the progressive implementation of the principle of equal treatment for men and women in matters of social security . . . . . . . . . . . . . . . . . . . . . . 765 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767 Dir 80/987/EEC [1980] OJ L283/23 on the approximation of the laws of the Member States relating to protection of employees in the event of the insolvency of their employer . . . . . . . . . . . . . . . . . . . . . . . . . . . 775 Dir 90/364/EEC [1990] OJ L180/26 on the right of residence . . . . . . . . . . . . . . . . . . . . . . . . 567 Dir 91/271/EEC [1991] OJ L135/40 concerning urban waste-water treatment . . . . . . . . . . 707 Dir 92/43/EEC [1992] OJ L206/7 on the conservation of natural habitats and of wild fauna and flora, Art 6(3) . . . . . . . . . 708, 709 Dir 93/13/EEC [1993] OJ L95/29 on unfair terms in consumer contracts, Art 10 . . . . . . 16, 772 Dir 93/36/EEC [1993] OJ L199/1 coordinating procedures for the award of public supply contracts [1993] OJ L199/1 . . . . . . . . . . . 769 Dir 93/96/EEC [1993] OJ L317/59 on the right of residence for students . . . . . . . . . . . . . . . . 569 Dir 96/34/EC [1996] OJ L145/4 on the Framework Agreement on Parental Leave . . . . . . . . . . . . . . . . . . . . . . . 20, 242, 248 Dir 96/61/EC [1996] OJ L257/26 concerning integrated pollution prevention and control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art 15a . . . . . . . . . . . . . . . . . . . . . . . . . . . 323, 328 Dir 97/80/EC [1998] OJ L14/6 on the burden of proof in cases of discrimination based on sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Dir 97/81/EC [1998] OJ L14/9 annex framework agreement on part-time work . . . . . . 20, 242 Dir 98/500/EC [1998] OJ L225/27 on the establishment of Sectoral Dialogue Committees promoting the Dialogue between the social partners at European level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Dir 1999/44/EC [1999] OJ L171/12 on certain aspects of the sale of consumer goods and associated guarantees, Art 11 . . . . . . . . . . 16

lxxxix

Dir 1999/70/EC [1999] OJ L175/43 concerning the Framework Agreement on Fixed-Time Work . . . . . . . . . . . . . . . . . . . . . . . 20, 242, 773 Dir 2000/31/EC [2000] OJ L178/1 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, Arts 16–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dir 2000/43/EC [2000] OJ L180/22 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Arts 2–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Arts 9–13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Dir 2000/78/EC [2000] OJ L303/16 establishing a general framework for equal treatment in employment and occupation . . . . . . . . . . 595 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Dir 2000/79/EC [2000] OJ L302/57 concerning the European Agreement on the organisation of working time of mobile workers in civil aviation concluded by the AEA, the ETF, the ECA, the ERA and the IACA . . 243 Dir 2001/83/EC [2001] OJ L311/67 on the Community code relating to medicinal products for human use, Art 28 . . . . . . . . 31 Dir 2002/21/EC [2002] OJ L108/33 Framework Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Dir 2002/22/EC [2002] OJ L108/51 Universal Service Directive . . . . . . . . . . . . . . . . . . . . . 24 Dir 2002/73/EC [2002] OJ L269/15 amending Council Directive 76/207/EEC . . . . . . . . 764 Dir 2003/35/EC [2003] OJ L156/17 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 Dir 2004/38/EC [2004] OJ L158/77 Citizenship Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

xc

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS

Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Dir 2005/29/EC [2005] OJ L149/22 concerning unfair business-to-consumer commercial practices in the internal market, Arts 11–13 . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dir 2006/54/EC [2006] OJ L204/23 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) . . . . . . . . . . . . . . 585, 678 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589, 593 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589 Dir 2008/1/EC [2008] OJ L24/8 concerning integrated pollution prevention and control (Codified Version) . . . . . . . . . . . . . . . . . . 323 Dir 2008/48/EC [2008] OJ L133/66 on credit agreements for consumers, Arts 22–24 . . 16 Dir 2008/50/EC [2008] OJ L152/1 Air Quality Directive Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Dir 2009/13/EC [2009] OJ L124/30 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC . . . . . . . . . . . . . . . . . . . . . . . . 242 Dir 2009/72/EC [2009] OJ L211/55 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC . . . . . . . . . . . . . . . . . . . . . . . . . 31 Dir 2009/140 [2009] OJ L337/37 amending Directive 2002/21/EC . . . . . . . . . . . . . . . . 323 Dir 2010/32/EU [2010] OJ L134/66 implementing the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU . . . . . . . . . . . . . 243 Dir 2011/85/EU [2011] OJ L306/41 on requirements for budgetary frameworks of the Member States . . . . . . . . . . . . . . . . . . . . . . 208 Decisions

Dec 87/373/EEC [1987] OJ L197/33 laying down the procedures for the exercise of implementing powers conferred on the Commission . . . . . . . . . . . . . . . . . . . . . 10, 118 Dec 88/591/ECSC [1988] OJ L319/1 establishing a Court of First Instance of the European Communities . . . . . . . . . . . . . . . . . . . . . . . 281

Dec 89/46/EEC [1989] OJ L17/53 on an action programme for European Tourism Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Dec 92/421/EEC [1992] OJ L231/26 on a Community action plan to assist tourism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Dec 93/350/ECSC [1993] OJ L144/21 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities . . . . . . . . . . . . . . . . . . . . . . . 281 Dec 93/731/EC [1993] OJ L340/43 on public access to Council documents . . . . . . . . . 390 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 Dec 94/90/EC [1994] OJ L46/58 on public access to Commission documents . . . . . . . . . . . 390 Dec 94/149/ECSC [1994] OJ L66/29 amending Council Decision 93/350 . . . . . . . . . . . . . 281 Dec 94/442/EC [1994] OJ L182/45 setting up a conciliation procedure in the context of the clearance of accounts of the EAGGF Guarantee Section . . . . . . . . . . . . . . . . . . . . 88 Dec 94/819/EC [1994] OJ L340/8 establishing an action programme for the implementation of a European Community vocational training policy . . . . . . . . . . . . . . . . . . . . . . . 40 Dec 1999/24/EC [1999] OJ L7/28 adopting a multi-annual programme of technological actions promoting the clean and efficient use of solid fuels . . . . . . . . . . . . . . . . . . . . . 68 Dec 99/468/EC [1999] OJ L184/23 laying down the procedures for the exercise of implementing powers conferred on the Commission . . . . . . . . . . . . . . . 120, 121, 127 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 5a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Dec 2000/820/JHA [2000] OJ L336/1 establishing a European Police College (Cepol) . . . . . 158 Dec 2001/470/EC [2001] OJ L174/25 establishing a European Judicial Network in civil and commercial matters . . . . . . . . . . . . . . . . . . 34 Dec 2001/937/EC [2001] OJ L345/94 amending its Rules of Procedure . . . . . . . . . . . . . . . . 392 Dec 2002/187/JHA [2002] OJ L63/1 setting up Eurojust with a view to reinforcing the fight against serious crime . . . . . . . . . . . . . . . . 159 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Dec 2002/682/EC [2002] OJ L230/7 adopting the Council’s Rules of Procedure . . . . . . . . . . 392

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

TABLES OF LEGISLATION, TREATIES, AND CONVENTIONS Dec 2003/174/EC [2003] OJ L70/31establishing a Tripartite Social Summit for Growth and Employment . . . . . . . . . . . . . . . . . . . . . . . 244 Dec 2003/578/EC [2003] OJ L197/13 on guidelines for the employment policies of the Member States . . . . . . . . . . . . . . . . . . . 212 Dec 2003/1230/EC [2003] OJ L176/29 . 68, 70, 71 Dec 2003/2317/EC [2003] OJ L345/1 establishing a programme for the enhancement of quality in higher education and the promotion of inter-cultural understanding through co-operation with third countries (Erasmus Mundus) (2004 to 2008) . . . . . . 73 Dec 2003/2318/EC [2003] OJ L345/9 adopting a multi-annual Programme (2004 to 2006) for the effective integration of information and communication technologies (ICT) in education and training systems in Europe Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72–3 Dec 2004/20/EC [2004] OJ L5/85 setting up an Executive Agency to manage Community action in the feld of energy . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 71 Arts 3–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Arts 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Arts 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Dec 2004/100/EC [2004] OJ L30/6 establishing a Community action programme to promote active European citizenship . . . . . . . . . . . . 72 Dec 2004/407/EC [2004] OJ L132/5 amending Articles 51 and 54 of the Protocol of the Statute of the Court of Justice . . . . . . . . . 290 Dec 2004/2241/EC [2004] OJ L390/6 on a single Community framework for the transparency of qualifications (Europass) . . . . . . 389 Dec 2005/56/EC [2005] OJ L24/35 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 71

xci

Dec 2006/512/EC [2006] OJ L200/11 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers by the Commission . . . . . . . . . . . 121 Dec 2006/1982/EC [2006] OJ L412/1 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities . . . . . . . . . . . . . . . . . . . . . . . . 15 Dec 2007/1350/EC [2007] OJ L301/3 establishing a second programme of Community action in the field of health Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dec 2008/1298/EC [2008] OJ L340/83 establishing the Erasmus Mundus 2009–2013 action programme for the enhancement of quality in higher education and the promotion of intercultural understanding through cooperation with third countries . . . . . . . 73 Dec 2009/336/EC [2009] OJ L101/26 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture . . . . . . 71 Dec 2009/371/JHA OJ 121/37 establishing a European Police Office (Europol) . . . . . . 158 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Arts 10–13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Dec 2013/776/EU [2013] OJ L343/46 . . . . . . . . 71 Dec 2014/401/CFSP [2014] OJ L188/73 on the European Union Satellite Centre . . . . . . 158 Dec 2015/773/EU [2015] OJ L121/16 establishing the Social Protection Committee and repealing Decision 2004/689/EC . . . . . . 215 Dec 2016/1859/EU [2016] OJ L284/27 on the Tripartite Social Summit for Growth and Employment and repealing Decision 2003/174/EC . . . . . . . . . . . . . . . . . . . . . . . 244

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

ABBREVIATIONS AAR Annual Activity Report ABM activity-based management ACER Agency for Cooperation of Energy Regulators ACT advance corporation tax AFSJ Area of Freedom, Security and Justice AMP Annual Management Plan APA Administrative Procedure Act 1946 (US) BEPG broad economic policy guideline BoA board of appeal CAP Common Agricultural Policy CdT Translation Centre for Bodies of the European Union Cedefop European Centre for the Development of Vocational Training CEEP European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest CEN European Committee for Standardization CENELEC European Committee for Electrotechnical Standardization CF Cohesion Fund CFCA Community Fisheries Control Agency CFI Court of First Instance CFSP Common Foreign and Security Policy CHAFEA Executive Agency for Consumers, Health, Education and Food CJEU Court of Justice of the European Union CPMP Committee for Proprietary Medicinal Products CPVO Community Plant Variety Office CRD comment response document CSF Community Support Framework CT Constitutional Treaty DG Directorate-General EACEA Education, Audiovisual and Culture Executive Agency EACI Executive Agency for Competitiveness and Innovation EAFRD European Agricultural Fund for Rural Development EAGF European Agricultural Guarantee Fund EAGGF European Agricultural Guidance and Guarantee Fund EAHC Executive Agency for Health and Consumers EAR European Agency for Reconstruction EASA European Aviation Safety Agency EASME Executive Agency for Small and Medium-Sized Enterprises EAW European Arrest Warrant EBA European Banking Authority EC European Community ECB European Central Bank

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

xciv

ABBREVIATIONS

ECC-Net European Consumer Centres Network ECDC European Centre for Disease Prevention and Control ECHA European Chemicals Agency ECHO European Community Humanitarian Assistance Office ECHR European Convention on Human Rights ECJ European Court of Justice ECOFIN Economic and Financial Affairs Council ECOSOC European Economic and Social Committee ECSC European Coal and Steel Community ECtHR European Court of Human Rights EDA European Defence Agency EEA European Environment Agency EEC European Economic Community EES European Employment Strategy EFSA European Food Safety Authority EG employment guidelines Eionet European Environment Information and Observation Network EIOPA European Insurance and Occupational Pensions Authority EMA European Medicines Agency EMCDDA European Monitoring Centre for Drugs and Drug Addiction EMEA European Medicines Evaluation Agency EMSA European Maritime Safety Authority EMU Economic and Monetary Union ENISA European Network and Information Security Agency EPC European Political Community ERA European Railway Agency ERCEA European Research Council Executive Agency ERDF European Regional Development Fund ESA European Supervisory Authority ESF European Social Fund ESM European Stability Mechanism ESMA European Securities and Markets Authority ESRB European Systemic Risk Board ETF European Training Foundation ETUC European Trade Union Confederation EU European Union EUISS European Institute for Security Studies EUMC European Monitoring Centre for Racism and Xenophobia EU-OSHA European Agency for Health and Safety at Work Eurofound European Foundation for the Improvement of Living and Working Conditions EUSC European Union Satellite Centre FP7 7th multi-annual programme FRA European Union Agency for Fundamental Rights Frontex European Border and Coast Guard Agency GATT General Agreement on Tariffs and Trade

OUP UNCORRECTED PROOF– FINAL, 11/10/18, SPi

ABBREVIATIONS GC GDP IGC IIWG IPM INEA JHA MCA MEP MTO NAP NCA NGO NSRF OFT OHIM OLAF OMC OSHA PJCC REA SCAN SEA SGP SRM TAO TEU TFEU TFRA TSCG UCLAF UEAPME UNICE WTO

General Court gross domestic product Intergovernmental Conference inter-institutional working group Interactive Policy Making Executive Agency for Innovation and Networks Justice and Home Affairs monetary compensation amount Member of the European Parliament medium-term budgetary objective national action plan national competition authority non-governmental organization National Strategic Reference Framework Office of Fair Trading Office for Harmonization in the Internal Market European Anti-Fraud Office Open Method of Coordination European Agency for Safety and Health at Work Police and Judicial Cooperation in Criminal Matters Research Executive Agency Scientific Committee for Animal Nutrition Single European Act 1986 Stability and Growth Pact Single Resolution Mechanism technical assistance office Treaty on European Union Treaty on the Functioning of the European Union Task Force for Administrative Reform Treaty on Stability, Coordination and Governance Unité de coordination de lutte anti-fraude European Association of Craft, Small and Medium-Sized Enterprises Union of Industrial and Employers’ Confederations of Europe World Trade Organization

xcv

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

PART I

ADMINISTRATION AND LAW

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

1 History and Typology 1 Introduction This book is concerned with EU administrative law, which includes analysis of the main forms of administration through which policy is delivered, as well as the ­principles of judicial review. This is the rationale for the heading ‘Administration and Law’, which covers Chapters 1–8. The starting point in each chapter is to understand the particular form of EU administration, and appreciate the relevant political and legal issues. The chapters thereafter deal with ‘Law and Administration’, where the ­primary focus is on the principles of judicial review as they are applied to EU administration and national administration when it falls within the ambit of EU law. It is fitting, therefore, to begin with an understanding of the history and typology of EU administration. There is a rich and growing body of literature dealing with the nature of EU administration.1 The present analysis starts by considering the evolution 1  S Cassese, ‘Il sistema amministrativo europeo e la sua evoluzione’ (1991) Rivista Trimestrale di Diritto Pubblico 769; C Franchini, ‘L’impatto dell’integrazione comunitaria sulle relazioni al vertice dell’amministrazione. Poteri governativi e poteri amministrativi’ (1991) Rivista Trimestrale di Diritto Pubblico 775; E SchmidtAßmann, ‘Verwaltungskooperation und Verwaltungskooperationsrecht in der Europäischen Gemeinschaft’ (1996) Europarecht 270; S Cassese, ‘La signoria comunitaria sul diritto amministrativo’ (2002) Rivista Italiana di Diritto Pubblico Comunitario 291; E Chiti and C Franchini, L’Integrazione Amministrativa Europea (Il Mulino, 2003); C Franchini, ‘I principi applicabili ai procedimenti amministrativi europei’ (2003) Rivista Italiana di Diritto Pubblico Comunitario 1037; S Cassese, ‘Diritto amministrativo europeo e diritto amministrativo nazionale: signoria o integrazione?’ (2004) Rivista Italiana di Diritto Pubblico Comunitario 1135; S Cassese, ‘European Administrative Proceedings’ (2004) 68 LCP 21; E Chiti, ‘Forms of European Administrative Action’ (2004) 68 LCP 37; G della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (2004) 68 LCP 197; C Franchini, ‘European Principles Governing National Administrative Proceedings’ (2004) 68 LCP 183; E Chiti, ‘Administrative Proceedings involving European Agencies’ (2004) 68 LCP 219; M Egeberg (ed), Multilevel Union Administration: The Transformation of Executive Politics in Europe (Palgrave Macmillan, 2006); S Cassese, ‘Diritto amministrativo comunitario e diritti amministrativi nazionali’ in M Chiti and G Greco (eds), Tratatto di diritto amministrativo europeo (Giuffrè, 2007) Vol I, 1–13; H Hofmann and A Türk, ‘The Development of Integrated Administration in the EU and its Consequences’ (2007) 13 ELJ 253; G della Cananea (ed), Diritto amministrativo europeo: principi e istituti (Giuffrè, 2nd edn, 2008); D Curtin and M Egeberg (eds), Towards a New Executive Order in Europe? (2008) 31(4) West European Politics; D Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford University Press, 2009); G della Cananea, Diritto amministrativo europeo: principi ed istituti (Giuffrè, 3rd edn, 2011); H Hofmann, G Rowe, and A Türk, Administrative Law and Policy of the European Union (Oxford University Press, 2011); C Harlow, ‘Three Phases in the Evolution of EU Administrative Law’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2nd edn, 2011); E Schmidt-Aßmann, ‘Introduction: European

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

4

ADMINISTRATION AND LAW

of EU administration. The focus then shifts to typology, and the features that distinguish different types of EU administration. It would be impossible within this chapter to chart the administrative regime for all areas of EU law. Nor would such an exercise be especially fruitful. The objective is rather to analyse the evolution of EU administration by considering the principal stages of its development.2 The ensuing analysis takes as its ‘staging posts’ the original Rome Treaty and later Treaty amendments, and considers the evolution of EU administration in each of these periods.

2  The Rome Treaty and the Early Years: The Origins of Centralized and Shared Administration and Comitology It is axiomatic that Community law had to be implemented and applied. This obvious fact was not lost on the founders of the Rome Treaty, but it nonetheless contained relatively little detail as to how this was to be accomplished. The primary Treaty, and regulations made thereunder in the early years of the EEC, laid the foundations for the pattern of Community centralized and shared administration that developed t­ hereafter.

(A)  The Rome Treaty In terms of the primary Treaty, the first indent of Article 155 EEC instructed the Commission to ensure that the provisions of the Treaty and the measures taken by the  institutions pursuant thereto were applied, while the third indent accorded the Commission its own power of decision in the manner provided for in the Treaty. Article 155 EEC thus accorded the primary responsibility for the application and implementation of EEC law to the Commission, while providing little in the way of detail as to how this should be done. It is important to stress the breadth of Article 155 EEC, more especially the first indent. It is arguable that the Treaty could have been interpreted to vest the Commission Composite Administration and the Role of European Administrative Law’ in O Jansen and B SchöndorfHaubold (eds), The European Composite Administration (Intersentia, 2011) Ch 1; R Seerden (ed), Administrative Law of the European Union, its Member States and the United States (Intersentia, 2012); C Harlow and R Rawlings, Process and Procedure in EU Administration (Hart, 2014); J-B Auby and J Dutheil de la Rochère (eds), Traité de droit administratif européen (Bruylant, 2nd edn, 2014); P Birkinshaw, European Public Law (Wolters Kluwer, 2nd edn, 2014); M Chiti (ed), Diritto Amministrativo Europeo (Giuffrè, 2013); L de Lucia and B Marchetti (eds), L’amministrazione europea e le sue regole (Il Mulino, 2015); C Harlow, P Leino, and G della Cananea (eds), Research Handbook on EU Administrative Law (Edward Elgar, 2017); Symposium of articles in (2017) 2 Rivista Italiana di Diritto Pubblico Communitario; S Alonso de Leon, Composite Administrative Procedures in the European Union (Iustel, 2017). 2  See in particular, Chiti and Franchini, L’Integrazione Amministrativa Europea (n 1).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

5

with power to engage directly in the administration of Community policy within the Member States, through the establishment of Community agencies in each Member State to implement Community regulations. This was more especially so given that the operative part of Article 155 included implementation of measures adopted by the Community institutions, thereby vesting the Commission with the power and duty to ensure the application of the plethora of regulatory measures that constituted the Community’s principal output. The fact that it did not do so was because of a conjunction of the practical and the normative. In practical terms, it rapidly became clear that working with and through Member State administrations was the optimal method of implementing EEC policy, more especially given the limited manpower resources within the Commission itself. The nature of the relationship with Member State administrations varied depending upon the subject matter, as the following discussion makes clear. In normative terms, the Treaty framers’ preference was for a concept of executive federalism that entailed limited power for the Commission to engage in direct administrative action, the assumption being that Member States had the principal responsibility for implementation of EU law, including the administration thereof.3 This normative schema was in turn reinforced through ECJ rulings that emphasized the separation between the EU and national administration.4 This vision was further reinforced in Article 291 TFEU, which embodies the assumption that Member States have responsibility for implementation of EU law, except where uniform conditions for implementation are required. The very meaning of this concept of executive federalism is, however, less certain and more problematic than is commonly imagined, even more so when it is depicted as a constitutional precept. This is in part because it did not fit with the pattern of Community legislation that developed thereafter, and in part because of normative ambiguities that inhere in the meaning of the concept.5 The pattern of EU administration that developed over time varied, as the subsequent discussion will reveal. A common theme that recurs throughout is, nonetheless, the interrelationship between national and EU administration in the delivery of Community/EU policy. Thus, while the initial model of executive federalism may well have been predicated on assumptions concerning the separation and divisibility  between national and EU administration, the practical reality as embodied in Community regulatory schema across a variety of areas, was for administration to be shared or composite, in the sense that national and EU administration were accorded legal and practical responsibilities for the discharge of the particular regulatory scheme.

3  F Brito Bastos, ‘Beyond Executive Federalism, the Judicial Crafting of the Law of Composite Administrative Decision-Making’, PhD Thesis, EUI (2018) Ch 2. 4  Bastos (n 3) Ch 2; Case 6/60 Humblet, EU:C:1960:48; Cases 205–215/82 Deutsche Milchkontor, EU:C:1983:233, [17]; Case T-54/96 Oleifici Italiani, EU:T:1998:204, [51]–[57]. 5  P Craig, ‘Executive Federalism and the EU: Concept, Meaning and Application’, forthcoming; Leon (n 1) Ch 2.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

6

ADMINISTRATION AND LAW

(B) Competition: Centralized Administration, Limited Parallelism, and Liaison Articles 85 and 86 EEC contained the substantive rules of competition law for cartels and firms in a dominant position respectively. The Council was obliged within three years of the entry into force of the Treaty to adopt regulations or directives to ensure the application of Articles 85 and 86.6 Pending the entry into force of such measures the Member States retained the power to rule on cartels and dominant positions in accord with their own law and in accord with Articles 85 and 86.7 The Commission was, nonetheless, instructed to apply Articles 85 and 86 as soon as it took office and to cooperate with the Member States in the investigation of matters covered by these Articles. Regulation 17 was duly enacted in 1962.8 The Regulation established the regime of notification, as qualified by negative clearance, and accorded the Commission exclusive power to adjudicate on Article 85(3) EEC.9 This regime remained largely unchanged until the reforms of the new millennium.10 The administration of competition law is sometimes regarded as a paradigm of centralized administration, in the sense that the Commission was empowered to determine infringements of Articles 85 and 86, and more generally to develop the precepts of competition law. This is true, and it warrants the appellation of centralized administration to this aspect of Community policy. It nonetheless only captures part of the original schema embodied in Regulation 17. The pattern of administration established under Regulation 17 was more complex and interesting in two respects. The competition authorities of the Member States retained a limited parallel administrative competence to adjudicate on Articles 85(1) and 86. Thus provided that the Commission had not initiated any procedure relating to negative clearance, condemnation of the cartel, or exemption, the Member States remained competent to apply Articles 85(1) and 86.11 This was important since it quickly became apparent that the Commission could not cope with all notifications of cartels even from the original six Member States. Thus, public enforcement of EEC competition law by the Commission was complemented by public enforcement through national competition authorities. Empowering Member State authorities to administer Community law precepts in order better to ensure its overall efficacy has become an enduring feature of Community administration. Regulation 17 also provided for liaison and assistance between Community and Member State administrations. There were various facets of this relationship. Thus Regulation 17 provided for information flows between the Commission and Member 6  Art 87 EEC.    7  Art 88 EEC. 8  EEC Council Regulation No 17, First Regulation implementing Articles 85 and 86 of the Treaty [1962] OJ L13/204. 9  Art 85(3) allowed for the exemption of cartels that were within Art 85(1). 10  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1. 11  EEC Council Regulation No 17 (n 8) Art 9(3).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

7

States concerning notifications and ongoing Commission investigations, and for an Advisory Committee on Restrictive Practices and Monopolies composed of national representatives competent in the matter of restrictive practices and monopolies, which was consulted prior to the taking of any Commission decision concerning Articles 85 and 86.12 Regulation 17 also made provision for Commission access to information from governments, competent authorities of the Member States and from undertakings and associations of undertakings.13 The competent authorities of the Member States were required, at the Commission’s request, to undertake the investigations which the Commission considered to be necessary for the purposes of proving an infringement of Articles 85 and 86. Thus while the Commission was given its own extensive powers to conduct investigations into companies within Member States, it could call on Member State authorities for assistance in this regard.14

(C)  Agriculture: Shared Administration and the Birth of Comitology Shared administration has been central to the pattern of Community administration ever since the inception of the EEC. It was the administrative mode used for issues such as customs, with Community legislation being applied by national customs authorities.15 It was also the administrative technique used for the Common Agricultural Policy (CAP), the Treaty foundations of which have not altered in substance since the inception of the Community. The objectives of the CAP were originally laid down in Article 39(1) EEC. They were: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilization of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilize markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. It is clear that these objectives are set out at a high level of generality, and that they can conflict. Decision-making in this area has, therefore, always necessitated a balancing of  the factors listed in Article 39(1) EEC, and the Council was accorded power, on a  proposal from the Commission, to make regulations, directives, and decisions to this end.16 12  Ibid Art 10. 13  Ibid Art 11. 14  Ibid Arts 13, 14. 15  Council Regulation (EEC) 2913/92 of 12 October 1992 establishing the Community Customs Code [1992] OJ L302/1; Commission Regulation (EEC) 2454/93 of 2 July 1993 laying down provisions for the ­implementation of Council Regulation (EEC) 2913/92 establishing the Community Customs Code [1993] OJ L253/1. There have been many subsequent amendments. 16  Art 43(2) EEC.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

8

ADMINISTRATION AND LAW

The principal focus of CAP policy for many years was on price support.17 The Council established common prices for most agricultural goods. There was a target price, this being the price that it was hoped farmers would be able to obtain on the open market. There was an intervention price, which was the price at which the Commission would buy up produce from the market. There was also a threshold price, this being the price to which imports were raised when world prices were less than those prevailing in the EC. The price support system proved very costly for the Community, consuming the largest share of the Community’s budget. The Community therefore adopted a variety of measures to ameliorate the consequences of the CAP price support regime. Quotas and the like were introduced to reduce the impact of the system. The degree of price support for particular agricultural goods was reduced. Farmers were encouraged to set aside certain farmland and hence reduce production. There has more recently been a shift from price support to income support. We are, however, concerned here with the pattern of administration under the CAP and what it tells us more generally about the interrelationship between Community and national administration. It is significant in two respects: it was the early paradigm for shared administration, and it was the birthplace of Comitology. These will be ­considered in turn. The CAP was an early paradigm for shared administration: the Commission and the  Member States had distinct administrative tasks, which were nonetheless interdependent, and were set down in legislation and where both had to discharge their respective tasks for the Community policy to be implemented successfully.18 Thus, the administration of the CAP was ‘shared’, since the various forms of price support payments were administered jointly by the Commission and the Member States.19 This was done initially through the European Agricultural Guidance and Guarantee Fund (EAGGF). The main enabling provision was Regulation 729/70.20 The Member States designated the bodies within their countries that would make the payments covered by the Guarantee section,21 and the Commission would make the funds available to the Member States for disbursement by those bodies.22 The Member States were under an obligation to take the necessary measures to satisfy themselves that the transactions financed by the Fund were carried out correctly; to prevent and deal with irregularities; and to recover sums lost as a result of irregularities or negligence.23 However, in the absence of total recovery, the financial consequences of irregularities 17  W Grant, The Common Agricultural Policy (Macmillan, 1997); R Fennell, The Common Agricultural Policy: Continuity and Change (Clarendon Press, 1997); J McMahon, Law of the Common Agricultural Policy (Longman, 2000); M Cardwell, The European Model of Agriculture (Oxford University Press, 2004). 18 Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [3.2.2]. 19  Ibid [3.6.3]. 20  Council Regulation 729/70/EEC on the financing of the Common Agricultural Policy [1970] OJ L94/13. 21  Ibid Art 4(1). 22  Ibid Art 4(2). 23  Reg 729/70 (n 20) Art 8(1).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

9

or negligence were borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative bodies of the Member States.24 The Member States and the Commission had the power to carry out inspections to ensure the probity of the transactions financed by the Fund.25 In addition to the provisions of Regulation 729/70, the protection of the Community Budget was to be secured through the system of clearance of accounts. The difficulties with this regime of shared administration are not our immediate concern.26 What is apposite is the way in which the CAP exemplified the regime of shared administration that has since been adopted in other areas, as will be seen later. The rationale for this form of administration was not difficult to discern. The price ­support regime required multiple complex payments to farmers throughout the Community. It could not conceivably be undertaken by the Commission itself. The Commission therefore operated by and through national bureaucracies, which often established a specialist national agency to discharge the duties. The very fact that the Member States’ duties were formally enshrined in Community regulations served to sharpen the duality of the responsibility for implementation of the policy. The CAP is also of more general significance in relation to the pattern of Community administration because it gave birth to Comitology.27 It rapidly became clear that the administration of the CAP would require the deployment of detailed rules in everchanging market circumstances. Recourse to primary legislation on all such occasions was impracticable. It was equally apparent that the Member States were wary of according the Commission a blank cheque over the making of implementing rules, especially given that power once delegated without encumbrance would generate legally binding rules without further possibility of Council oversight. This wariness was heightened by tensions between the Council and the Commission in the mid-1960s leading to the Luxembourg Crisis and subsequent Accords. The newly emergent committee system was also conceived as a way of dealing with ­disagreements between the Member States themselves. The net result was the birth of the management committee procedure, embodied in the early agricultural regulations.28 Involvement in the making of the implementing rules facilitated interaction between national administrators who would be responsible for the application of the  rules at national level. The committee methodology spread rapidly to other areas,  and became a standard feature attached to the delegation of power to the Commission.29 24  Ibid Art 8(2). 25  Ibid Art 9. 26  Ch 4. 27  C Bertram, ‘Decision-Making in the EEC: The Management Committee Procedure’ (1967–8) 5 CMLRev 246; P Schindler, ‘The Problems of Decision-Making by Way of the Management Committee Procedure in the EEC’ (1971) 8 CMLRev 184; C-F Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005) Ch 2. 28  See, eg, Council Regulation 19/62/EEC of 4 April 1962 on the progressive establishment of a common organisation of the market in cereals [1962] OJ 30/933, Arts 25–26. 29  See, eg, Council Regulation 802/68/EEC of 27 June 1968 on the common definition of the concept of the origin of goods [1968] OJ L148/1, Arts 12–14.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

10

ADMINISTRATION AND LAW

3  The Single European Act and the Revitalization of the Community: Shared Administration, Agencies, and Networks (A)  The Single European Act and the Recognition of Comitology The 1970s and early 1980s were a difficult period for the EEC. The reasons are ­complex and cannot be examined in detail here. Suffice it to say that the net effect was that Community objectives laid down in the Rome Treaty that were to be carried forward through regulations and directives were stalled, often because of Council resistance to Commission proposals. The Single European Act 1986 (SEA) sought to revitalize the Community, thereby enabling it to complete the single market. The introduction of Article 100a, now Article 114 TFEU, allowing harmonization measures to be enacted through qualified majority, rather than unanimity, was central in this respect. It accorded the European Parliament its first real contribution to the legislative process through the creation of the cooperation procedure in what was Article 149 EEC, and served to legitimate the initiatives enacted under Article 100a EEC. We are concerned here with the effect of these changes on the pattern of Commu­ nity administration. The SEA, like the Rome Treaty, said little about the pattern of Community administration. It did, however, provide foundation for the Comitology procedures that had developed rapidly since their invention in the early 1960s. Thus Article 145 EEC was amended. The third indent stated that: the Council could confer on the Commission, in the acts which the Council adopted, powers for the implementation of the rules which the Council laid down; that the Council could impose certain requirements on the exercise of these powers; and that it could reserve the right, in  ­specific cases, to exercise implementing powers itself. The ­procedures were to be ­consonant with principles and rules laid down in advance by  the Council. The first Comitology decision establishing these principles was duly  adopted by the Council in 1987, and sought to rationalize the committee ­structure.30 Aside from the impact on Comitology, the SEA had little directly to say concerning Community administration. This was to be developed by the Community institutions on a sectoral basis. The pattern of Community administration created after the SEA was a blend of the old and the new. This was triggered by the need for administrative mechanisms to cope with new competences granted to the Community by the SEA, most notably in the sphere of economic and social cohesion, environment, and research and technological development.

30  Decision 87/373/EEC, Council Decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission [1987] OJ L197/33.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

11

(B) Economic and Social Cohesion: The Extension of Shared Administration The original Rome Treaty contained no specific commitment to adjust the imbalance between the regions in Europe,31 although Article 2 EEC contained within the list of Community objectives the promotion of a harmonious development of economic activities and a continuous and balanced expansion. There were some developments in Community regional policy prior to 1986, as exemplified by the creation of a European Regional Development Fund (ERDF) in 1974–5. The SEA was, however, a major catalyst in this respect. Reform of Structural Fund policy was a consequence of the drive to complete the internal market, since such reform was seen as necessary to ensure the acceptability of the market-based initiatives contained in the SEA. There were fears that the wealthier economies would benefit from the completion of the single market, with the consequence that the gap between them and the less advantaged economies would widen. Reform of the Structural Funds was seen as one way of alleviating these concerns. The Treaty was, therefore, amended through the inclusion of new articles under the Title of Economic and Social Cohesion,32 through which the Community aimed to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions. The attainment of these aims was to be supported through the Structural Funds.33 The detailed operation of this regime was set out by Regulation 2052/88,34 which identified the principal objectives and tasks of the Funds.35 A number of principles were central to the 1988 scheme. The new regulations were premised on concentration, this connoting the idea that funding should be allocated to the areas in greatest need; additionality connoted the idea that Community funding had a genuine additional impact in the regions concerned; partnership captured the idea that Community operations were to be established through close consultations between the Commission, the Member State concerned, and the competent authorities designated by the latter at  national, regional, and local level; and programming connoted the principle that 31  G Marks, ‘Structural Policy in the European Community’ in A Sbragia (ed), Euro Politics: Institutions and Policymaking in the ‘New’ European Community (Brookings Institution, 1992); J Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Open University Press, 1995); L Hooghe (ed), Cohesion Policy and European Integration (Oxford University Press, 1996); I Bache, The Politics of European Union Regional Policy: Multi-Level Governance or Flexible Gatekeeping? (Sheffield Academic Press, 1998); T Christiansen, ‘Territorial Politics in the EU’ (1999) 6 JEPP 349; J Scott, ‘Regional Policy: An Evolutionary Perspective’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 17; A Evans, The EU Structural Funds (Oxford University Press, 1999). 32  Art 130a EEC, now Art 174 TFEU. 33  The European Agricultural Guidance and Guarantee Fund, Guidance Section (EAGGF); the European Social Fund (ESF); and the European Regional Development Fund (ERDF). 34 Council Regulation (EEC) 2052/88 of 24 June 1988 on the tasks of the structural funds and their ­effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9. 35  Ch 4.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

12

ADMINISTRATION AND LAW

funding would be given for a period of years, and that the different players of the ­partnership would interrelate. The Community Support Framework was central to the modus operandi of the Funds. The regime of shared administration in the 1988 regulations entailed formal shared responsibility between Member States and Commission in relation to both input and output. Thus, in relation to input it was the Member States who submitted their regional development plans to the Commission, which then reviewed the plans for conformity with the Regulation. It then established in agreement with the Member State the Community Support Framework (CSF) for Community Structural Fund operations, which specified the priorities adopted for Community assistance, the form of the ­assistance, its duration, and the financing plan. There was then more detailed ­elaboration of the operational programmes given the green light by the CSF. In relation to output, it was the Member States who were accorded initial responsibility for ensuring that Community funds for particular projects were properly expended, subject to constraints in Community regulations as to how this should be  done, in order to minimize the possibility of fraud and mismanagement. The Commission was also empowered to recover funds that were improperly expended. The very fact that shared administration related to the input and output stage is ­significant. Its application to the input stage was designed to enable Member State ­preferences as to the projects that would be funded to be taken into account, provided they were consonant with the objectives in the 1988 regulations. The application of shared administration to the output stage reflected the fact that the Commission did not possess the resources to monitor in detail all projects that received Community funding, hence the allocation of responsibility to the Member States, while preserving the Commission’s right to take legal action to recover funds improperly expended.

(C) Environmental Policy: Agency Creation and Shared Administration While concern for environmental protection was reflected in the Rome Treaty and while environmental initiatives had been enacted prior to 1986, it was the SEA that provided a more secure foundation for Community environmental policy through the addition of a specific title on the environment.36 The Community was ‘to preserve, protect and improve the quality of the environment, to contribute towards protecting human health, and to ensure a prudent and rational utilization of natural resources’,37 but the Community could only intervene in environmental matters when this action could be attained better at Community rather than national level, hence embodying a principle of subsidiarity. The pattern of Community administration for this area is interesting in two respects. 36  Arts 130r, 130s, and 130t EEC.

37  Art 130r EEC.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

13

The first is that an environment agency was created. Two agencies had been created in 1975,38 but the establishment of the European Environment Agency (EEA)39 was nonetheless the beginning of the wave of agency creation that occurred in the 1990s. The EEA’s task is to provide sound, independent information on the environment, for those involved in developing, adopting, implementing, and evaluating environmental policy. The EEA works in a number of thematic areas: tackling climate change; tackling biodiversity loss and understanding spatial change; protecting human health and ­quality of life; and use and management of natural resources and waste. The enabling regulation also provided the foundations for the European Environment Information and Observation Network (Eionet).40 The EEA provided a model for many of the subsequent agencies: a body whose primary remit was to gather and coordinate information in order to assist Community policymakers to make informed choices concerning the environment. To this end it was assisted by a network of bodies at national level, which were also concerned with the environment. The combination of Community agency assisted by national network was to be replicated in many subsequent agencies. The second reason why administration of environmental policy is instructive is that it reveals the different forms of shared administration when hard law is enacted. This can be exemplified by a brief look at the 2008 Directive on Air Quality,41 which brought together earlier more specific Directives on air quality. The Directive set certain targets and ceilings in relation to air quality and pollutants, and imposed obligations to develop air quality plans for certain areas where the pollutants in ambient air exceeded relevant target or limit values. Member States played an important role in the administration of the Directive. They had to designate competent authorities, which were responsible for:42 assessment of ambient air quality; approval of measurement systems; ensuring the accuracy of measurements; analysis of assessment methods; coordination on their territory if Community-wide quality assurance programmes are organized by the Commission; and cooperation with the other Member States and the Commission. Member States had the obligation to provide for penalties for breach of the national provisions adopted pursuant to the Directive, which had to be effective, proportionate, and dissuasive.43 The Directive also established horizontal links between the Member States because of the transboundary nature of pollution. Thus where any alert threshold, limit, or target value is exceeded due to significant transboundary transport of air pollutants, the 38  Council Regulation 337/75/EEC of 10 February 1975 establishing a European Centre for the Development of Vocational Training [1975] OJ L39/1; Council Regulation 1365/75/EEC of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions [1975] OJ L139/1. 39  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1. 40  Ibid Art 4. 41  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe [2008] OJ L152/1. 42  Ibid Art 3. 43  Ibid Art 30.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

14

ADMINISTRATION AND LAW

Member States concerned had to cooperate and, where appropriate, draw up joint activities, such as joint or coordinated air quality plans.44 It is readily apparent that the objectives of the 2008 Directive could only be attained by co-opting and imposing obligations on national administrations. It would be impossible for the Commission to carry out the detailed measurements required to render the Directive effective, and even more impossible for it to devise detailed plans to combat air pollution where the target levels were not met. Hence the requirement that the Member States had to designate bodies responsible for carrying out many of the primary empirical tasks under the Directive, for checking the analysis of the assessment methods and for devising the relevant plans where they are needed. The obligation on Member States to provide penalties for breach of the national implementing law, subject to the condition that they were effective, proportionate, and dissuasive, ­obviated the need for the Community to devise a uniform set of remedial penalties, which would have been difficult given the varied nature of the primary obligations imposed on the Member States. The Directive also provided an interesting example of  horizontal cooperation between Member States necessitated by the cross-border nature of pollution.

4  The Maastricht Treaty, Pillarization, and Extension of Competence: Centralized Administration, Shared Administration, and Agencies (A)  The Maastricht Treaty The Maastricht Treaty made significant changes to the previous Treaty regime. The Treaty on European Union, which embodied the Pillar system, was formally distinct from the EEC Treaty, which was renamed the EC Treaty. The TEU introduced complex new provisions concerning Common Foreign and Security Policy, Pillar 2, and Justice and Home Affairs, Pillar 3. The amended version of the EC Treaty contained important institutional provisions extending the powers of the European Parliament. It also made far-reaching changes to the substantive scope of the EC, laying the Treaty foundations for economic and monetary union, while adding and modifying heads of Community competence, in areas such as health, consumer protection, culture, and education and vocational training. The Maastricht Treaty introduced new heads of competence for the EC, and modified certain existing heads of competence. Many heads of competence were shared rather than exclusive, because of constitutional limits laid down in the relevant Treaty article. Thus, what Schutze describes as

44  Ibid Art 25(1).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

15

cooperative federalism45 was increasingly constitutionalized since the SEA. It operated in two ways. In some areas, such as the environment and social policy, the Treaty mandated that the Community set minimum requirements only. In other areas, such as research and technological development, health, and culture, the Treaty stipulated that the Community should ‘complement’ or ‘supplement’ national action. It is the implications of these Treaty changes for the pattern of Community administration that we are concerned with here.

(B) Research, Technological Development, and Health: The Extension of Centralized Administration In some instances, it led to centralized administration by the Commission assisted by executive agencies and advisory bodies, as in the area of research and technological development. This is exemplified by the administration of the multi-annual research programme made pursuant to what is now Article 182 TFEU.46 Thus grants and awards under the 7th multi-annual programme (FP7) that ran from 2007–13, were administered by the Commission. It was, however, assisted by the European Research Council,47 and the Research Executive Agency (REA),48 which were both new-style executive agencies. Thus, the function of the REA was to carry out project management tasks for parts of FP7, by evaluating and managing projects that involved large numbers of relatively small budgets. The Commission was also assisted by a plethora of advisory bodies, whose task was to assist the Commission in project evaluation and selection in different subject matter areas.49 In other areas, such as health, the administration is also primarily centralized in relation to management of the Community public health programme.50 This was apparent from the 2007 Community health action programme,51 the objectives of which were improvement in citizens’ health security, health promotion, and d ­ issemination of  health information.52 Community action was expressly designed to complement, support, and add value to Member State policies.53 It had a budget of €321 million over six years. The decision on the initiatives to be financed was taken by the Commission, although there were a variety of co-financing mechanisms that involved input from

45  R Schutze, ‘Co-operative Federalism Constitutionalised: The Emergence of Complementary Competences in the EC Legal Order’ (2006) 31 ELRev 167. 46  Decision 2006/1982/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007–2013) [2006] OJ L412/1. 47 http://ec.europa.eu/. 48 https://ec.europa.eu/info/departments/research-executive-agency_en. 49 http://ec.europa.eu/research/fp7/index_en.cfm?pg=eag. 50 http://ec.europa.eu/health/index_en.htm. 51  Decision 2007/1350/EC of the European Parliament and of the Council of 23 October 2007 establishing a second programme of Community action in the field of health (2008–13) [2007] OJ L301/3. 52  Ibid Art 2(2). 53  Ibid Art 2(1).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

16

ADMINISTRATION AND LAW

other parties.54 The enabling Decision gave broad latitude as to means of implementation, stipulating that full use should be made of appropriate means of implementation, including direct or indirect implementation by the Commission on a centralized basis, and joint management with international organizations.55 The Commission was assisted in its administration of the 2007 programme by the Executive Agency for Health and Consumers (EAHC). Thus the EAHC managed relations with some 2,200 beneficiaries involved in nearly 200 projects in the field of health.56 While the principal executive decisions were made by the Commission and the EAHC, the enabling Decision also made provision for close cooperation with the Member States to ensure the effectiveness of the 2007 programme, through, for example, information exchange and the like.57 The Community’s overall imperative for public health was also furthered by the European Agency for Safety and Health at Work (OSHA),58 which sought to make workplaces safer, healthier, and more productive, by bringing together and ­sharing knowledge and information, and promoting a culture of risk prevention.

(C)  Consumer Protection: Extension of Shared Administration In yet other areas, such as consumer protection, shared administration prevails. Article 153 EC stipulated that consumer protection measures could be enacted pursuant to Article 95 EC, as measures designed to complete the internal market, and most were enacted on this basis, dealing with matters such as unfair contract terms, products liability, product safety, unfair commercial practices, distance selling, and the like.59 There is, therefore, a significant volume of consumer protection law.60 The administration of such directives varies in detail, and has altered somewhat over time. The earlier directives contained little detail on Member State administration, other than saying that they had to bring into force the laws, regulations, and administrative provisions necessary to comply with the Directive.61 The paradigm in later directives is for the Member States to have the duty to administer the directive, albeit with some structured discretion as to how to do so, but the Directive nonetheless stipulated the ends that must be attained by the Member State administrative and remedial regime, and the types of order that could be imposed.62 These Directives accorded the national 54  Ibid Art 4. 55  Ibid Art 6. 56 http://ec.europa.eu/chafea/. 57  Dec 2007/1350/EC (n 51) Art 7. 58 http://osha.europa.eu/en/about-eu-osha. 59 http://ec.europa.eu/info/departments/justice-and-consumers_en. 60  S Weatherill, EU Consumer Law and Policy (Edward Elgar, 2nd edn, 2005). 61  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/29, Art 10; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12, Art 11. 62  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22, Arts 11–13; Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1, Arts 16–20; Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers [2008] OJ L133/66, Arts 22–24.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

17

authorities significant powers and duties in relation to consumer protection, which would often be central to their overall regime.63 There was, moreover, an important ‘horizontal’ dimension to administration of EC law in this area, which was manifest in  a Regulation that mandated cross-border cooperation between administrative ­authorities in Member States to ensure the more effective enforcement of consumer protection laws.64

(D) The Exercise of Community Competence: The Rise of EU Agencies We have already seen that an agency was chosen as part of the administrative machinery for the environment in 1990. The 1990s more generally witnessed the second wave of agency creation in diverse areas, ranging from medicines to drug addiction, from trade marks to health and safety at work and from reconstruction to the regulation of plant varieties.65 The general reasons for using agencies are well known.66 It facilitates the use of experts outside the normal bureaucratic structure; enables the Commission to concentrate on strategic policy; insulates the resolution of technical regulatory issues from the 63  See, eg, in the UK, the application of the consumer protection directives by the Office of Fair Trading. In  relation to unfair commercial practices: OFT, Statement of Consumer Protection Enforcement Principles (2008), available at http://webarchive.nationalarchives.gov.uk/20100114052338/http://www.oft.gov.uk/shared_oft/ reports/consumer_protection/oft964.pdf; in relation to distance selling, http://webarchive.­nationalarchives. gov.uk/20110704121308/http://oft.gov.uk/about-the-oft/legal-powers/legal/distance-selling-regulations/; in relation to enforcement and application of consumer protection legislation, including obligations derived from Community directives, OFT, Enforcement of Consumer Protection Legislation (2002), available at https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/284456/oft512.pdf. 64  Regulation (EC) 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws [2004] OJ L364/1. 65  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1; Council Regulation (EEC) 1360/90 of 7 May 1990 establishing a European Training Foundation [1990] OJ L 131/1; Council Regulation (EEC) 302/93 of 8 February 1993 on the establishment of a European Centre for Drugs and Drug Addiction [1993] OJ L36/1; Council Regulation (EEC) 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veter­ inary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1; Council Regulation (EC) 40/94 of 20 December 1993 on the Community Trademark [1994] OJ L11/1; Council Regulation (EC) 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work [1994] OJ L216/1; Council Regulation (EC) 2100/94 of 27 July 1994 on Community Plant Variety Rights [1994] OJ L227/1; Council Regulation (EC) 2965/94 of 28 November 1994 setting up a Translation Centre for Bodies of the European Union [1994] OJ L314/1; Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/1; Council Regulation (EC) 2454/1999 of 15 November 1999 setting up of a European Agency for Reconstruction [1999] OJ L299/1. 66 D Hague, W Mackenzie, and A Barker (eds), Public Policy and Private Interests: The Institutions of Compromise (Macmillan, 1975) 362; Report on Non-Departmental Public Bodies (Cmnd 7797, 1980) [10]–[16]; R Baldwin and C McCrudden, Regulation and Public Law (Weidenfeld & Nicolson, 1987) Ch 1; M Thatcher and A Stone Sweet, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West European Politics 1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

18

ADMINISTRATION AND LAW

vagaries of day-to-day political change; increases the credibility of the choices thus made;67 and facilitates correction of market failure through rulemaking in the ‘regulatory state’.68 There are, nonetheless, diverse views as to why agencies proliferated in the EC during this period.69 There is little doubt that ‘political’ factors were also relevant: given the opposition to according further power directly to the Commission, agencies provided a way for the EC to play a role in an area through smaller, more discrete ‘technical’ units. A number of the preceding rationales were echoed by the Commission Communication on Agencies, which stated that agencies were valuable in ‘highly specialized technical areas requiring advanced expertise and continuity, credibility and visibility of public action’,70 the corollary being that the Commission would thereby be able to focus on its core function of policy formation, with the agencies implementing this policy in specific technical areas.71

(E) The Third Pillar: Intergovernmentalism and Shared Administration The original provisions of the TEU concerning the Third Pillar dealt with a broad range of matters concerning justice and home affairs. Thus, the initial version of Article K.1 stipulated that Member States should regard the following as matters of ‘common interest’: asylum policy; rules governing the crossing by persons of the external borders of the Member States; immigration policy and policy regarding nationals of third countries; combating drug addiction; combating fraud on an international scale; judicial cooperation in civil matters; judicial cooperation in criminal matters; customs cooperation; and police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking, and other serious international crime. The original version of Article K.3 stipulated that Member States should inform and consult one another within the Council with a view to coordinating their action and that they should ‘establish collaboration between the relevant departments of their administrations’. The emphasis placed on inter-administrative cooperation was further echoed in Article K.4. It created a Coordinating Committee of senior national officials, 67  G Majone, ‘Temporal Consistency and Policy Credibility: Why Democracies Need Non-Majoritarian Institutions’, Working Paper RSC No 96/57, EUI (1996); F Gilardi, ‘Policy Credibility and Delegation to Independent Regulatory Agencies: A Comparative Empirical Analysis’ (2002) 9 JEPP 873. 68  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17 Jnl of Public Policy 139. 69  A Kreher, ‘Agencies in the European Community—A Step towards Administrative Integration in Europe’ (1997) 4 JEPP 225; M Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (1997) 4 JEPP 276; R Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 JEPP 246; G Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8 ELJ 319. 70  The Operating Framework for the European Regulatory Agencies, COM(2002) 718 final, 5. 71  Ibid 2.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

19

which could also give opinions to the Council, either at the Council’s request or on its own initiative, and could contribute to the preparation of Council discussions in the areas covered by Article K.1. The fact that the Third Pillar was more intergovernmental than the EC Treaty, combined with the range and sensitivity of the subject matter, had implications for the pattern of administration and policy execution in this area. The K.4 Coordinating Committee, a secretive body that lacked transparency, gave national officials direct influence on agenda setting and policy development of a kind that they lacked under the EC Treaty. The subject matter covered by the Third Pillar shaped the nature of subsequent administration. This was in part because of the language of Article K.1, which spoke of judicial cooperation in civil and criminal matters, and customs and police cooperation, thereby laying the foundation for measures that involved interaction between the EU and Member States, and between the Member States themselves. The nature of the subsequent administration was also shaped by the sensitivity of the subject matter, such as asylum and immigration, and EU action in these areas was crucially dependent on Member State administrations taking the steps to effectuate the objectives set out in the Third Pillar measure.72

5  The Amsterdam Treaty and Novel Forms of Administration: Treaty Choice and Political Choice (A)  The Amsterdam Treaty In addition to the renumbering of the Treaty provisions, which some regarded as regrettable, but which was in reality inevitable and beneficial, the Amsterdam Treaty made further changes to the status quo ante. In institutional terms, it did not achieve its stated objective, which was to revise the Treaty articles concerning the Community institutions to reflect the expansion of the Community from six to fifteen Member States, although it did further expand the power of the European Parliament over the legislative process. In substantive terms, there were changes to the Third Pillar, part of which was brought into the First Pillar, by creating the new Title IV of the EC Treaty dealing with asylum, immigration, and the like. There were also substantive changes to the EC Treaty, the most important being new and amended provisions on employment, social policy, and labour law. The period between the Amsterdam Treaty and the Nice Treaty was noteworthy in two respects for the evolution of Community administration, since it saw the emergence of novel forms of administration, one the result of a choice made in the Treaty, the other the result of political choice.

72  S Peers, EU Justice and Home Affairs (Oxford University Press, 3rd edn, 2011).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

20

ADMINISTRATION AND LAW

(B)  Social Partners: Treaty Choice The Amsterdam Treaty formalized the role of the social partners in the policymaking and the administrative process. This occurred in a number of related ways. First, the social dialogue involving representatives of management and labour began in the mid-1980s and was recognized in the Maastricht Treaty via the Protocol on Social Policy. The Protocol was, however, incorporated into the main body of the Treaty by the Treaty of Amsterdam in 1997. The social dialogue is now regarded as important, not only as a mechanism for making legislation, but also as a way of ­advancing Community social policy more generally. Secondly, the Treaty of Amsterdam left it open to a Member State to entrust ­management and labour at their joint request with the implementation of Council ­directives on social policy made pursuant to Article 137(2) EC. The Member State must ensure that management and labour introduced the necessary measures no later than the date when the directive was to be transposed into national law. It was also incumbent on the Member State to take any measures necessary to place it in a ­position to guarantee the results imposed by the directive.73 Thirdly, the Amsterdam Treaty empowered management and labour to signal ­during the consultative process74 that they wished the Community dialogue to lead to contractual relations, including agreements.75 Such agreements could be implemented in two ways. They could be implemented in accord with the procedures and practices specific to management and labour and the Member States,76 with monitoring of the agreements undertaken primarily by the social partners, but also by the Commission. The alternative mode of implementing the agreement was via a Council decision, on a proposal from the Commission,77 which was then formally binding and covered all workers.78 They are referred to as framework agreements since they leave discretion to Member States and management/labour as to the more detailed measures to fulfil the Directive. The Directives also normally provide that implementation and administration can be done either by the Member State, or by management/labour via collective agreements and the like, or by a combination of the two.

(C)  Open Method of Coordination: Political Choice The other novel development in the years between the Amsterdam and Nice Treaties with significant implications for the pattern of Community administration was the

73  Art 137(3) EC. 74  Art 138(4) EC. 75  Art 139(1) EC. 76  Art 139(2) EC. 77  Art 139(2) EC. 78  Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on Parental Leave Concluded by UNICE, CEEP and ETUC [1996] OJ L145/4; Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on Part-time Work Concluded by UNICE, CEEP, and the ETUC—Annex Framework Agreement on Part-Time Work [1998] OJ L14/9; Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on Fixed-Time Work Concluded by ETUC, UNICE and CEEP [1999] OJ L175/43.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

21

Open Method of Coordination (OMC),79 a political choice made by the European Council. While the intellectual origins can be traced earlier than the Lisbon Summit in March 2000,80 this European Council meeting was nonetheless important, since it gave its imprimatur to the OMC as an approach to be used within EU governance.81 The EU was ‘to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’.82 The implementation of this strategy was to be, inter alia, through the OMC, with involvement of Member States, regional and local government, the social partners, and civil society.83 The OMC functions both in relation to policymaking through the fixing of guidelines, timetables, and the like, and also to administration of that policy through benchmarking, monitoring, evaluation, mutual learning, and peer review.84

6  The Nice Treaty and Community Administration: Reform, Centralized Administration, Shared Administration, and Agencies (A)  Nice Treaty Given that the Treaty of Amsterdam did not address the EU’s institutional structure pending enlargement, a further Intergovernmental Conference was inevitable. The Nice Treaty was duly concluded in December 2000 after a notoriously fractious and badly run European Council summit. The major political achievement was agreement on institutional questions relevant to enlargement: settling the weighting of votes in the Council, the distribution of seats in the European Parliament, the composition of the Commission, and the court system. The Nice Treaty contained little that was directly relevant to the pattern of Community administration. There were nonetheless significant developments in Community administration in the ensuing years.

(B) Administrative Crisis and Legislative Response: New Rules for Community Administration There had, prior to 2002, been little in the way of overarching principles to govern Community administration. Political and legal developments may, however, be 79  There is a large literature on the OMC, which is discussed in Ch 7. 80  Lisbon European Council, Presidency Conclusions, 23–4 March 2000. 81  The Lisbon approach was developed further at the Nice European Council in December 2000, and relaunched in the March 2005 Summit: Nice European Council, Presidency Conclusions, 7–9 December 2000; European Council, Presidency Conclusions, 22–3 March 2005. 82  Nice European Council, Presidency Conclusions (n 81) [5]. 83  Ibid [38]. 84  Ibid [37].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

22

ADMINISTRATION AND LAW

­ recipitated by a crisis. The resignation of the Santer Commission constituted just such p a crisis for the Community. There had been concern for some considerable time about fraud, and mismanagement in the EC. This culminated in the setting up of a Committee of Independent Experts in January 1999.85 Its First Report, critical of the Santer Commission, prompted its downfall. Romano Prodi, the new President of the Commission, introduced a number of reforms designed to restore faith in the Commission, which were followed in 1999 by the creation of Task Force for Administrative Reform (TFRA). The TFRA produced a consultative document in January 2000,86 and the White Paper appeared in March of  the same year.87 An Action Plan was attached to the White Paper highlighting ninety-eight points on which further measures were required to implement the reform agenda. These were carried through by an admixture of formal legislation, soft law, and internal administrative reform.88 A number of these reforms were dealt with through the new Financial Regulation, which established a constitutional framework for Community administration of a kind that had not existed hitherto. The new Financial Regulation89 provided a legal framework for Community administration, and the distinction between centralized and shared administration that was central to the Second Report of the Committee of Independent Experts, and to the Commission White Paper, was embodied in the Regulation.

(C) Executive Agencies, Partnerships, and Contract: Centralized Administration The predominant pattern has, as we have seen, been shared administration, with the Commission working with national bureaucracies to implement policy in areas such as the CAP, the Structural Funds, and Customs Regulations. The Community legislation in these areas laid down distinct legal and political obligations on both the Commission and the Member States, and the success of the regime was dependent on both fulfilling their assigned remit. The Commission has, however, increasingly undertaken administration centrally, without a systematic relationship with national administrations. This was in part because the Commission was given wider responsibilities, and the enabling provisions did not establish any general pattern of shared management. It was in part because 85  Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission (15 March 1999); Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999). 86  Reforming the Commission, CG3 (2000) 1/17, 18 January 2000. 87  Reforming the Commission, COM (2000) 200. 88  Ch 2. 89  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the General Budget of the European Communities [2002] OJ L248/1; Council Regulation (EC, Euratom) 1995/2006 of 13 December 2006 amending Regulation (EC, Euratom) 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities [2006] OJ L390/1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

23

the  subject matter did not necessarily lend itself to shared management. It was in part  also because the Commission felt that certain policies were best implemented through non-governmental organs. Thus, for example, initiatives in relation to t­ourism, ­cooperation with non-member countries of the southern Mediterranean (the MED programmes), emergency aid, vocational training (the Leonardo da Vinci programme), nuclear safety policy, as well as the TACIS and PHARE programmes, were managed directly by the Commission. Centralized management captures the idea that the Commission will implement a  programme without formal, systematic cooperation with national bureaucracies. It  does not mean that the Commission carries out the entirety of the activity itself, ‘in  house’. The new Financial Regulation provided a framework for those activities managed by the Commission. Such programmes could be directly managed within the Commission; management tasks could be undertaken by executive agencies; implementation could be entrusted to a Community body or agency; some tasks could be delegated to networks of national agencies; and certain activities could be contracted out. These modes of centralized management interrelate. Thus, even where it was decided to use an executive agency, there would still be important aspects of the programme overseen by the Commission, since the management tasks that could be ­delegated to such agencies were limited. Moreover, the contracting-out of certain tasks could be used in conjunction with any of the other modes of centralized management. The Commission could in addition establish special partnership bodies, predicated on the assumption that ‘to achieve some goals, the public sector needs to work in ­partnership with the private sector, providing funding and maintaining a voice but standing aside from key strategic decisions on direction’.90 Such a partnership body was established for air traffic management (SESAR), to develop the new generation air traffic management system capable of ensuring the safety of air transport worldwide over the next thirty years.91 The joint undertaking secured funding and organized the work programme.92 The EU entered analogous partnerships dealing with nuclear fusion,93 and research innovation.94

(D)  Services and the Internal Market: Shared Administration Shared administration in which Member States are accorded formal legal ­responsibilities by Community legislation to partake in the administration of EC policy, nonetheless, remains the norm for administration in many areas. The internal market was not ­‘literally completed’ in 1992, and indeed changes in technology, combined with the development of new products, meant that completion of the internal market should be 90  COM(2008) 135 (n 118) 3. 91  https://ec.europa.eu/transport/modes/air/sesar/sesar_undertaking_en; Council Regulation (EC) 219/2007 of 27 February 2007 [2007] OJ L64/1. 92 https://www.eurocontrol.int/sesar-research. 93 https://www.iter.org/. 94  https://eit.europa.eu/, European Institute of Innovation and Technology.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

24

ADMINISTRATION AND LAW

viewed as an ongoing process, rather than an end to be achieved once and for all. The Commission turned its attention to integration in the services sector, where market integration had lagged behind other areas. It initiated a range of legislative measures to meet this deficiency and shared administration was the norm throughout. This can be briefly exemplified by considering the Community directives concerned with telecommunications.95 Telecommunications liberalization was achieved through a series of directives, ­consisting of a Framework Directive96 and a number of other directives dealing with specific issues, such as the Universal Service Directive.97 The competitive market was regarded as the optimal method for the distribution of these services, but legislative intervention via universal service obligations was required to correct market failure. The Universal Service Directive specified the particular services that must be made available to end-users, while leaving Member States to determine the best method of  implementation, subject to respect for principles of objectivity, transparency, non-­discrimination, and proportionality. The Universal Service Directive set out the relevant universal service obligations, relating to matters such as access to public phone services, directory inquiry service, quality of service, and affordability of tariffs. National regulatory authorities were required to deal with such issues and there were detailed obligations and powers requiring the exercise of their discretion. The Directive contained additional regulatory controls on undertakings with significant market power in specific markets, and once again it was the national regulatory authority that was charged with applying the relevant provisions.

(E) Competition: Extended Parallel Competence, Liaison, and Assistance We saw from the preceding analysis the administrative regime that applied in competition cases. The traditional approach came under increasing strain. The Commission did not have the resources to deal with all agreements notified to it, nor did it have the resources to adjudicate on anything but a handful of individual exemptions. The Commission therefore encouraged national courts to apply Articles 81 and 82 EC, and in the White Paper on Modernization98 it proposed a thorough overhaul of the 95  P Craig, ‘Shared Administration, Disbursement of Community Funds and the Regulatory State’ in H Hofmann and A Turk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar, 2009) Ch 2. 96  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L108/33. 97  Directive 2002/22 of the European Parliament and the Council of 7 March 2002 on universal service and users’ right relating to electronic communications networks and services (Universal Service Directive) [2002] OJ L108/51; W Sauter, ‘Universal Service Obligations and the Emergence of Citizens’ Rights in European Telecommunications Liberalization’ in M Freedland and S Sciarra (eds), Public Services and Citizenship in European Law—Public and Labour Law Perspectives (Clarendon Press, 1998) Ch 7. 98 White Paper on Modernization of the Rules Implementing Articles 85 and 86 of the EC Treaty, Commission Programme 99/27, 28 April 1999.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

25

enforcement regime, abolishing notification and the Commission’s monopoly over Article 81(3). National courts and national competition authorities (NCAs) would be ­empowered to apply Article 81 in its entirety and Article 82. The Commission would retain its power to apply Articles 81 and 82. This was enacted in Regulation 1/2003,99 and embodies a regime that is decentralized and accords extended parallel competence to national courts and NCAs over competition. It provides that agreements, etc, caught by Article 81(1), which do not satisfy the conditions of Article 81(3), shall be prohibited, no prior decision to that effect being required. The same principle is applicable to abuse of a dominant position in Article 82. NCAs and national courts can apply the entirety of Articles 81 and 82.100 There are provisions facilitating cooperation between an NCA and the Commission.101 NCAs have an obligation to inform the Commission of proceedings begun in the Member States,102 and the NCAs are also obliged to inform the Commission before they adopt a decision requiring an infringement of Article 81 or 82 to be brought to an end, before they accept commitments or withdraw the benefit of a block exemption.103 The NCAs are ‘relieved of their competence’ to apply Articles 81 and 82 if the Commission initiates proceedings for the adoption of a decision.104 NCAs cannot make rulings in relation to Articles 81 and 82 that are counter to a decision already reached by the Commission on that same subject matter.105 There are also provisions dealing with the relationship between national courts and the Commission. A national court cannot make rulings on Articles 81 and 82 that are contrary to a Commission decision on the same subject matter; they must avoid giving decisions that would conflict with a decision contemplated by the Commission in proceedings which it has initiated;106 national courts can seek the Commission’s opinion on questions concerning the Community competition rules;107 and the Commission can submit written observations to national courts where the coherent application of Articles 81 and 82 so requires.108 There are further provisions facilitating cooperation between NCAs in different Member States,109 and a European Competition Network has been established for ­discussion and cooperation between NCAs.110 There are separate provisions dealing with cooperation with national courts.111 The Commission continues to have enforcement power under the new regime. It can act on a complaint or on its own initiative and find an infringement of Article 81 99  Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1; J Venit, ‘Brave New World: The Decentralization and Modernization of Enforcement under Articles 81 and 82 of the EC Treaty’ (2003) 40 CMLRev 545. 100  Reg 1/2003 (n 99) Arts 5 and 6. 101  Ibid Arts 11–12. 102  Ibid Art 11(3). 103  Ibid Art 11(4). 104  Ibid Art 11(6). 105  Ibid Art 16(2). 106  Ibid Art 16(1). 107  Ibid Art 15(1). 108  Ibid Art 15(3). 109  Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43; Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities, available at http://ec.europa.eu/competition/ecn/joint_statement_en.pdf. 110 http://ec.europa.eu/competition/ecn/index_en.html. 111  Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC [2004] OJ C101/54.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

26

ADMINISTRATION AND LAW

or Article 82.112 It can impose behavioural or structural remedies, although the Regulation is framed in favour of the former.113

(F) The Exercise of Community Competence: The Rise and Rise of EU Agencies We have already seen how agencies were increasingly employed in the 1990s, constituting a second wave of agencies to complement those created in 1975. The new millennium saw further use made of the agency model in what can be regarded as a third wave, with agencies being adopted in areas as diverse as food safety, maritime safety, aviation safety, information security, disease prevention, railways, fisheries, fundamental rights, and chemicals.114 A new set of agencies was created to strengthen regulatory control over banking and financial services in the wake of the 2008 financial crisis. Agencies were also established under the Common Foreign and Security Policy (CFSP) Pillar,115 and under the Police and Judicial Cooperation in Criminal Matters (PJCC) Pillar.116 In addition to these agencies there are ‘executive agencies’, designed to oversee a programme that is directly managed by the Commission, and such agencies are ­subject to a specific set of rules laid down by regulation.117 The Commission, however, signalled in 2008 its wish to reconsider the role of ­agencies, other than executive agencies, in the EU, stating that the ‘time has come to re-launch a debate on the role of agencies and their place in the governance of the EU’.118 The Commission wished this re-evaluation to consider a range of matters: the structure and working of agencies, including their method of governance; agency accountability and their relationship with other institutions; the application of the principles of better regulation to agencies; and consideration of the process for establishing and ending regulatory agencies. It was for some time irked by its role within the decision-making structure of agencies, and argued repeatedly that it should have at the very least equal status on the management board of agencies. It proposed a draft inter-­ institutional agreement on agencies in 2005 in which this was a key theme.119 The draft agreement languished in the Council. The Commission’s continuing frustration with the structure of agency decision-making was apparent in its 2008 document, where it bemoaned the fact that while it was normally represented on the agency management

112  Reg 1/2003 (n 99) Art 7. 113  Ibid Art 7(1). 114  A full list of agencies and accompanying regulations can be found on https://europa.eu/europeanunion/about-eu/agencies_en. 115 https://eeas.europa.eu/topics/common-foreign-security-policy-cfsp_en. 116 https://eur-lex.europa.eu/summary/glossary/police_judicial_cooperation.html. 117  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ 2003 L11/1. 118  European Agencies—The Way Forward, COM(2008) 135, 2. 119  Draft Interinstitutional Agreement on the operating framework for the European regulatory agencies, COM(2005) 59 final.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

27

History and Typology

board, ‘it is always in a minority, sometimes even without the right to vote’120, the consequence being that ‘the degree of accountability of the Commission cannot exceed the degree of influence of the Commission on the agency’s activities’.121 These tensions within the agency model will be explored more fully later,122 and they have not prevented new agencies being created to strengthen regulatory control over banking and financial services.

7  Lisbon Treaty, Continuity, and Change: Centralized and Shared Administration, Comitology, Agencies The pattern of EU administration evolved in the light of the Lisbon Treaty. The workings of the different forms of EU administration as they operate under the Lisbon Treaty will be analysed in detail in the subsequent chapters. Suffice it to say the following for present purposes. First, the institutional forms of administration that we have encountered thus far continue post-Lisbon. In some areas centralized administration is used, while in others shared/mixed administration remains the mode of service delivery. Agencies continue to feature prominently in the post-Lisbon world. There have, as will be seen, been more significant changes in relation to Comitology as a result of the Lisbon Treaty provisions on the hierarchy of norms.123 Secondly, the Lisbon Treaty contains a novel provision on administrative c­ ooperation. Article 197 TFEU states that effective implementation of EU law by the Member States is essential for the proper functioning of the Union and hence is to be regarded ‘as a matter of common interest’. The EU can support Member States to improve their administrative capacity to implement EU law, by, for example, facilitating the exchange of information and of civil servants and support for training schemes. No Member State is obliged to avail itself of such support. Legislative regulations can, however, be enacted to establish the necessary measures to achieve the objectives of Article 197, excluding harmonization of national laws. Article 197 is, however, framed in guarded tones. Thus Article 197(3) states that the preceding parts of the Article are without prejudice to Member States’ obligations to implement Union law, to the prerogatives and duties of the Commission, and to other Treaty provisions providing for administrative cooperation among the Member States and between them and the Union. Thirdly, prior to the Lisbon Treaty there were doubts as to whether the EU had competence to adopt a general code concerning administrative law. It was arguable that a code could be based on what was Article 308 EC, but the Commission President seemed to doubt the existence of such competence. The Lisbon Treaty has now ­provided 120  COM(2008) 135 (n 118) 5.

121  Ibid 8.

122  Ch 6.

123  Ch 5.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

28

ADMINISTRATION AND LAW

a legal foundation. Article 298 TFEU states that in carrying out their missions, the institutions, bodies, offices, and agencies of the Union shall have the support of an open, efficient, and independent European administration, and that legislative r­egulations can be enacted to attain this objective. It, nonetheless, remained debatable whether such a code could apply to Member States, as well as the EU institutions.

8  Typology: Centralized Administration, Shared Administration, and Variation Commentators will inevitably differ as to the labels that best capture the different forms of administrative organization within the EU. There is, in particular, ­considerable variety of terms used to describe those areas in which national administrations play a formal role in the discharge of EU initiatives. The labels shared administration, ­indirect administration, executive federalism, co-administration, and mixed proceedings have all been used to connote this type of administrative interaction between the EU and national level. Little turns on the precise appellation chosen. My own preference is for shared administration, this being the term used by the Committee of Independent Experts,124 and embodied in the 2002 Financial Regulation.125 The typology articulated below is therefore premised on a divide between centralized and shared administration. It is, however, important to understand that various factors can affect the type of centralized or shared administration that operates within any particular area.126

(A)  Centralized Administration There are various areas where centralized administration is the prevalent method of discharging EU policy, although it may well vary as will become apparent from the subsequent discussion. (i)  Classic Centralized Administration: State Aids The procedural rules that apply in this area are derived from the relevant Treaty a­ rticles, case law, and from Regulation 659/1999.127 The constant feature throughout the Community’s existence is that the Commission makes the relevant decisions concerning the compatibility of state aid with the Treaty. Thus, it is for the Member State to 124  Committee of Independent Experts, Second Report (n 18). 125  Reg 1605/2002 (n 89). 126  See also Franchini, ‘L’impatto dell’integrazione comunitaria sulle relazioni al vertice dell’amministrazione’ (n 1); Schmidt-Aßmann, ‘Verwaltungskooperation’ (n 1); Cassese, ‘Diritto amministrativo europeo e diritto amministrativo nazionale’ (n 1); Cassese, ‘European Administrative Proceedings’ (n 1); Schmidt-Aßmann, ‘European Composite Administration’ (n 1); Chiti, ‘Forms of European Administrative Action’ (n 1). 127  Council Regulation 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the Treaty [1999] OJ L83/1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

29

notify the Commission about proposed new state aid, and the Commission may, after a preliminary review, decide to approve the aid. It is to take no more than two months, and if there are difficulties in reaching a decision within this time then the Commission proceeds to the more complete review in Article 108(2) TFEU. Commission findings pursuant to formal investigations are made by decisions. The Commission may decide that the aid is compatible, or incompatible, with the common market, and it may attach conditions to a positive decision.128 (ii) The New Paradigm of Centralized Administration: Management of Multiple Grants and Awards Centralized administration is now used for a wide variety of programmes, as the preceding discussion has shown. It captures the idea that the Commission will implement a programme without formal, systematic cooperation with national bureaucracies. It does not mean that the Commission carries out the entirety of the activity itself, ‘in house’. It may do so, it may not. It may choose to use an executive agency, or contract out part of the work. The new paradigm for this mode of administration is different from the traditional rationale. It now commonly applies in areas where the EU is accorded competence to supplement and support action of the Member States, such as health, education and vocational training, research and technological development, and culture. It will often choose to do this by programmes that entail awards in the form of subsidies, grants, or contracts to private parties to carry forward the objectives of the programme. The new-style executive agencies often manage such programmes. We have seen this in operation in the earlier discussion concerning public health. The same pattern has been apparent in relation to, for example, education and vocational training, where the programmes have been managed by the Education, Audiovisual and Culture Executive Agency;129 energy, where the programmes were run by the Intelligent Energy Executive Agency,130 which has now been superseded by the Executive Agency for Competitiveness and Innovation (EACI);131 and the EU’s research programme, where the REA has played a central role in assessing and managing multiple research projects in the FP7 programme, ranging from outer space to security, and from social science projects to research that will benefit small and medium-sized enterprises.132

128  Ibid Art 7. 129 Commission Decision 2005/56/EC of 14 January 2005 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 [2005] OJ L24/35. 130  Commission Decision 2004/20/EC of 23 December 2003 setting up an Executive Agency, the ‘Intelligent Energy Executive Agency’, to manage Community action in the field of energy in application of Council Regulation (EC) 58/2003 [2004] OJ L5/85. 131 https://europa.eu/european-union/about-eu/agencies_en. 132 https://ec.europa.eu/info/departments/research-executive-agency_en.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

30

ADMINISTRATION AND LAW

(B)  Shared Administration It is apparent from the preceding discussion that shared administration has been the predominant mode of discharging policy since the inception of the Community. The empowering legislation formally gives the Commission and Member States distinct administrative tasks, which are inter-dependent and both must discharge their ­respective tasks for the EU policy to be implemented successfully.133 It would be wrong to assume that all instances of shared or mixed administration fit some standard ‘mould’. They do not. They can differ very markedly. It is, therefore, important to identify the factors that shape the regime of shared administration that applies in any ­particular area. It is these factors taken individually and in aggregate that determine the reality of shared administration in the areas where it is used. (i)  Vertical Dimension: Top-Down, Bottom-Up, and Hybrid In a valuable analysis, della Cananea distinguished between three kinds of shared administration, or what he terms mixed proceedings.134 Thus, as the nomenclature would suggest, in top-down proceedings the initial decision is made by the EU authorities, normally in the form of a legislative act, which is often complemented by more detailed provisions, which in the post-Lisbon world may take the form of delegated or implementing acts. It is then for the relevant national authority to apply these rules at national level. This mode of shared administration has characterized much of the CAP, in relation to the disbursement of financial benefits and in relation to the levying of penalties for those who acted in contravention of production constraints and the like. A national intervention agency, or some similar body, applies the EU precepts at national level. By way of contrast, in bottom-up proceedings the initial decision in the administrative sequence is made at the national level, with the final decision resting with the Commission. This has been the case with some subsidies granted under the CAP, whereby it is for the national authority to make the initial recommendation as to the grant of the subsidy, with the final decision resting with the Commission.135 The bottom-up approach also captures important aspects of the Structural Funds. EU legislation identified the objectives of the Funds,136 one of which was the promotion of under-developed regions. The Member State would then submit to the Commission its regional development plans and priorities, and the operational programmes it wished to pursue in those areas. The Commission reviewed the proposed plans and programmes for conformity with the Regulation. It then established in agreement with the Member State, the CSF for Structural Fund operations. The CSF specified the priorities adopted for assistance, the forms of the assistance, its duration, and the financing plan. Hybrid shared administration entails an admixture of the previous two, in the sense that the administrative scheme has dimensions that are both top-down and b ­ ottom-up. 133  Committee of Independent Experts, Second Report (n 18) Vol I, [3.2.2]. 134  Della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (n 1) 199–203. 135  Ibid 201. 136  Reg 2052/88 (n 34).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

31

Thus, there were two tracks for gaining approval for new medicines. The centralized procedure was obligatory for biotechnical medicinal products, but optional for others. It was administered by the European Agency for the Evaluation of Medicinal Products (now the European Medicines Agency),137 aided by specialist committees, and made recommendations to the Commission, which then made the formal decision, albeit normally rubber-stamping the Agency’s recommendation.138 The decentralized ­procedure placed the authorization decision in the hands of national regulatory authorities, which when receiving an application informed authorities in other Member States, and the latter could object on certain specified grounds. The assumption underlying the decentralized procedure was nonetheless one of mutual recognition.139 (ii)  Vertical Dimension: The Power Accorded to the National Authorities A second factor that markedly affects the regime of shared or mixed administration in a particular area is the power accorded to the national authorities. This can vary very considerably. It is the most significant factor that affects the reality of shared administration between the EU and Member States. At one end of the scale, there are regimes of shared administration characterized by the existence of very detailed EU regulations applied by the relevant national ­authorities, but which leave little discretion. The national authority will have to determine whether the rules pertain to a particular instance, but their principal role will, nonetheless, be to apply the EU rules to cases that come within their jurisdiction. Many, although not all, of the rules concerning the CAP and customs are of this kind. Thus, it was for the national agency to decide whether, for example, a farmer planted crops in excess of EU limits, and if so the agency imposed the penalty stipulated by the Regulation. At the other end of the scale, there are regimes of shared administration, such as those applicable for utilities and telecommunications, in which considerably greater discretion resides with the national authorities. This can be exemplified by the provisions governing the electricity market. The principal objective of Directive 2009/72140 was to complete the internal market in electricity and to expedite market liberalization. Member States and their national regulatory authorities were given broad powers and duties to effectuate the Union objective. They had responsibilities for matters such as: the substantive criteria for the construction of generating capacity in their territory, subject to guidance in the Directive; application of these criteria; and for ensuring network access and non-discriminatory transmission and distribution tariffs. They were given discretionary power as to whether to impose on electricity undertakings public service obligations in the general economic interest, relating to matters such as 137 http://www.ema.europa.eu/ema. 138  Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1. 139  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use [2001] OJ L311/67, Art 28. 140  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L211/55.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

32

ADMINISTRATION AND LAW

security, regularity, quality and price of supplies, and environmental protection. They were obliged to ensure that all household customers, and where Member States deemed it appropriate, small enterprises, enjoyed universal service, defined as the right to be supplied with electricity of a specified quality at reasonable prices. They could appoint a supplier of last resort to ensure provision of universal service, and had the power to give compensation or exclusive rights to undertakings for the fulfilment of these obligations. They were obliged to take appropriate measures to protect final customers, in particular those who were vulnerable or who lived in remote areas; to ensure high levels of consumer protection; and to enable customers to switch to a new supplier. The overall regime was overseen at national level by regulatory authorities, which were responsible for ensuring non-discrimination, effective competition, and the efficient functioning of the market. There are other areas where the power accorded to national authorities falls between the two poles of the spectrum considered earlier. The type and degree of power given to national authorities is, nonetheless, the most important feature that distinguishes different regimes of shared administration. It is, moreover, a factor that cuts across that considered in the previous section. Thus, the mere fact that a regulatory regime is in certain respects bottom-up, does not necessarily mean that the Member State will have more power than in other areas where the shared administration is entirely top-down. There is no necessary correlation between this feature and the overall degree of power left to the national administration. (iii)  Vertical Dimension: The Existence of an EU Agency The nature of shared administration may also be affected by the existence of an EU agency.141 The extent to which this is so will depend on the nature of the EU agency, its  powers, and the surrounding body of rules applicable to the area. The following features are, nonetheless, of more general significance. The Commission’s authority may be reduced in relative terms and that of the Member States increased when an agency is created. This is because of the Commission’s minority role in the agency’s management board. The Commission’s concerns and frustration in this respect are apparent from its 2008 Communication on Agencies considered earlier.142 The very fact that the management board plays a central role in  setting the agency agenda, and making its key decisions serves to explain the Commission’s attention to this matter. The importance of this imbalance between Member State and Commission influence on the agency will depend on the nature of the agency’s powers. Other things being equal it will be less important if the agency’s powers are limited to information gathering and the like, and more important to the extent that the agency has powers of individual decision and ability to draft technical regulations, even if the latter have to be approved by the Commission. If we relate this to the earlier discussion it means that 141  Chiti, ‘Administrative Proceedings involving European Agencies’ (n 1). 142  European Agencies—The Way Forward, COM(2008) 135.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

33

even where shared administration is top-down, Member States may have a greater influence on what emerges from the ‘top’ where there is an agency. The existence of an agency may also reduce Commission influence within shared administration in a particular area because of the subject matter assigned to the agency, more especially when it is highly technical. In some instances, such as the regulation of medicines, this may lead to provisions built into the empowering Regulation whereby there is a presumption that the Commission will follow the opinion of the Agency.143 In other instances, such as air safety regulation, the technical nature of the subject matter means that the detailed regulation drafted by the Agency will normally be rubberstamped by the Commission.144 The regulations dealing with the new financial regulatory agencies make very clear that the draft regulations made by the agencies, which are dominated by the Member States, should be accepted by the Commission.145 (iv)  Horizontal Dimension: Networks and Interaction of Member State Administrations The regime of shared administration will also be markedly affected by the nature and degree of horizontal interaction between Member State administrations. Networks are prevalent throughout the EU.146 It is common in many areas of shared administration for there to be a network of national administrators or national regulatory authorities. The role played by such networks varies. The best known example of national network influence on rulemaking is Comitology,147 and networks also play a major role in the standardization process that accompanies the new mode of harmonization.148 In relation to the administration of agreed rules, it is not fortuitous that the most formal networks exist where there is the strongest incentive for effective enforcement of EU law across national borders. The Commission will normally be in the driving seat and will press for measures that enhance the enforcement capacities of the relevant national agencies to render the EU regulatory regime more effective. Thus, the Commission pressed for formal law to establish a network of national enforcement agencies and the EU regulations set out their powers and duties in considerable detail. The national agencies surrender some enforcement autonomy on their own territory, since they gain reciprocal powers of cross-border enforcement in other Member States. This is exemplified by the regimes in customs and agriculture, where problems of cross-border fraud have been especially prevalent,149 and in consumer protection 143  Reg 2309/93 (n 65) Art 10. 144  Regulation (EC) 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2002] OJ L240/1. 145  See 165. 146  P Craig, ‘Shared Administration and Networks: Global and EU Perspectives’ in G Anthony, J-B Auby, J Morison, and T Zwart (eds), Values in Global Administrative Law: Essays in Honour of Spyridon Flogaitis and Gerard Timsit (Hart, 2011) Ch 4. 147  Ch 5. 148  https://www.cen.eu/Pages/default.aspx; https://www.cenelec.eu; http://www.etsi.org/index.php. 149  Council Regulation (EC) 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [1997] OJ L82/1, replacing earlier provisions dating from 1981.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

34

ADMINISTRATION AND LAW

where cross-border cooperation was formalized and enhanced because of concerns that the pre-existing regime was not effective.150 Horizontal networks are also common in other areas. Thus, for example, in relation to competition there are provisions facilitating cooperation between NCAs, in d ­ ifferent Member States,151 and a European Competition Network has been established for discussion and cooperation between NCAs.152 Analogous mechanisms exist in relation to utilities, with institutional mechanisms designed to foster discussion of cross-border issues, the Florence Forum in relation to electricity,153 and the Madrid Forum in ­relation to gas.154 There is now also ACER, which is the Agency for Cooperation of Energy Regulators.155 The Commission will often be instrumental in creating such networks, as exemplified by the European Consumer Centres Network (ECC-Net), which was an EU-wide network created in order to promote consumer confidence with better informed and educated consumers, and also to help them in getting easy access to appropriate redress in case of a violation of their rights as consumers in cross-border transactions.156 EU support for such a network may indeed come from the European Council, with its existence then being embodied in a formal legal act, as was the case with the European Judicial Network in civil and commercial matters. The catalyst for its formation was the Tampere European Council in 1999, in which the heads of state wished the European Commission to take initiatives to improve access to justice in Europe, one of which was the establishment of a network of national authorities with responsibility for civil and commercial law. The Commission duly presented a proposal for a  Decision establishing the network in 2000, which was adopted by the Council in May  2001.157 The network consists of representatives of the Member States’ judicial and administrative authorities and meets several times each year to exchange information and experience and boost cooperation between the Member States as regards civil and commercial law. The main objective is to make life easier for people facing ­litigation of whatever kind where there is a transnational element, although it does not provide legal advice about a specific situation.158

150  Regulation (EC) 2006/2004 of the European Parliament and of the Council of 27 October 2004 on c­ ooperation between national authorities responsible for the enforcement of consumer protection laws [2004] OJ L364/1. 151  Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43. 152 http://ec.europa.eu/competition/ecn/index_en.html. 153 https://ec.europa.eu/info/events/meeting-european-electricity-regulatory-forum-florence-2018-may-30_en. 154 https://ec.europa.eu/info/events/madrid-forum-2018-oct-17_en. 155 https://europa.eu/european-union/about-eu/agencies/acer_en. 156 https://ec.europa.eu/info/live-work-travel-eu/consumers/resolve-your-consumer-complaint/europeanconsumer-centres-network_en. 157  Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters [2001] OJ L174/25. 158  http://ec.europa.eu/civiljustice/index_en.htm; https://e-justice.europa.eu/home.do?action=home&plang=en.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

History and Typology

35

9 Conclusion Community administration has evolved since the inception of the EEC and continues to do so. More traditional decisional forms have been modified and extended and new decisional forms have been created in response to an EU that has been granted an expanded range of competences, the nature of which vary in different sectoral areas. There is little doubt that this administrative evolution will continue. These developments pose challenges for all those concerned with the EU and its interrelationship with the Member States, whether considered from the perspective of legitimacy, accountability, or effectiveness. These challenges will be considered in the chapters that follow. The detailed regime that pertains to each principal mode of EU administration will be considered. This includes analysis of legal and political accountability. It also includes substantive or output accountability, which speaks to the effectiveness of any particular regime of EU administration in discharging the task assigned to it. To ignore issues of substantive accountability leads to conclusions concerning the success or failure of EU administration that are necessarily incomplete.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

2 Crisis, Reform, and Constitutionalization 1 Introduction The previous chapter considered the history and typology of EU administration. The present chapter focuses on the impact of resignation of the Santer Commission, which had profound significance for EU administration, and the controls to which it was subject. The resignation received front-page attention in the press, proof for those minded to believe it of the malaise which had long existed within that organization. Its downfall was prompted by the First Report of the Committee of Independent Experts. This was followed in quick succession by reforms instituted by Romano Prodi as the new President of the Commission, by the Committee of Independent Experts’ Second Report, by the White Paper on reform of the Commission and implementation of these reforms. An understanding of these developments is crucial in order to appreciate the current pattern of EU administration. This chapter will chart these developments leading to administrative reform, including the Financial Regulation, which established a constitutional framework for Union administration of the kind that had not existed hitherto. Subsequent chapters will analyse the provisions contained therein as they relate to different types of EU administration.

2  The Fall of the Santer Commission (A) The Committee of Independent Experts, its Origin, and Criteria of Operation There had been concern in the EC for some considerable time about fraud, and mismanagement. Newspaper reports revealed instances of fraud in the Common Agricultural Policy (CAP), the Court of Auditors brought to light instances of mismanagement of certain Community policies, and UCLAF investigations revealed the ways in which Community funds were being misused. The European Parliament repeatedly expressed its dissatisfaction with the management of the Community’s financial resources.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

37

This culminated in a resolution of 14 January 1999 which called for a Committee of Independent Experts to be convened under the auspices of the European Parliament and the Commission with a mandate to detect and deal with fraud, mismanagement, and nepotism. It was for the Committee to decide how far the Commission as a body, or individual Commissioners, had responsibility for such matters. The Committee was also to conduct a fundamental review of the Commission’s practices in the award of all financial contracts. The Committee produced its first report within two months, by 15 March 1999. The Committee was not a Community institution, nor was it a Community agency. It had no formal investigative powers. It derived its authority from the agreement of the Parliament and the Commission, and saw itself as a temporary advisory committee operating by consent. The Committee began by defining its terms of reference. Fraud was taken to mean  ‘intentional acts or omissions tending to harm the financial interests of the Communities’, and included misappropriation of funds.1 Mismanagement was said to be a broader concept and encompassed ‘serious or persistent infringements of the principles of sound administration, and, in particular, acts or omissions allowing or encouraging fraud or irregularities to occur or persist’.2 It would normally be the result of negligence in the exercise of public management functions. Nepotism was ‘­favouritism shown to relatives or friends, especially in appointments to desirable positions which are not based on merit or justice.’3 Public officials should act in the general interest of the Community, with complete independence. Decisions should be made solely in terms of the public interest on the basis of objective criteria.4 Exigencies of time meant that the Committee could only investigate a limited ­number of Community policies. It nonetheless produced a Report of 146 pages by the ­stipulated date, and this had an immediate, dramatic effect, prompting the Commission to resign en bloc. The resulting crisis was the dominant headline in newspapers across Europe, being the focus of attention in quality papers and the tabloid press alike. For  many Eurosceptics it was proof of what they had always maintained, empirical vindication of the ‘rottenness at the heart of Europe’. The tabloid press in the UK, much of which had lost no opportunity in the past to berate the EC, vied to devise ever more cutting headlines. Individual sentences plucked from the Committee’s Report lent themselves readily to the media sound-bite age. The concluding paragraph of the Committee’s Report spoke in terms of it ‘becoming difficult to find anyone who has even the slightest sense of responsibility’5 within the Commission, and there were ­earlier references to a mismatch between the objectives assigned to the Commission, and the way in which it had chosen to fulfil them.6 Whether those who were so ready to dance on the grave of the outgoing Commission had actually read the Report might well be doubted. There is often an inverse ­correlation

1  Committee of Independent Experts, First Report on Allegations regarding Fraud, Mismanagement and Nepotism in the European Commission (15 March 1999) [1.4.2]. 2  Ibid [1.4.3]. 3  Ibid [1.4.4]. 4 Ibid [1.5.4].   5 Ibid [9.4.25].    6  Ibid [9.4.5].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

38

ADMINISTRATION AND LAW

between the strength of one’s feelings and the depth of one’s knowledge. An executive summary is probably as far as most people got. Some might even have read the actual conclusion in the Report itself. It is, however, only by reading the entire Report that one can understand what went wrong in the cases investigated by the Committee. This is not to deny the existence of matters of real concern which the Committee brought to light. Its Report performed a valuable function in bringing together data on the problems encountered in the running of a number of important Community policies. It was, moreover, no bad thing in the long term for the Commission to have been publicly criticized in this manner, since there were doubtless those in the Commission who were arrogant, personally and ‘institutionally’, to others in the Community. It is, nonetheless, important to stand back and see what general lessons can be learned from the events that occurred, and to place these events within the more general context of decision-making by public bodies. It becomes readily apparent that the difficulties were those inherent in contracting-out by a public arm of government: the blurring of the line between policy formation and policy implementation; the difficulty of ensuring proper financial accounting for activities of the private contractor; the importance of a proper line of management within the public body; and the fact that the private contractor will normally not be imbued with a public ethos.7 These lessons must not be forgotten. It should, nonetheless, be acknowledged that there will often be no viable alternative to contracting-out for the effective discharge of many Community policies. This was recognized in the Second Report of the Committee of Independent Experts8 and in the White Paper on Reform of the Commission.9 The objective must be to develop techniques to ensure that contracting-out functions as an effective and efficient mechanism for the provision of Community public services.

(B) The Committee of Independent Experts’ Detailed Critique It is important at the outset to put the Committee’s findings into perspective. There was no finding of fraud against any Commissioner, and the great majority of the allegations of favouritism against individual Commissioners were said to be unfounded.10 The most serious allegation upheld by the Committee was against Commissioner Cresson, who appointed a close friend to a job for which he was not qualified, and whose work was deficient. The fraud that was found to exist was perpetrated by companies to which 7  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2015) Ch 5; M Freedland, ‘Government by Contract and Private Law’ [1994] PL 86. 8  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999). 9  Reforming the Commission, COM (2000) 200. 10  There were, however, previous instances where there had been concern over Commission behaviour, D Spence, ‘Plus ca change, plus c’est la meme chose? Attempting to reform the European Commission’ (2000) 7 JEPP 1, 9–10.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

39

work had been contracted out by the Commission, and the mismanagement resided in the Commission’s failure to detect this and to act quickly to stop it once it became apparent. This is apparent from the policies examined by the Committee. Tourism can be taken by way of example. Resolutions passed by the Council and European Parliament as early as 1983–4 prompted the Commission to propose to the Council a programme to highlight the economic significance of tourism in the EC, and to integrate tourism more closely with other Community policies than hitherto. 1990 was designated as European Year of Tourism by the Council,11 and this was followed in 1992 by the Council’s adoption of a three-year action plan to assist tourism.12 The total sum involved in these projects was 39.3 million ECUs. The implementation of the action plan was entrusted to the Commission. Directorate-General (DG) XXIII took responsibility and a specific unit was set up within Directorate A to implement the Community tourism policy. There were two main problems with administration of this policy. The Head of the Tourism Unit engaged in unauthorized activities that gave rise to embezzlement, corruption, and favouritism. The Committee of Experts felt that the Commission had been slow in checking whether the accusations levelled against the Head of the Unit were well founded, that the internal inquiries were incomplete, and that the penalty imposed was too lenient.13 There were also problems with the use of external consultants to whom work had been contracted out. The Committee of Experts criticized the fact that there was no adequate supervision of the consultants with the result that ‘those consultants performed managerial duties incumbent on officials and played an important role in the selection and monitoring of projects’,14 and there were unjustified payments made to the firm. Underlying these specific concerns was a more general problem, which was a factor in all the programmes studied by the Committee of Experts: insufficient staff within the Commission. The tourism project was managed by eleven people subject to Staff Regulations, and an external c­ onsultancy. The shortage of human resources undoubtedly contributed to management weaknesses and administrative failures.15 The Committee of Experts was critical of the College of Commissioners for proposing the tourism initiative without having the resources to do the job, more especially since the action plan involved the management of a large number of undertakings.16 Similar problems with contracting-out were apparent in relation to the MED programmes. These provided for decentralized cooperation with non-member countries of the southern Mediterranean. The aim was to strengthen political and economic cooperation with these countries to counterbalance aid given to countries in Central and Eastern Europe. A central theme of the programmes was that governmental

11  Council Decision 89/46/EEC of 21 December 1988 on an action programme for European Tourism Year (1990) [1989] OJ L17/53. 12  Council Decision 92/421/EEC of 13 July 1992 on a Community action plan to assist tourism [1992] OJ L231/26. 13  Committee of Independent Experts, First Report (n 1) [2.8.1]–[2.8.3]. 14  Ibid [2.5.6]. 15  Ibid [2.7.7]. 16  Ibid [2.9.1].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

40

ADMINISTRATION AND LAW

s­ tructures should be avoided and that funds should be channelled to non-governmental organizations (NGOs). The total budget for 1992–6 was 116.6 million ECUs. The principal criticism of the MED programmes was that the Commission had illegally delegated its powers to a third party, ARTM, rather than merely signed a service contract. The terms of the contract entrusted ARTM with the implementation of the financing of the programme and gave it broad powers to manage the programme as a whole. The Committee’s Report acknowledged that the Commission did not have sufficient manpower to undertake the task in-house,17 but felt that this did not excuse delegation to the private sector without a sufficient control structure. The difficulties of maintaining control when work is contracted out were equally apparent in the context of the European Community Humanitarian Assistance Office (ECHO). It was established on 1 March 1992 to give the EC a more effective means for providing aid in emergency relief situations.18 During its first six years it disbursed some 3,500 million ECUs in aid. It did so largely through partner organizations, such as NGOs. ECHO was established as a new Directorate. The demands upon it grew, but there was no corresponding increase in its staff. Nor were there well-recognized financial or organizational procedures to regulate its activities.19 Budgetary appropriations were used in an irregular manner, since money intended for operations was used to finance staffing. Many within ECHO regarded this as a mere administrative irregularity, since the money was being used to cover staff that were necessary for ECHO to perform its tasks. The Committee of Experts took a different view. It concluded that if the system itself was inadequate, then it invited irregularity.20 It was also critical of the lateness of the Commission’s response to the problems with ECHO. Commission intervention only occurred four years later when a whistle-blower ­intervened.21 It was, moreover, clear that the Commissioners themselves were aware of the problem. The problems encountered with the running of the Leonardo da Vinci programme, launched in 1995, were particularly instructive. The programme was authorized by a Council Decision,22 and its objective was the implementation of a vocational training policy in support of initiatives conducted by individual Member States. It was to last for five years, from 1995–9, and had an appropriation of approximately 620 million ECU. The rationale for contracting-out was succinctly captured by the Committee.23 Normally, such a programme would have been implemented by the Commission’s services themselves. However, because of a lack of staff within DG XXII, and since it appeared impossible to re-deploy the necessary staff from other services in the Commission, it was decided to outsource the implementation of the project to a ‘technical assistance office’ following a public call for tender.

17  Ibid [3.4.1]–[3.4.3]. 18  Ibid [4.1.1]. 19  Ibid [4.2.2]. 20  Ibid [4.2.5]. 21  Ibid [4.2.10]. 22  Council Decision 94/819/EC of 6 December 1994 establishing an action programme for the implementation of a European Community vocational training policy [1994] OJ L340/8. 23  Committee of Independent Experts, First Report (n 1) [5.2.2].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

41

A firm called Agenor SA was awarded the five-year service contract, after tender, and it was renewable annually. Agenor therefore constituted the technical assistance office (TAO) for the Leonardo programme. Its main function was to manage several thousand project proposals per year and involved ‘complex processing procedures through a chain of operations leading to the selection of some 750 projects per year by the Commission’.24 Audit revealed that Agenor was in receipt of detailed information about the Leonardo programme prior to publication of its tender; the company was in breach of its contract conditions; it was not in compliance with national tax or social security laws; the company had a poor system of internal control; and there was some evidence that funds had been misappropriated. The Committee questioned whether Agenor’s deficiencies could have occurred without having become known at the highest level of DG XXII,25 and Agenor’s contract was only terminated on 31 January 1999. The European Parliament was, moreover, kept in the dark about these problems, which was important because it was considering a second Leonardo programme. The Committee of Experts was, however, aware of the need for contracting-out as  exemplified by its discussion of nuclear safety policy. The Commission had some responsibility in relation to nuclear safety since 1975. The Chernobyl accident in 1986 revealed the dangers of nuclear plants in the Soviet Union that did not conform to safety requirements. The EC therefore decided to allocate approximately 845 million ECUs for nuclear safety programmes. The Community resources were delivered under the TACIS and PHARE programmes. DG IA within the Commission managed the programme. The Committee of Experts drew on a Court of Auditors’ Report,26 which was critical of the excessive delegation and transfer of responsibilities to third parties. The Committee of Experts put the matter in the following way.27 The DG IA unit in charge of the programmes did not have the necessary manpower at its disposal, in terms of numbers and expertise, to draw up the nuclear safety programmes, follow them up and monitor implementation. For this reason, the Commission delegated some of its responsibilities to the Twining Programme Engineering Group (TPEG) and to supply agencies to such an extent that the Court of Auditors termed these delegations excessive and likely to jeopardise the institution’s independence.

The Committee of Experts did not, however, share all the criticisms voiced by the Court of Auditors.28 The Committee of Experts concluded that there were no grounds for saying that the implementation of the nuclear safety programme gave rise to fraud or serious irregularities.

(C) The Committee of Independent Experts’ Conclusions The final section of the Report contained the Committee’s conclusions from the detailed studies which it had undertaken. Three general points stand out in this respect. 24  Ibid [5.2.3]. 25  Ibid [5.4.9]. 26  Special Report No 25/98 [1999] OJ C35/1. 27  Committee of Independent Experts, First Report (n 1) [7.4.1]. 28  Ibid [7.4.9], [7.7.2].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

42

ADMINISTRATION AND LAW

The first was that the Commissioners did not have sufficient control over the administration. There were no cases in which Commissioners were directly or personally involved in fraudulent activities, but protestations by the Commissioners that they were unaware of the problems later brought to light were ‘tantamount to an admission of a loss of control by the political authorities over the Administration that they are supposedly running’.29 There were, moreover, instances where the Commissioners or the Commission as a whole bore some responsibility for fraud, irregularities, or mismanagement in their services.30 The second point concerned staffing. A common theme in the programmes studied was the need to contract out because of inadequacies in staffing levels in the Commission. The Committee was not on the whole sympathetic with this rationale for the manner of carrying out Community policies. It took the view that the Commission should never have taken on policies when it lacked the proper resources to do so. Thus ­speaking of the MED programmes, the Committee stated that the ‘Commission as a whole deserves serious criticism (as in other cases under review) for launching a new, politically important and highly expensive programme without having the resources— especially staff—to do so’.31 Similar sentiments were expressed about the ECHO policy,32 and the Leonardo programme.33 The Committee also felt that the Commission should have made better use of the staff which it did possess. Thus, the Committee spoke of a failure by the Commission to set priorities, and that there were as ‘many fiefdoms as there are Commissioners’.34 The third point which emerged from the Committee’s conclusions was that the ­control and audit procedures within the Commission were not able to rectify the ­problems in good time.

3  Service Delivery and Accountability The Report by the Committee of Independent Experts was important for its evaluation of programmes administered by the Commission. The Committee’s conclusions deserved to be taken seriously. There were, however, issues on which there was more to be said about responsibility for what occurred in the past, and the lessons for the future.

(A) Responsibility for Policies Where There were Staff Shortages We have seen that shortage of staff in-house was a major reason why the Commission contracted out work. The Committee was for the most part unsympathetic to the Commission in this respect for three reasons: the Commission should never have undertaken these programmes without the requisite staff; it should have calculated the 29  Ibid [9.2.2]. 32  Ibid [9.2.6].

30  Ibid [9.2.3]. 33  Ibid [9.2.7].

31  Ibid [9.2.5]. 34  Ibid [9.4.6].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

43

aggregate calls on its resources and prioritized between such demands; and the Commission should have asked for budget increases to cover the extra staffing required. This critique can, however, be questioned. The conception of EC policy formation that underlies this critique is overly ­simplistic. The picture of Community decision-making captured in the aphorism ‘the  Commission proposes, the Council disposes’, may well have characterized ­policymaking in the early years of the Community. It no longer captured the more complex reality whereby Community legislation was made at the end of the last millennium. The European Parliament, since the Single European Act 1986, had a real input into the content of such legislation. Nor was the Council a mere passive receptor, awaiting ­legislative proposals from the Commission, since approximately 40 per cent of Commission proposals originated in suggestions made by the Council pursuant to Article 208 EC. If blame is to be ascribed for proposing policies with inadequate resources it should not be laid solely at the door of the Commission. The programmes under examination did not emerge simply as a result of a Commission initiative. There were often resolutions from the Council and European Parliament, which were taken forward by the Commission. This was recognized at certain points in the Committee’s Report, albeit not developed. Thus the Committee stated that the ‘European Parliament and the Council have imposed on the Commission more and more tasks, while at the same time applying rigorous budgetary restrictions’.35 The Council and Parliament cannot therefore evade all responsibility for ensuring that the resources were there to do the job. Legislative power is shared between the Council, European Parliament, and Commission. So too should legislative responsibility. The Committee’s critique was also that the Commission should have better calculated the overall demands on its resources and that the College of Commissioners should have drawn up a list of priorities. There is force in this point. There should and could have been more macro-level planning by the Commission. The difficulties of undertaking such exercises should not, however, be forgotten. This is particularly so in the context of a decision-making structure such as the EC, where legislative power is shared, with the consequence that it might be difficult for the Commission to determine precisely when, or indeed whether, a new programme would come ‘on line’. Proposals for a programme might be included in the annual legislative agenda, but whether they are actually enacted by the Council and Parliament might be affected by a whole range of factors which could not easily be foreseen. Accurate macro-level planning is obviously all the more difficult in such circumstances. The final element of the Committee’s critique concerning resourcing is that the Commission should have pressed for budget increases. The Committee’s response to the use of contracting-out, auxiliary staff, and the like because of staff shortages was that ‘the Commission can put forward whatever proposals it sees fit with regard to its Establishment Plan when it submits its preliminary draft budget to the budgetary

35  Ibid [5.8.2], [9.4.5].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

44

ADMINISTRATION AND LAW

authority’.36 It was for that reason that the Committee felt that the ‘excuses referring to the shortage of human resources were at odds with the decisions taken by the Commission itself to continue the policy of austerity budgets since 1995’.37 How much leeway the Commission really had to propose such budget increases may be doubted. The passage of the budget is a complex process in which the Commission, Council, and European Parliament all have input. The resulting budget is perforce dependent on political and economic factors. The Committee recognized that the Council and Parliament were imposing on the Commission an increasing range of tasks, while at the same time maintaining rigorous budget restrictions.38 The Commission then had to make a political calculation as to whether it was realistic to press for budget increases relating to staff. It could be argued that if the Commission felt thus constrained it could have declined to take on new programmes. Yet this too oversimplifies the way in which political institutions operate. It would have been difficult for the Commission to reject important new initiatives pressed by the Council and the European Parliament, since this would have looked like failure on its part whatever the reality was.

(B) The Legitimacy of Contracting-Out as a Method of Service Delivery The second issue which is worthy of comment concerns the legitimacy of contractingout as a method of service delivery. Most of the Community policies implemented in the past had been executed with the help of national bureaucracies. The programmes analysed in the Committee’s Report were different. They were either designed consciously to bypass national bureaucracies, as in the case of the MED programmes; or they entailed the direct evaluation of large numbers of project bids, as in the case of the Tourism and Leonardo initiatives; or the very nature of the programme necessitated working with a range of NGOs, as in the case of the ECHO. These programmes therefore required more direct implementation of policy than had been the case hitherto. In the absence of sufficient staff in-house, it became necessary to contract out much of the work. The Reports of the Court of Auditors, and that of the Committee of Experts, show the need for proper supervision if contracting-out is to be acceptable. Indeed, the costs of such supervision need to be borne in mind when undertaking the economic calculus about the pros and cons of this strategy. The Committee’s more general words about contracting-out in the context of the Leonardo programme could be extended to all of the cases studied.39 The implementation of Community programmes by private contractors can only be accepted on the basis of a guarantee that the essence of the public function is not abandoned into the hands of the private contractor. Moreover, those private contractors must be subject to contractual provisions imposing strict obligations in the general interest, and the public authorities must effectively supervise this action. It is clear that such supervision has 36  Ibid [9.4.2].

37  Ibid [9.4.2].

38  Ibid [5.8.2].

39  Ibid [5.8.3].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

45

not been exercised with sufficient care in the present case vis-à-vis the Leonardo/Agenor TAO. It would seem that excessive confidence has been placed in the TAO, and thus excess reliance on outside consultants.

Notwithstanding this extract, the impression created by some parts of the Committee of Experts’ Report, is that contracting-out was an unfortunate by-product of the Commission’s resourcing problem. If this problem had been properly addressed there would have been less need for contracting-out. There is no doubt that if the Commission had possessed more resources in-house there would have been no need for the subterfuges used to staff ECHO, supervision of all the programmes would have been that much easier, and there would have been less likelihood that public sector policy responsibility would have been transferred to the private sector, as was the case in ­relation to some programmes. It should, nonetheless, be recognized that contracting-out must and should remain an option for the delivery of public services, as recognized in the Committee’s Second Report40 and the Commission’s White Paper.41 Not only must it remain an option, it  will in many instances still be the best option all things considered. The more ­programmes are committed to the direct responsibility of the Commission, without direct input from national bureaucracies, the more the Commission will need to have recourse to contracting-out, as exemplified by nuclear safety. Contracting-out may be necessary or desirable in many other areas. Programmes such as Tourism and Leonardo involved the collection of data, the establishment of criteria by which to evaluate projects, and the actual evaluation of particular proposals. Even if the staffing pressures within the Commission were alleviated it is not clear that it would be desirable in terms of efficiency for this work to be done in-house.42 Contracting-out in such areas, subject to effective Commission oversight, will therefore often be the optimal method of ­delivering programmes.

4  The Prodi Commission and Institutional Reform (A)  The Initial Prodi Reforms Romano Prodi, the new President of the Commission, lost no time in introducing reforms designed to restore faith in the Commission. A paper was produced titled Formation of the New Commission.43 It contained a new Code of Conduct for Commissioners with strict rules about the declaration of interests, and the outside activities which Commissioners are allowed to pursue. The same paper also contained detailed rules about the formation and role of the Commissioners’ private offices. A separate paper entitled the Operation of the Commission44 dealt with a number of

40  See n 8. 41  See n 9. 42  I Harden, The Contracting State (Open University Press, 1992). 43  12 July 1999. 44  12 July 1999.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

46

ADMINISTRATION AND LAW

matters. The Commission’s Rules of Procedure were revised. New working groups of Commissioners were established to ensure the better preparation and coordination of  the Commission’s activities.45 Increased emphasis was placed on closer internal ­coordination within the Commission.46 This was of particular importance. The broad range of activities for which the Commission is responsible, combined with increased decentralization, furthered the need for closer internal coordination to ensure the consistency and effectiveness of the Commission’s actions. The paper, therefore, gave particular emphasis to the setting of priorities, and the need to ensure that the Commission had the resources necessary to meet them.47 In his first major address to the European Parliament, Romano Prodi emphasized these new initiatives.48 He also made it clear that, although it was not at that time formally dealt with in the Treaty, he would not hesitate to ask for the resignation of an individual Commissioner should this prove to be necessary. All of his new team accepted their portfolios on this understanding. These initial reforms introduced by Romano Prodi were followed by the setting up, on 18 September 1999, of a Task Force for Administrative Reform (TFRA) for which Neil Kinnock was given responsibility. The mission statement of the TFRA49 listed the following matters which would be considered: human resources; allocation and use of internal and external resources; management of operational activities; internal financial and budgetary controls; audits; interaction between control services and the European Anti-Fraud Office (OLAF; previously UCLAF); programming; ethics and discipline; and internal communication. The White Paper50 that emerged as a result of this study will be analysed later. Before doing so, it is important to consider the Second Report of the Committee of Independent Experts, since this influenced the recommendations produced in the White Paper.

(B) The Second Report of the Committee of Independent Experts The Second Report of the Committee of Independent Experts was published on 10 September 1999.51 It was a study of major importance covering two volumes and running to 278 pages. It deserves to be read by all those interested in administrative reform within the Community. The Report received nothing like the attention that had been focused on the earlier document, which had led to the downfall of the Santer Commission. In the long term the Second Report was undoubtedly of greater i­ mportance for its insights into the workings of the Commission. It is not possible to do full justice to this Report here. The focus will be on the central recommendations made by the Committee in Volume I. The material covered in Volume II will be analysed where 45  Such groups were established to deal with: growth, competitiveness and employment; equal opportunities; reform; inter-institutional relations; and external relations. 46  The Operation of the Commission, 12 July 1999, 18–22. 47  Ibid 18, 20. 48  Speech by Romano Prodi, President-designate of the European Commission, to the European Parliament, 21 July 1999. 49  20 October 1999. 50  Reforming the Commission, COM (2000) 200. 51  Committee of Independent Experts, Second Report (n 8).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

47

relevant when considering the Commission’s White Paper. Volume I dealt primarily with the different ways in which services are delivered within the Community, the division being between those areas where the Commission has a direct management responsibility, and those instances where this responsibility was shared between the Commission and the Member States. The discussion of direct management was rich, sophisticated, and blunt. Direct management covers those areas where the Commission itself directly manages a programme without the necessary involvement of national administrations, albeit often with the aid of an outside contractor. The area covered at that time one-sixth of the Community budget.52 The Committee accepted that the ‘Commission will in future have a huge number of tasks to perform, the temporary and specialized nature of which requires them to be contracted-out—subcontracting being justified on the grounds of efficiency, expediency and cost’.53 It noted that recourse to such contractingout had never been challenged by the European Parliament or the Council.54 While accepting the need for contracting-out, the Committee was clear that existing arrangements were imperfect. Contracting-out had been undertaken through the medium of TAOs which were, in the Committee’s view, nothing more than Commission contractors.55 The use of TAOs raised problems as to the dividing line between Commission tasks that could be contracted out without any risk to the public service, and ‘those in respect of which the Commission would be abandoning its r­ esponsibilities if it were to delegate them to private companies’.56 The difficulty was to determine what  constituted a public service responsibility.57 The way forward favoured by the Committee was to establish a new type of implementing agency. These should not be permanent, nor should they contain Member State representatives.58 They should exist solely for the duration of the particular project. Such agencies would facilitate the working together of Community officials seconded to the agency, with staff from the private sector.59 The Committee’s Report contained a number of other valuable recommendations in relation to direct management. There should be better training for Community staff, so as to improve their management of contracts.60 The Financial Regulation, the principal legal provision under which disbursements were made, was in need of thorough overhaul,61 as were the complex rules concerning public procurement.62 The position of the authorizing officer should be enhanced.63 The Committee’s discussion of shared management served as a timely reminder of the difficulties of executing policies when administration is shared between different levels of government. While the errors identified in the Committee’s First Report that led to the downfall of the Commission related to direct management, shared management has generated most concern in annual reports of the Court of Auditors. 52  Ibid Vol I [2.1.1]. 53  Ibid Vol I [2.3.1]. See also [2.0.1], [2.3.8]. 54  Ibid Vol I [2.3.1]. 55  Ibid Vol I [2.3.4], [2.3.14]. 56  Ibid Vol I [2.3.10]. 57  Ibid Vol I [2.3.19]. 58  Ibid Vol I [2.3.27]. 59  Ibid Vol I [2.3.27]–[2.3.31]. 60  Ibid Vol I [2.0.5]. 61  Ibid Vol I [2.1.15]–[2.1.19]. 62  Ibid Vol I [2.1.17]. 63  Ibid Vol I [2.2.49]–[2.2.59].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

48

ADMINISTRATION AND LAW

Shared management refers to the management of those Community programmes where the ‘Commission and the Member States have distinct administrative tasks which are inter-dependent and set down in legislation and where both the Commission and the national administrations need to discharge their respective tasks for the Community policy to be implemented successfully’.64 The CAP and the Structural Funds, which at that time took up over 70 per cent of the Community budget, were the prime examples of shared administration. While the Member States had responsibility to counter fraud, the detailed regulations often provided a disincentive for them to do so, an issue to which we shall return in the discussion of shared administration later.65 The Committee’s discussion of both direct and shared management must be seen in the light of its more general recommendations concerning the control environment. It produced a detailed analysis of the shortcomings of internal control and internal audit. Internal or ex ante control had traditionally taken the form of the ‘visa’ system, which was designed to ensure that proposals for expenditure were in conformity with the appropriate rules and procedures. It did not, however, work effectively, and many items of expenditure for which a visa had been granted were later found to be irregular or illegal. The system displaced responsibility for financial regularity from the person actually managing the expenditure onto the person approving it, with the consequence that no one was ultimately responsible.66 The Committee recommended that the authorizing officer should bear responsibility for proposals which he authorized, as opposed to validation by a separate, central authority of the kind hitherto undertaken by the Financial Controller.67 The Committee was equally convinced of the need for change in the system of internal audit. The Financial Controller at that time had overall responsibility for both the visa and audit functions. This dual role caused difficulties where an audit revealed irregularities in relation to payments for which a visa had been issued. The Committee favoured creation of an independent Internal Audit Service, which should report directly to the President of the Commission.68

(C) Reforming the Commission and the White Paper The TFRA produced a consultative document in January 2000,69 and the White Paper appeared in March of the same year.70 Part I of the White Paper set out the general principles on which reform of the Commission was to be based, while Part II contained an Action Plan detailing how these principles were to be achieved. The White

64  Ibid Vol I [3.2.2]. 65  Ch 4. 66  Committee of Independent Experts, Second Report (n 8) Vol I [4.6.2]. 67  Ibid Vol I [4.7.], [4.18.1]. 68  Ibid Vol I, [4.13], [4.18.2]. 69  Consultative Document, Reforming the Commission, CG3 (2000) 1/17, 18 January 2000. 70  Reforming the Commission, COM (2000) 200.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

49

Paper acknowledged the contributions made by the Reports of the Committee of Independent Experts,71 and the DECODE exercise.72 The theme of the White Paper was made clear at the outset. The Prodi Commission wished to concentrate more on core functions such as policy conception, political initiative, and enforcing Community law. The fact that almost half of the Commission officials spent their time managing programmes was not regarded as an efficient use of  resources.73 The execution of Community programmes would, therefore, require identification of those ‘activities that could be more usefully and efficiently executed by other bodies, where necessary, under the control of the Commission’.74 With the Reports of the Committee of Independent Experts firmly in its mind, it was made clear that if the Commission did not have the requisite resources to carry out its tasks, and  more resources were not forthcoming, then the Commission would have to ­discontinue some programmes.75 The modern Commission should be independent, ­responsible, accountable, efficient, and transparent.76 Three more particular themes are explored in the White Paper: priority setting, and the allocation and efficient use of resources; human resources policy; and the overhaul of financial management. The attention given to priority setting, and the allocation and efficient use of resources was to enable the Commission to concentrate on its core activities. Resources had, in the past, not been linked to priorities both because Commission decisions on activities were taken separately from those on the allocation of resources, and because the Council and European Parliament gave the Commission new tasks without providing the extra resources needed.77 This mismatch was to be addressed in part by the introduction of a system of Activity-Based Management (ABM), the object of which was to ensure that decisions about policy priorities and the corresponding resources were taken together within the organization.78 It was also to be addressed by the simplification of working procedures and the introduction of performance-oriented working methods in the Commission.79 The Commission’s wish to concentrate on its core activities was the rationale for what was termed an ‘externalization policy’: the delegation of activities to other bodies. These included Community bodies, decentralization to national public bodies, and contracting out to the private sector.80 Externalization was only to be pursued where it was the most efficient option; it should not be pursued at the expense of accountability; and there had to be sufficient internal resources to ensure proper control. It should not therefore be used for the administration of ill-defined activities, nor where real discretionary power was involved.81 The type of task that was delegated would depend on the 71  Ibid Part I, at 2. 72  Designing Tomorrow’s Commission, A Review of the Commission’s Organization and Operation, 7 July 1999. This exercise was begun in 1997 by the Commission and constituted a review of all the activities which it carried out. The principal objective was to determine what work was being done, why it was being done, who did it, and how the work was being carried out. 73  Reforming the Commission (n 70) Part I, 1. 74  Ibid Part I, 2. 75  Ibid Part I, 2. 76  Ibid Part I, 3–4. 77  Ibid Part I, 4. 78  Ibid Part I, 5–6. 79  Ibid Part I, 6–7. 80  Ibid Part I, 6. 81  Ibid Part I, 7.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

50

ADMINISTRATION AND LAW

body to which it was delegated, with outsourcing to private bodies being subject to the strictest limits.82 There is much that harks back to the Reports of the Committee of Independent Experts. This is also apparent in the suggestion in the White Paper that there should be a new type of implementing body to be headed by Community staff, which was the seed for what became the new breed of executive agency.83 The White Paper proposed a number of detailed changes in relation to human resources.84 These related to management, recruitment, training, career structure, performance appraisal, promotion, and the like. The most interesting point related to career structure. It was recognized that the current system provided little in the way of incentive to good performance or personal initiative, and that it acted as an artificial constraint on those with particular abilities. The White Paper therefore proposed the development of a new and more linear career structure.85 The discussion of audit, financial management, and control also developed a number of the ideas from the Committee of Independent Experts. The White Paper a­ cknowledged that the centralized system of financial control was no longer capable of dealing with the volume of transactions which the Commission had to process. It recognized that the centralized ‘visa’ system of control had not worked and that it gave decision-­ makers  a false sense of security. It accepted also that the position of the Financial Controller, being responsible for the ex ante visa, and the ex post audit, could give rise to a conflict of interest.86 The emphasis for the future was to be on decentralization. Directors-general would exercise the powers currently held by the Financial Controller.87 Financial responsibility would be allocated to authorizing officers within departments: ‘as far as possible the person taking the operational decision to go ahead with an ­operation involving expenditure should also be the one authorising the expenditure’.88 The proposals relating to audit drew heavily on those of the Committee of Experts. There was to be an Internal Audit Service under the authority of the Vice-President for Reform, and each department was to have its own specialized audit c­ apability. There was, in addition, to be an Audit Progress Committee which would monitor the quality of audit work, and the implementation of audit recommendations made by the Court of Auditors.89

5  Implementation of the Reforms An Action Plan was attached to the White Paper highlighting ninety-eight points on which further measures were required in order to implement the broader objectives of the reform agenda. These were carried through by an admixture of formal legislation, 82  Ibid Part II, 17–18. 83  Committee of Independent Experts, Second Report (n 8) Vol I [2.3.27]–[2.3.31]; White Paper (n 70) Part I, 7. 84  White Paper (n 70) Part I, 8–15. 85  Ibid Part I, 10. 86  Ibid Part I, 17. 87  Ibid Part I, 17. 88  Ibid Part I, 16. 89  Ibid Part I, 18.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

51

soft law, and internal administrative reform. The discussion that follows gives a brief overview of changes in the different areas where action was deemed necessary.90

(A)  A Culture Based on Service and Ethical Standards A number of initiatives were passed in order to effectuate the White Paper actions concerning the creation of a more service-based culture. A Code of Good Administrative Behaviour dealing with relations between the Commission and the public came into effect on 1 November 2000. A Regulation was enacted on access to documents held by Community institutions and extended to cover other Community bodies, such as agencies.91 A number of initiatives were concerned with the safeguarding of ethical and professional standards. These included a modified Code of Conduct for Commissioners adopted by the Barroso Commission on 24 November 2004. There were also changes to the disciplinary procedures applicable to staff where there was serious wrongdoing. Guidelines were introduced to deal with under-performance by staff that did not amount to serious wrongdoing, with mechanisms to detect professional incompetence at an early stage.

(B) Priority Setting and the Efficient Use of Resources There were changes to improve policy coordination. There was an ABM Steering Group, which was chaired by the Secretary-General, and included directors-general and cabinets from central services. Changes were made to address the concerns about the setting of priorities and the allocation of resources to meet them. The system now operates as follows.92 The Commission on entering office publishes a five-year programme, setting out the strategic objectives for that period at a relatively high level of generality. Thus the programme for 2015–19 had ten priorities: jobs, growth, and investment; energy union and climate; digital single market; internal market; a fairer economic and monetary union; balanced and fair trade policy; justice and fundamental rights; migration; the EU as a global actor; and democratic change.93 The Commission then proposes an annual work programme, designed to carry forward these initiatives.94 There may, 90  Progress Review of Reform, COM(2003) 40 final; Completing the Reform Mandate: Progress Report and Measures to be Implemented in 2004, COM(2004) 93 final. 91  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. 92 https://ec.europa.eu/info/strategy/decision-making-process_en. 93  https://ec.europa.eu/commission/priorities_en; J-C Juncker, A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change, 15 July 2014, https://ec.europa.eu/commission/publications/ president-junckers-political-guidelines_en; White Paper on the Future of Europe, 1 March 2017, https://ec. europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf. 94  Commission Work Programme 2018, An Agenda for a more United, Stronger and more Democratic Europe, COM(2017) 650 final.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

52

ADMINISTRATION AND LAW

in addition, be priorities within this programme that are jointly agreed between the Council, the European Parliament, and the Commission.95 Each Commission Department establishes a five-year Strategic Plan, setting out its vision for that period.96 It will also publish an Annual Management Plan (AMP) to show how it will contribute towards attainment of the Commission’s annual work programme.97 Thus the AMP translates the priority initiatives and the strategic objectives of the Commission into concrete operations and provides an instrument enabling the management to plan, and report on all the activities and resources of each directorategeneral. Each Department presents an Annual Activity Report (AAR), which mirrors the AMP in the sense of monitoring how far objectives have been realized.98 The cycle ends with Synthesis Reports by the Commission, which assess policy progress, the way in which resources were used, and proposals for remedying deficiencies revealed in the individual reports from the DGs.99 Impact assessment is a prominent feature of the Commission’s legislative planning.100 It is designed to assess the problem and the objectives pursued. It identifies the main options for achieving the objective and analyses their likely impact in economic, ­environmental, and social terms. Impact assessment is regarded as an aid to political decision, not a substitute for it. It informs decision-makers of the impact of proposals, while leaving it to them to take the decisions. Thus, ‘impact assessment identifies the likely positive and negative impacts of proposed policy actions, enabling informed political judgments to be made about the proposal and identify trade-offs in achieving competing objectives’.101 Impact assessment is applied to all major initiatives included in the Commission’s Annual Policy Strategy or Work Programme.

(C) Staff Policy The White Paper listed numerous action points in relation to human resources policy. The centrepiece of the new personnel policy involved significant changes to appraisal and promotion, designed to link merit and career development more closely than had  been the case hitherto. Certain of the modifications concerning staff required amendment to the Staff Regulations, including matters relating to career structure, mobility, welfare policy, pay and pensions, early retirement, and discipline. Change in this area did not prove easy, with staff representatives threatening to reject significant 95  Joint Declaration on the EU’s Legislative Priorities for 2017, 13 December 2016, https://ec.europa.eu/ commission/publications/joint-declaration-eus-legislative-priorities-2017_en. See also https://ec.europa.eu/info/ strategy/decision-making-process/how-decisions-are-made_en. 96 https://ec.europa.eu/info/publications/strategic-plans-2016-2020_en. 97  https://ec.europa.eu/info/publications/management-plans_en; https://ec.europa.eu/info/publications/ management-plans-2017_en. 98 https://ec.europa.eu/info/publications/annual-activity-reports_en. 99  Annual Management and Performance Report for the EU Budget, COM(2017) 351 final. 100 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en. 101  Impact Assessment, COM(2002) 276 final, 2. See also Impact Assessment Guidelines, SEC(2009) 92, http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/iag_2009_en.pdf.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

53

parts of a draft document and to strike. A mediator was appointed, the draft regulations were amended, and the new Staff Regulations entered into force on 1 May 2004.102

(D) Financial Management, Control, and Audit The White Paper listed numerous matters relating to financial management that should be addressed. Many of these were dealt with through the Financial Regulation, which established a constitutional framework for EU administration that had not existed hitherto. The term constitutionalization has a plethora of meanings. Its use here signifies that the principles governing EU administration have been enshrined in a norm of constitutional importance, and that these principles frame Union administration. The previous Financial Regulation was enacted in 1977, and had been amended on many occasions.103 The Financial Regulation 2002,104 based on Commission proposals,105 provided a legal framework for EU administration. The detailed provisions concerning direct and shared management will be considered in the chapters that follow. This ­distinction was, as we have seen, central to the Second Report of the Committee of Independent Experts, and to the Commission White Paper. It was embodied in the Financial Regulation 2002. Chapter 2 of Title IV, Implementation of the Budget, was concerned with Methods of Implementation. Article 53 of the Financial Regulation provided that the Commission should implement the budget either on a centralized basis or by shared or decentralized management, or by joint management with international organizations. There were also significant organizational changes as a result of the Financial Regulation. An Independent Internal Audit Service106 was established in July 2001. There are also specialized audit services within each DG, which report directly to the director-general or head of department.107 The Financial Regulation 2002 was replaced by a new Financial Regulation 2012,108 in order to accommodate requirements of the Lisbon Treaty, and to introduce changes felt desirable in the light of experience thus far. The relevant changes were touched on

102  Council Regulation (EC, Euratom) 723/2004 of 22 March 2004 amending the Staff Regulations of the officials of the European Communities and the Conditions of Employment of other servants of the European Communities [2004] OJ L124/1. 103 Financial Regulation of 21 December 1977 Applicable to the General Budget of the European Communities [1977] OJ L356/1. 104  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1, as amended by Council Regulation 1995/2006 [2006] OJ L390/1. 105  Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the  EC, COM(2000) 461 final; Amended Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2001) 691. 106 http://ec.europa.eu/dgs/internal_audit/index_en.htm. 107 http://ec.europa.eu/budget/explained/reports_control/audits/audits_en.cfm. 108  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

54

ADMINISTRATION AND LAW

earlier109 and will be considered in detail later.110 Suffice it to say for the present that the Financial Regulation 2012 retains the basic divide between centralized, shared, and decentralized administration, although there are some differences in the detailed working through of these principles.

6  Conclusions and Assessment The forced resignation of the Santer Commission sent shockwaves through the Commission bureaucracy. It prompted a wide-ranging inquiry into the methods of administration and service delivery within the EU. There were, nonetheless, concerns that the lessons learned from the experience, embodied in the reports of the Committee of Independent Experts and in the Commission White Paper, might simply gather dust in the manner redolent of some previous reform initiatives. This did not happen. The Commission to its credit did not deny the need for reform. It followed through on the ‘action points’ listed in the White Paper. It crafted the Financial Regulation, which gave formal legal force to many of the more particular suggestions for reform contained in the earlier reports. The Financial Regulation is not a panacea for all ills, real and imagined, that have beset EU administration. Nor, as we shall see in subsequent chapters, does it address all the modes by which the EU delivers policy. It is, nonetheless, an important initiative that provides a principled foundation for central aspects of EU administration, direct and shared. The Commission has, moreover, also undertaken the other reforms adumbrated earlier, some enshrined in formal legislation, others in codes, and yet others brought about through internal administrative change. It is, however, important to keep a perspective on what has and what has not been achieved. The Commission documentation on implementation of the reforms read somewhat in the manner of a check list, with itemization of action points that had been met. To be fair, the Commission also recognized that reform is a ‘process of change and discovery’111 rather than simply an endpoint to be measured in terms of compliance with the ninety-eight issues listed in the White Paper. There is, nonetheless, still room for disagreement within the EU as to how far the reforms addressed the relevant problems. This is readily apparent from a reading of the Court of Auditors’ Report 2003.112 Thus the Report stated with reference to expenditure through shared management that while progress had been made in relation to financial probity, the ‘Court has no ­reasonable assurance that the supervisory systems and controls of significant areas of  the budget are effectively implemented so as to manage the risks concerning the legality and regularity of the underlying operations’.113 The Court of Auditors believed

109  See 22–3. 110  See 57–60. 111  Progress Review of Reform (n 90) 1. 112  Court of Auditors, Annual Report Concerning the Financial Year 2003 [2004] OJ C293/1. 113  Ibid [0.4].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Crisis, Reform, and Constitutionalization

55

that the annual activity reports from the Directors-General could not yet systematically serve as a useful basis for its audit conclusions,114 and regarded the Commission’s assessment that all the action points from the White Paper had been completed or that significant progress had been made as ‘very optimistic’.115 The Commission by way of response acknowledged that certain problems could only be effectively resolved in the medium term. The possible second-order consequences of reforms that have been achieved should also have been borne in mind. Thus the emphasis placed on financial regularity can lead to a culture in which the individuals at the front line responsible for authorizing expenditure become overly wary of doing so. It is equally important to remember that the success of any part of the reform strategy is, as the Committee of Independent Experts wisely noted, dependent upon a more general modification in the culture of the Commission. Formal responsibilities can be enshrined in codes of conduct and the like, but this must not be ‘confused with respect for substance’.116 The very idea of responsibility captures a range of ideas including personal integrity, formal procedural safeguards, and institutional accountability.117 It should be equally recognized that the successful, fair, and efficient delivery of EU policies is not the responsibility of the Commission alone. The Council and the European Parliament have important roles in the legislative and budgetary process. They cannot shift all responsibility to the Commission when things go wrong. If the EU wishes to take on new tasks, or to develop existing policies, then the Council and the European Parliament must recognize that this cannot be done without the requisite resources. If the political will is not there to secure these resources then this should be recognized at the outset, so that the Commission is not saddled with the administration of policies which it is unable to deliver. We should finally be mindful of the different roles played by law in this area. Law, in the form of general EU legislation, establishes the overarching principles to govern Union administration, as exemplified by the Financial Regulation. Law, in the form of specific EU legislation, encapsulates choices that can markedly affect success or failure, as exemplified by the regulations governing the CAP and the Structural Funds.118 Law is used to legitimate new institutions for policy delivery, such as executive agencies.119 Law, in the form of judicial review, has a Janus-like focus. The EU Courts will control abuse of administrative power. They also use judicial review to read EU legislation in the manner that best conforms to the Union interest. We must also be aware of the limits of law. The bypassing of formal legal norms by key players, and the legal response, is a fascinating part of the story.

114  Ibid [1.70]. 115  Ibid [1.72]. 116  Committee of Independent Experts, Second Report (n 51) Vol II, [7.1.4]. 117  Ibid Vol II, [7.1]–[7.16]. 118  Ch 4. 119  Ch 3.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

3 Centralized Management 1 Introduction The previous chapter charted the reforms made in the aftermath of the fall of the Santer Commission, including the emergence of a constitutional framework for Union administration embodied1 in the Financial Regulation 2002.2 The divide between centralized and shared administration was central to the reform initiatives and also to the structure of the Financial Regulation 2002, now contained in the Financial Regulation 2012.3 This chapter will take the story forward by considering the regime that governs centralized EU administration. The discussion begins with a brief overview of the rationale for centralized administration and the problems encountered in the past. This will be followed by detailed analysis of the regime for centralized administration found in the Financial Regulation and related instruments. There will then be examination of the use of executive agencies in specific areas of EU policy, with a particular focus on the energy sector. The discussion concludes with reflections on the role of law within centralized EU administration.

2  Nature and Rationale The most common pattern of EU administration has been shared, with the Commission working directly with national bureaucracies to implement policy in areas such as the Common Agricultural Policy (CAP), Structural Funds, customs, and utility regulation. The essence of shared administration is, as will be seen in the next chapter, that Union 1  Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2000) 461 final; Amended Proposal for a Council Regulation on the Financial Regulation Applicable to the General Budget of the EC, COM(2001) 691. 2  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1, as amended by Council Regulation 1995/2006 [2006] OJ L390/1. 3  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1. A revised version of the Financial Regulation has been drafted in 2018, see below (n 162).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

57

legislation imposes formal legal obligations on both the Commission and the Member States for the effective implementation of a particular administrative regime. The essence of centralized management, by way of contrast, is that EU legislation imposes obligations on the Commission to discharge policies without any systematic relationship with national administrations. Centralized management does not, however, necessarily mean that the Commission undertakes the activity ‘in house’. It may do so, in which case we then have direct centralized administration. It may not do so, in which case we then have indirect centralized administration, where the Commission chooses to implement the policy through contracting-out,4 or one of the other m ­ echanisms discussed later. The Commission will normally have discretion as to whether to undertake the activity directly or indirectly, although the Financial Regulation imposes some constraints in this respect. The Commission has increasingly undertaken administration centrally for a variety of reasons: it was given wider responsibilities; the subject matter did not necessarily lend itself to shared management; and the Commission felt that certain policies were best implemented through non-governmental organs. Initiatives in relation to tourism, cooperation with non-member countries of the southern Mediterranean (the MED programmes), emergency aid, vocational training (the Leonardo da Vinci programme), nuclear safety policy, as well as the TACIS and PHARE programmes, have been managed directly by the Commission.

3  Financial Regulation (A)  Financial Regulation 2002: General Principles The relevant principles were laid down in the Financial Regulation 2002, Title IV, Implementation of the Budget, Chapter 2 of which was concerned with Methods of Implementation. The Commission should, in accord with Article 53, implement the budget either on a centralized basis, or by shared or decentralized management, or by joint management with international organizations. Centralized management covered those instances where the Commission implemented the budget directly through its departments, or via an executive agency, or where it implemented the budget indirectly.5 The principles concerning indirect centralized implementation were set out in Article 54. The Commission was not allowed to delegate its executive powers to third parties where they involved a large measure of discretion implying political choices. The implementing tasks that were delegated had to be clearly defined and fully supervised.6 Within these limits the Commission could entrust tasks to four types of body: executive 4  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [2.3.1], [2.0.1], [2.3.8]; Reforming the Commission, COM(2000) 200. 5  Reg 1605/2002 (n 2) Art 53(a). 6  Ibid Art 54(1).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

58

ADMINISTRATION AND LAW

agencies;7 EU bodies as referred to in Article 185 EC and other specialized EU bodies, such as the European Investment Bank (EIB), provided that this was compatible with the tasks of each body as defined in the basic act;8 national or international public sector bodies or bodies governed by private law with a public service mission providing adequate financial guarantees and complying with the conditions provided for in the implementing rules;9 and persons entrusted with specific Common Foreign and Security Policy (CFSP) actions.10 The delegation of executive tasks to these bodies had to be transparent, and the procurement procedure had to be non-discriminatory and prevent any conflict of interest. There were rules mandating an effective internal control system for management operations, proper accounting arrangements, and an external audit.11 Before the Commission entrusted implementation to the preceding bodies it had to ensure that there were proper control and accounting systems in place, and proper procedures for the award of contracts and grants.12 The Commission was not allowed to entrust implementation of funds from the budget, in particular payment and recovery, to external private sector bodies, other than those which had a public service mission guaranteed by the state, or in specific cases where the payments involved were made to beneficiaries determined by the Commission, were subject to conditions and amounts fixed by the Commission, and did not involve the exercise of discretion by the entity or body making the payments.13 The Commission was empowered to entrust such private sector entities with tasks involving technical expertise and administrative, preparatory, or ancillary tasks involving neither the exercise of public authority nor the use of discretionary judgment.14

(B)  Financial Regulation 2012: General Principles The Financial Regulation 2012 continued this schema, albeit with some modification.15 It was enacted to accommodate requirements of the Lisbon Treaty, and to introduce changes felt desirable in the light of experience thus far. The Financial Regulation 2012 stipulates that the Commission can implement the budget by its departments, through Union delegations, or by executive agencies, all of which are regarded as direct centralized administration.16 It is also open to the Commission to implement policy indirectly by entrusting it to:17 (i) third countries or the bodies they have designated;   (ii)  international organisations and their agencies;

7  Ibid Art 54(2)(a). 8  Ibid Art 54(2)(b). 9  Ibid Art 54(2)(c). 10  Ibid Art 54(2)(d). 11  Ibid Art 56(1). 12  Commission Regulation (EC, Euratom) 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation 1605/2002 [2002] OJ L357/1, Art 35, as amended by Commission Regulation 478/2007 [2007] OJ L111/13.    13  Reg 1605/2002 (n 2) Art 57(1). 14  Ibid Art 57(2). 15  Reg 966/2012 (n 3). 16  Ibid Art 58(1)(a). 17  Ibid Art 58(1)(c).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

59

(iii) (iv) (v) (vi)

the EIB and the European Investment Fund [or any other subsidiary of the Bank]; bodies referred to in Articles 208 and 209; public law bodies; bodies governed by private law with a public service mission to the extent that they provide adequate financial guarantees; (vii) bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that provide adequate financial guarantees; (viii) persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

The choice of certain of the bodies listed above is constrained by subject matter. Thus, for example, third countries will only be used for implementation in relation to EU projects, usually concerned with aid or development, to be undertaken therein. Subject to this caveat, the Commission has significant discretion in making the choice as between these bodies. Thus Article 61(2) provides that when choosing an entity from categories (ii), (v), (vi), and (vii) the Commission shall take ‘due account of the nature of the tasks to be entrusted as well as the experience and the operational and financial capacity of the entities concerned’. The choice must be justified on objective grounds and must not give rise to a conflict of interest. The Commission, as under the 2002 Financial Regulation, cannot entrust third parties with executive powers it enjoys under the Treaties where they involve a large measure of discretion implying political choices,18 and it retains responsibility for supervising tasks entrusted to such bodies.19 The Commission is also generally precluded, as under the 2002 Financial Regulation, from entrusting measures of implementation of funds deriving from the budget, including payment and recovery, to external private sector entities or bodies, except in the cases in points (v), (vi), and (vii) above, or in specific cases where the payments involved are made to beneficiaries determined by the Commission, are subject to conditions fixed by the Commission and do not involve the exercise of discretion by the body making the payments.20 The tasks that can be entrusted by contract to external private sector entities or bodies, other than those which have a public service mission, are technical expertise tasks and administrative, preparatory, or ancillary tasks involving neither  the exercise of public authority nor the use of discretionary powers of judgment.21 The Financial Regulation 2012 elaborates further principles concerning indirect implementation through entities other than Member States, which build on those contained in the 2002 Regulation. The bodies listed above must respect the principles of sound financial management, transparency, and non-discrimination.22 They must have in place adequate systems to protect the EU’s financial interests, including an

18  Ibid Art 58(7).    19  Ibid Art 60(6).    20  Ibid Art 63(1). 21  Ibid Art 63(2).   22  Ibid Art 60(1).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

60

ADMINISTRATION AND LAW

effective and efficient internal control system, a proper accounting system, and external audit.23 The Financial Regulation 2012 has also reinforced the duties incumbent on such bodies, by stipulating that they ‘shall prevent, detect and correct irregularities and fraud when executing tasks relating to the implementation of the budget’.24 This requires them to carry out ex ante and ex post controls to ensure that the actions financed from the budget are effectively carried out and implemented correctly, recover funds unduly paid, and bring legal proceedings as necessary. The Commission can suspend payments to such bodies if, inter alia, there are systemic errors in such control systems, and the authorizing office can interrupt the flow of payments when, for ­example, there is information indicating a significant deficiency in the functioning of the internal control system.25 The bodies responsible for implementation have obligations to report results, produce accounts, and an audit trail.26 It is not possible within the constraints of this chapter to consider in detail all the variants of centralized administration. The remainder of the chapter will, therefore, examine the more detailed rules that govern some instances of centralized administration, both direct and indirect.

4  Management by the Commission: Power and Responsibility Public lawyers will be aware of the importance of proper control systems when dealing with contracting-out and the like. Such systems are a necessary, albeit not sufficient, element in the accountability of public administration. This is reinforced by the findings of the Committee of Independent Experts. They revealed that many of the problems with direct management were integrally linked to deficiencies in relation to financial controls. The basic provision was the Financial Regulation of 1977.27 It had been amended many times, but certain fundamentals remained largely unchanged. Two were especially significant. First, the authorization of expenditure and the collection of revenue were both in the hands of the Financial Controller of each EU institution. It was the Financial Controller that would give the ‘visa’ authorizing the expenditure, and it was the Financial Controller that would collect the revenue.28 Secondly, there was a separation of function between the authorizing officer and the accounting officer. The former entered into the financial commitments, subject to the grant of a ‘visa’ by the Financial Controller, and the latter actually carried out the relevant operation.

23  Ibid Arts 60(2), 61(1). 24  Ibid Art 60(3). 25  Ibid Art 60(4). 26  Ibid Draft Art 60(5). 27  Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities [1977] OJ L356/1. 28  Ibid Art 24.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

61

The Committee of Independent Experts was critical of this regime.29 The Financial Controller’s responsibility for ex ante control, and ex post audit, could lead to a conflict of interest. The centralization of ex ante control in the Financial Controller through the visa system was ineffective. Control of expenditure should be decentralized to the Directorates-General. The responsibility for authorization of expenditure should be linked to responsibility for the carrying out of the operation.30 Responsibility should, in this sense, be ‘repatriated’31 through decentralization to those officers authorizing the expenditure. These ideas were taken up in the White Paper on Reforming the Commission. The aim was to create ‘an administrative culture that encourages officials to take responsibility for activities over which they have control—and gives them control over the activities for which they are responsible’.32 The system of ex ante visas proved ­inadequate to assess the correctness of financial operations,33 and led to a culture that denuded officials of responsibility. The Financial Regulation gives legal force to these ideas. The duties of the authorizing officer and the accounting officer are separated.34 The latter is responsible for payments, collection of revenue, keeping the accounts, and the like.35 It is, however, the authorizing officer that is central to the whole scheme. Each institution ‘performs’ the duties of authorizing officer.36 It lays down rules for the delegation of these duties to staff of an appropriate level, specifies the scope of the powers delegated and the possibility for sub-delegation.37 The authorizing officer to whom power has been delegated makes the budget and legal commitments, validates expenditure, and authorizes payments.38 The authorizing officer to whom power has been delegated must establish the organizational structure and internal management and control procedures suited to the performance of his or her duties. Before an operation is authorized, members of staff other than the person who initiated the operation must verify the operational and financial aspects.39 The provisions on expenditure reinforce the centrality of the authorizing officer. Every item of expenditure must be committed, validated, authorized, and paid.40 The budget commitment consists of making the appropriation necessary to cover a legal commitment. The legal commitment is the act whereby the authorizing officer enters an obligation to third parties, which results in expenditure being charged to the budget. The same authorizing officer undertakes the budget and legal commitment,41 and the former must precede the latter.42 It is for the authorizing officer, when adopting a budget commitment, to ensure that the appropriations are available, that the ­expenditure conforms to the relevant legal provisions, and that the principles of sound financial

29  Committee of Independent Experts, Second Report (n 4) [4.6]–[4.7.2]. 30  Ibid [4.7]. 31  Ibid [4.7.2]. 32  Reforming the Commission (n 4) Part I, 19. 33  Ibid 21. 34  Reg 966/2012 (n 3) Art 64. 35  Ibid Art 68. 36  Ibid Art 65(1). 37  Ibid Art 65(3). 39  Ibid Art 66(5). 40  Ibid Art 84. 38  Ibid Art 66(3). 41  Ibid Art 85(1), subject to limited exceptions. 42  Ibid Art 86(1).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

62

ADMINISTRATION AND LAW

management are complied with.43 It is the authorizing officer that is responsible for validation of expenditure: the creditor’s entitlement to payment, and the conditions on which it is due.44 The onus is also on the authorizing officer to authorize the expenditure through the issuance of a payment order for expenditure that has been validated.45 These rules are designed to give authorizing officers the entire responsibility for the internal controls in their departments and for the financial decisions they take in the exercise of their functions. There are rules as to the financial liability of authorizing and accounting officers.46 The internal auditor is also central to the reform package. The idea was strongly advocated by the Committee of Independent Experts,47 and endorsed by the Commission White Paper.48 The central idea was to establish an Internal Audit Service, the auditors of which would advise the institutions about proper budgetary ­procedures, and the quality of their management and control systems. They are intended to help authorizing officers by providing a check on the overall systems adopted. The Financial Regulation made provision for internal auditors,49 and the Internal Audit Service published a Charter to describe its role.50

5  Management by Executive Agencies: Policy and Implementation The origins of executive agencies are to be found in the Committee of Independent Experts’ Second Report. The Committee noted that technical assistance offices were nothing more than contractors, who undertook work for the Commission.51 It was the weak controls over such firms that led to the problems highlighted in the Committee’s First Report. The creation of implementing agencies was seen as a way of alleviating these problems.52 The Financial Regulation makes provision for such executive agencies.53 There is also a framework Regulation dealing specifically with these agencies.54 It is important to read this Regulation within the broader context of the other institutional reforms. The objective is to foster flexible, accountable, and efficient management of tasks assigned to the Commission. Policy decisions remain with the Commission,

43  Ibid Art 87. 44  Ibid Art 88. 45  Ibid Art 89. 46  Ibid Arts 71–75. 47  Committee of Independent Experts, Second Report (n 4) [4.13]. 48  Reforming the Commission (n 4) Part I, 22. 49  Reg 966/2012 (n 3) Arts 98–100. 50  Charter of the Internal Audit Service of the European Commission, SEC(2000)1801/2. 51  Committee of Independent Experts, Second Report (n 4) [2.3.4]. 52  Ibid [2.3.27]. 53  Reg 966/2012 (n 3) Arts 58(1)(a), 62. 54  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1; Amended Proposal for a Council Regulation laying down the Statute for Executive Agencies to be Entrusted with Certain Tasks in the Management of Community Programmes, COM(2001) 808 final, replacing the earlier version COM(2000) 788 final.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

63

implementation is assigned to the agency.55 The conjunction of power and responsibility, a principal theme of the Financial Regulation, is carried over to this new regime, since the agency director is cast as the authorizing officer. This is apparent from the Regulation on executive agencies.

(A)  Establishment, Winding-up, Legal Status, and Staffing It is fitting to begin with the rules relating to the establishment and winding-up of executive agencies. The term executive agency covers a legal entity created in accordance with the Regulation, to manage an EU programme.56 The Commission may decide after a cost–benefit analysis to set up such an agency.57 The cost–benefit analysis must take into account factors such as the justification for outsourcing, the costs of coordination and checks, the impact on human resources, efficiency and flexibility in the implementation of outsourced tasks, possible financial savings, simplification of the procedures used, proximity of the outsourced activities to final beneficiaries, the need to maintain an adequate level of know-how in the Commission, and the visibility of the EU as promoter of the Union programme. A particular agency will not necessarily be permanent. The Commission will determine the lifetime of the agency, which can, within limits, be extended.58 When the services of the agency are not required, it will be wound up.59 The creation of a particular agency requires approval under the Comitology regulatory procedure.60 In terms of legal status, executive agencies are EU bodies, with a public service role. They are legal entities with the capacity to hold property, be a party to legal proceedings, and the like.61 The agencies are located in the same place as the Commission and its departments.62 The staffing arrangements are a blend of the old and the new. The operational head of the agency is the director, who must be an EU official within the Staff Regulations. The Commission makes the appointment, which is for four years renewable.63 The dir­ ector is responsible for the agency’s tasks, and draws up an annual work programme.64 The director is assisted by a Steering Committee of five members, who do not have to be EU officials. They are appointed by the Commission for at least two years renew­ able.65 The Committee is to meet at least four times a year. Its main tasks are to adopt the agency’s annual work programme presented by the director, to adopt the agency’s budget, and to report annually to the Commission on the agency’s ­activities.66 The agency staff are comprised of EU officials, seconded to the agency, and non-EU

55  Reg 58/2003 (n 54) recitals 5–6. 56  Ibid Art 2. EU programme covers any activity, set of activities, or other initiative which the relevant basic instrument or budgetary authorization requires the Commission to implement for the benefit of one or more categories of specific beneficiaries, by committing expenditure, Art 2(b). 57  Ibid Art 3(1). 58  Ibid Art 3(1)–(2). 59  Ibid Art 3(2). 60  Ibid Arts 3(3), 24(2). 61  Ibid Art 4. 62  Ibid Art 5. 63  Ibid Art 10. 64  Ibid Art 11. 65  Ibid Art 8. 66  Ibid Art 9.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

64

ADMINISTRATION AND LAW

­ fficials recruited on renewable contracts.67 This is designed to provide flexibility, o facilitating employment of those needed for particular tasks, without the need to incorporate them into the hierarchy of Union officials.

(B) Tasks The Commission can entrust the executive agency with any tasks required to implement an EU programme, with the exception of ‘tasks requiring discretionary powers in translating political choices into action’.68 The intent is clear. Policy choices remain for the Commission, and implementation is for the agency. This is confirmed by the ­examples of tasks that can be assigned to executive agencies.69 These are to be defined more fully in the instrument creating a particular executive agency.70 The tasks include management of projects within a programme, by adopting relevant decisions using powers delegated to the agency by the Commission; adopting the instruments of budget implementation for revenue, expenditure, and the award of contracts on the basis of powers delegated by the Commission; and gathering and analysing data for the implementation of the programme. While the intent is clear, the actual wording in Article 6 to delimit the agency’s power may be problematic. This wording is similar to that found in Article 58(7) of the Financial Regulation, which precludes delegation of executive powers to executive agencies involving a ‘large measure of discretion implying political choices’.71 There are, however, important differences between the two formulations. Article 58(7) of the Financial Regulation prevents delegation of discretionary political choices. Article 6(1) of the Regulation on executive agencies precludes delegation of tasks requiring discretionary power in translating political choices into action. On this formulation the executive agency is not only prevented from making the initial political choices, but also from exercising discretionary power when translating those choices into action. This would, if taken literally, severely limit the tasks that can be given to agencies, since such discretion may exist in relation to the specific functions listed in Article 6(2)(a)– (c). This conclusion might be avoided by reading the phrase ‘discretionary powers’ more narrowly. On this view, the mere existence of choices as to how to, for example, manage a project, or award a contract, would not be regarded as the exercise of ‘discretionary powers’, and hence would not be caught by the limit in Article 6(1).

(C)  Financial Arrangements The financial arrangements for the new agencies are important. Space precludes detailed analysis of this issue. Suffice it to say that the principles of the Financial Regulation concerning financial transparency, internal and external audit, and the like

67  Ibid Art 18.    68  Ibid Art 6(1).    69  Ibid Art 6(2)(a)–(c). 70  Ibid Art 6(3).   71  Reg 966/2012 (n 3) Art 58(7).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

65

are carried over into the scheme for executive agencies.72 This is especially so in relation to the fusion of financial power and responsibility. The director is the authorizing officer for budgetary matters within the agency,73 and therefore has the general ­responsibilities laid down in the Financial Regulation. It is the director who is to draw up the provisional statement of revenue and expenditure and, in the capacity of authorizing officer, must execute the agency’s administrative budget.74

(D)  Damages Liability, and Review of Legality Regulation 58/2003 specifies rules on agency liability in damages. The law applicable to the contract governs contractual liability.75 Article 340(2) TFEU concerning noncontractual liability has been extended to the executive agency.76 This follows the legal technique used in relation to ‘older’ agencies, such as the European Environment Agency.77 There are also provisions rendering the authorizing officer financially liable for losses caused by serious misconduct and holding the accounting officer to account on certain conditions for losses caused.78 The provisions on review of legality were more controversial. The initial draft Regulation stipulated that the legality of the acts of an executive agency could be reviewed under what was Article 230 EC on the same conditions as the acts of the Commission.79 The legality of actions of executive agencies was not included in the list of reviewable acts under Article 230(1), but the better view was that such agency decisions could be reviewed. The EU Courts read Article 230 broadly so as to facilitate review of the European Parliament,80 Court of Auditors,81 and traditional agencies,82 holding that the rule of law demanded that their actions be susceptible to legal control. Moreover, EU legislation provided for challenge to the legality of decisions made by bodies such as the Office for Harmonization in the Internal Market (OHIM), it being the defendant in the legality challenge.83 Article 263 TFEU, the successor to Article 230

72  Reg 58/2003 (n 54) Arts 12–16, 20; Reg 966/2012 (n 3) Arts 58, 60; Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council [2013] OJ L328/42; Commission Regulation (EC) 1653/2004 of 21 December 2004 on a standard financial regulation for the executive agencies pursuant to Council Regulation (EC) 58/2003 [2004] OJ L297/6, as amended by Commission Regulation 651/2008 [2008] OJ L181/15. 73  Reg 58/2003 (n 54) Arts 11(3), 16(2). 74  Ibid Arts 11(4), 14(1), 16(2). 75  Ibid Art 21(1). 76  Ibid Art 21(2). 77  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1, Art 18. 78  Reg 1653/2004 (n 72) Arts 34, 36. 79  COM(2000) 788 final, Art 21. 80  Case 249/83 Parti Ecologiste—‘Les Verts’ v European Parliament [1986] ECR 1339. 81  Cases 193–194/87 Maurissen v Commission [1989] ECR 1045. 82  Case T-411/06 Sogelma—Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771. 83  Council Regulation (EC) 40/94 of 20 December 2003 on the Community trade mark [1994] OJ L11/1, Art 63.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

66

ADMINISTRATION AND LAW

EC, now expressly provides for review of the legality of acts of bodies, offices, and agencies intended to produce legal effects. The European Parliament nonetheless argued that the executive agency was the Commission’s responsibility, that the Commission should be legally responsible under Article 230, and that it should ‘monitor’ the legality of the agency’s action.84 The Commission counter-argued that the executive agency had legal personality, and therefore the Commission should not be liable for the legality of its actions. The final version of the Regulation was a compromise between these two views: the initial legal responsibility lies with the agency, and the legality of its acts can be reviewed by the Commission, with a further review of the Commission by the CJEU under Article 263 if the Commission rejects the appeal. Article 22(1) of the Regulation provides for internal review of agency decisions by the Commission. An act of an executive agency that injures a third party can be referred to the Commission by any person directly and individually concerned, or by a Member State, for a review of its legality. Such actions must be brought within one month of the day on which the applicant learned of the act challenged. The Commission, after hearing arguments, must take a decision within two months. If it does not do so, it means that the action has been implicitly rejected. The Commission is also able, of its own volition, to review an act of the executive agency.85 The Commission can, pursuant to such internal review, suspend implementation of the measure, or prescribe interim measures. It can, in its final decision, uphold the measure, or decide that the agency must modify it in whole or in part. The executive agency is bound to act as soon as possible on Commission decisions taken under Article 22. This regime for internal monitoring by the Commission is complemented by recourse to what is now Article 263 TFEU. Thus Article 22(5) states that an action for annulment of the Commission’s explicit or implicit decision to reject an administrative appeal may be brought before the Court of Justice in accordance with Article 263. The rules on the legality of agency acts raise technical legal issues. The grounds for review are not spelled out, although the implicit assumption is that they will be those used under Article 263. It seems, moreover, that any act of the executive agency that injures a third party can be reviewed, irrespective of whether it is binding, although the requirement that the act should cause injury may impose an indirect qualification in this respect. There also seems to be an asymmetry as to recourse to the Court of Justice. Article 22(5) is framed in terms of an annulment action where the Commission rejects the administrative appeal. It seems, therefore, that the executive agency itself has no such recourse where the Commission upholds the appeal. The rules on the legality of agency acts also raise important issues of principle. Article 22 has introduced a form of internal review of the legality of executive agency action by the Commission. The procedure in such cases requires careful thought. Executive agencies are only accorded limited implementing powers. Policy formation 84  Report of the European Parliament on the Proposal for a Council Regulation laying down the Statute for Executive Agencies, A5-0216/2001, Amendment 12. 85  Reg 58/2003 (n 54) Art 22(2).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

67

remains the prerogative of the Commission. This raises significant points of principle. It is important who hears such cases within the Commission. It is not clear whether they will be heard by the Department to which the executive agency is attached, and if so who within the Department will hold the hearing. If the cases come to the same Department that established the agency, there is a danger of a conflict of interest. It is not easy to keep policy formation and implementation distinct. If an action c­ hallenging implementation implicates policy, there could be objections to the Commission sitting as a ‘judge’. There is also an issue of principle arising from the fact that the executive agency seems to have no recourse to the CJEU where the Commission upholds the appeal. This may be especially problematic if the internal hearing is by the same Department as set up the agency. The executive agency may feel that the Commission is using its internal power of review to impose a view concerning detailed matters of implementation that is legitimately within the agency’s sphere. The rules on the legality of executive agency acts also prompt thought about broader issues of ‘legal design’, and the optimal structuring of legal liability. The mere fact that a body has separate legal personality, so that it can hold property and bring actions in its own name, does not a priori preclude making another body liable for its actions. The principled argument for holding the Commission responsible for the executive agency is that the programme has been assigned to the Commission, which can choose to deliver it in-house, or through an executive agency. That choice should not affect legal liability, which should remain with the Commission. The argument to the contrary is that executive agencies were lawfully created pursuant to Article 308 EC, and their powers do not infringe the Meroni principle.86 They are EU bodies and have legal personality. Placing liability directly on the executive agencies best serves the broader objectives of the administrative reforms. It reinforces the conjunction of power and responsibility that is central to the Financial Regulation. This is the approach adopted in relation to damages liability. The rules on review for legality represent a ­compromise, with the initial and primary responsibility lying on the executive agency, which is subject to review by the Commission, with further review of the Commission’s decision by the Court of Justice.

(E)  Executive Agencies There are currently six executive agencies:87 the Executive Agency for Innovation and Networks (INEA); the Education, Audiovisual and Culture Executive Agency (EACEA); the European Research Council Executive Agency (ERCEA); the Executive Agency for Consumers, Health, Education and Food (CHAFEA); the Research Executive Agency (REA); and the Executive Agency for Small and Medium-Sized Enterprises (EASME).

86  Case 9/56 Meroni v High Authority [1958] ECR 133. 87  https://ec.europa.eu/info/departments_en.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

68

ADMINISTRATION AND LAW

They were responsible in the period between 2007–13 for implementing spending programmes of approximately €28 billion.88 The standard format is for the legislation dealing with the particular subject matter to include a provision empowering management of the programme through an executive agency, leaving it to the Commission to decide whether and when to bring such an agency on line. This section considers the rationale for choice of the executive agency option by focusing on two such agencies. The common theme is that the relevant programme entails multiple grants and/or contracts, which can most effectively be administered by an executive agency. (i)  The Executive Agency for Small and Medium-Sized Enterprises EASME89 replaced the Executive Agency for Competitiveness and Innovation (EACI). The EACI had replaced an agency, originally called the Intelligent Energy Executive Agency, which was established pursuant to the multi-annual programme adopted in 2003 entitled ‘Intelligent Energy—Europe’.90 The EU had previously enacted strategies dealing with various aspects of energy.91 The objective of the 2003 programme was to draw these strategies together, extend them, and provide the requisite financial means to enable them to be carried out. The 2003 Decision originated in proposals made by the Commission,92 which identified the key features of the proposed programme. There should, said the Commission, be increased attention given to the demand side of energy usage, since there was little margin for increasing supply. The demand side of energy use should in particular be concerned with energy saving, energy efficiency, and the use of renewable energy resources. Priority should also be accorded to the combating of global warming, and here too development of new and renewable energy sources was seen as central to achieving this objective. Community involvement with energy efficiency began in ­earnest in 1991 with the SAVE programme, followed in 1993 by the ALTENER programme, which was concerned with the promotion of renewable resources. These programmes were complemented by others such as SYNERGY, dealing with 88  European Court of Auditors, Delegating Implementing Tasks to Executive Agencies: A Successful Option?, Special Report 13/2009, [11]. 89 https://ec.europa.eu/easme/en/about-easme. 90  Decision 2003/1230/EC of the European Parliament and Council of 26 June 2003 adopting a multiannual programme for action in the field of energy: ‘Intelligent Energy—Europe’ [2003] OJ L176/29. 91  See, eg, Council Decision 1999/24/EC of 14 December 1998 adopting a multi-annual programme of technological actions promoting the clean and efficient use of solid fuels (1998 to 2002) [1999] OJ L7/28; Council Decision 1999/25/Euratom of 14 December 1998 adopting a multi-annual programme (1998–2002) of actions in the nuclear sector relating to the safe transport of radioactive materials [1999] OJ L7/31; Decision 647/2000/EC of the European Parliament and of the Council of 28 February 2000 adopting a multi-annual programme for the promotion of energy efficiency (SAVE) (1998 to 2002) [2000] OJ L79/6; Decision 646/2000/ EC of the European Parliament and of the Council of 28 February 2000 adopting a multi-annual programme for the promotion of renewable energy resources in the Community (ALTENER) [2000] OJ L79/1. 92  Proposal for a Decision of the European Parliament and of the Council adopting a multi-annual programme for action in the field of energy: ‘Intelligent Energy for Europe’ Programme (2003–2006), COM(2002) 162 final.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

69

Centralized Management

i­nternational energy cooperation, and SURE dealing with cooperation in the nuclear sector. It was felt, however, that the EU’s involvement in this area would be more efficacious if these various initiatives were brought within one overall programme ‘in order to combine Community action to form a coherent, effective whole, both procedurally and in terms of objectives’.93 It was therefore necessary ‘to broaden and strengthen some of the activities and to include them in a single framework’.94 The new programme was, therefore, designed to strengthen renewable energy resources and energy efficiency, while adding two further strands to EU energy policy.95 The programme is structured in four specific areas: rational use of energy and demand management (SAVE), new and renewable energy resources (ALTENER), energy aspects of transport (STEER), and promotion at international level in the fields of renewable energy sources and energy efficiency (COOPENER). Six types of action are planned for each area, viz. a) implementation of strategies, development of standards, studies etc.; b) creation of structures and financial and market instruments, including local and regional planning; c) promotion of systems and equipment to ease the transition from demonstration to marketing; d) development of information and education structures and utilisation of the results; e) monitoring, and f) assessment of the impact of the actions.

The Commission considered the possible ways in which the programme could be executed. It is here that we see the rationale for the creation of the first executive agency. The Commission acknowledged that the proposed programme would lead to an increase in overall workload, and analysed two options for dealing with this. An option was to create an executive agency to which certain management tasks could be delegated, thereby enabling the Commission to concentrate its efforts on strategic issues. The Commission envisaged that the agency could be assigned the following tasks.96 It could draw up recommendations for the Commission on the execution of the ‘Intelligent Energy—Europe’ programme, and collect the necessary data to ­enable the Commission to guide the overall implementation of the programme. The agency could manage some or all of the phases in the lifetime of the specific individual projects. It could also manage the budgetary side of specific programmes, including the award of contracts and subsidies. The agency could, in addition, promote the ­dissemination of the results of projects at local, regional, and national level. The Commission’s preference for the executive agency option was influenced by the large number of contracts that would have to be managed. It anticipated that implementation of the programme would lead to some 270 contracts per annum, rising to 330 with the accession of the new Member States. The creation of an executive agency was felt to be the best solution for managing the plethora of contracts required to make the programme a reality. The Commission also considered another option for managing the programme, which was to do so directly by the relevant Commission departments. It did not, however, 93  Ibid 6.

94  Ibid 7.

95  Ibid 7.

96  Ibid 13.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

70

ADMINISTRATION AND LAW

favour this strategy. It was felt that direct management from within the Commission would ‘involve major changes to the management of the programme and to its intervention mechanisms’.97 It would require an increase in Commission staff from thirtyeight to fifty-two; it would result in a substantial reduction in activities relating to promotion and utilization of the results of the projects, thereby limiting the benefits of the programme; and it would in practice lead to the imposition of a ­minimum threshold for the funding of projects, with the result that there would be a significant reduction in the number of contracts, and the consequential exclusion of important players at local and regional level from the programme’s activities.98 The 2003 Decision followed the Commission’s thinking about the substance of EU energy policy. The multi-annual programme was structured around the four specific fields identified by the Commission: energy efficiency (SAVE); use of renewable energy resources (ALTENER); energy aspects of transport (STEER); and support for initiatives concerning renewable energy in developing countries (COOPENER).99 There were also ‘key actions’, which were initiatives combining several of these specific fields.100 There were broad criteria for projects to qualify for EU funding concerning the four specific fields and key actions.101 It was for the Commission to establish a work programme to effectuate the multi-annual programme.102 It was unsurprising, given the Commission’s proposals, that implementation should be entrusted to an executive agency, which was established in 2003.103 The Preamble reiterates the general rationale for the creation of such agencies: they allow the Commission ‘to focus on its core activities and functions which cannot be outsourced, without relinquishing control over, or ultimate responsibility for, activities managed by those executive agencies’.104 This rationale was particularly relevant in this area, since management of the energy programme involved ‘implementation of technical projects which do not entail political decision-making and requires a high level of technical and financial expertise throughout the project cycle’.105 It was, moreover, possible to ­separate clearly ‘between programming, establishing priorities and evaluating the programme, which would be carried out by the Commission, and project implementation, which would be entrusted to the agency’.106 The agency’s tasks followed closely the thinking in the Commission’s proposals. It was responsible for implementing the tasks concerning Community aid under the programme, ‘except for programme evaluation, monitoring of legislation and strategic studies, or any other action which comes under the exclusive competence of the Commission’.107 The agency was responsible for the following tasks. It managed all phases in the lifetime of specific projects and the work programme laid down in

97 Ibid 13.   98  Ibid 13.   99  Dec 2003/1230 (n 90) Art 3(1). 100  Ibid Art 3(2). 101  Ibid Art 4. 102  Ibid Arts 5(1), 5(2), 7, 8. 103  Commission Decision 2004/20/EC of 23 December 2003 setting up an executive agency, the ‘Intelligent Energy Executive Agency’, to manage Community action in the field of energy in application of Council Regulation (EC) 58/2003 [2004] OJ 2004 L5/85. 104  Ibid [4]. 105  Ibid [5]. 106  Ibid [6]. 107  Ibid Art 4(1).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

71

Decision 2003/1230 following the advice of the executive committee of the programme, by adopting the relevant decisions where the Commission empowered it to do so.108 The agency was responsible for budget implementation and, where the Commission empowered it to do so, all the operations necessary to manage the Community programme, in particular the award of contracts and grants.109 The agency was also charged with gathering and passing on to the Commission all information needed to guide implementation of the Community programme.110 The Commission Decision allowed the agency to undertake tasks of the same broad type under other Community programmes, provided that they fall within the general area of energy efficiency, renewable energy, and the like.111 The agency was subject to supervision by the Commission and had to report regularly on its progress.112 The Intelligent Energy Executive Agency was transformed into the EACI in 2007,113 the rationale being that the EACI dealt with a range of issues concerning innovation other than those concerned with energy. Intelligent use of energy114 continued to be a key part of the EACI’s remit, and it retained responsibility for the award of contracts and grants to promote energy efficiency and renewable energy. The EACI was replaced by EASME in 2013,115 the idea being to build on the success of the EACI, but to bring together management of a broader number of programmes than hitherto, which had thematic links.116 The overarching aim is to help create a more competitive and resource-efficient European economy based on knowledge and innovation, and the award of multiple contracts and grants remains central to the work of EASME.117 (ii)  The Education, Audiovisual and Culture Executive Agency The need to administer multiple grants and/or contracts is apparent once again in the ­creation of the EACEA.118 The EACEA was created on 1 January 2005119 and is now governed by a Decision made in 2013, which extended the EACEA’s remit to the end of 2024.120 108  Ibid Art 4(1)(a). 109  Ibid Art 4(1)(b). 110  Ibid Art 4(1)(c). 111  Ibid Art 4(2). 112  Ibid Art 7. 113  Commission Decision of 31 May 2007 amending Decision 2004/20/EC in order to transform the ‘Intelligent Energy Executive Agency’ into the Executive Agency for Competitiveness and Innovation [2007] OJ L140/52. 114  Energy 2020: A strategy for competitive, sustainable and secure energy, COM(2010) 639 final. 115  2013/771/EU: Commission Implementing Decision of 17 December 2013 establishing the ‘Executive Agency for Small and Medium-sized Enterprises’ and repealing Decisions 2004/20/EC and 2007/372/EC [2013] OJ L341/73. 116 https://ec.europa.eu/easme/en/about-easme. 117  Commission Decision approving the draft Annual Work Programme of the Executive Agency for Small and Medium-Sized Enterprises, C(2016) 2011 final; Draft Annual Work Programme of the Executive Agency for Small and Medium-Sized Enterprises for 2016, https://ec.europa.eu/easme/sites/easme-site/files/documents/easme_wp_2016_20160408.pdf. 118 http://eacea.ec.europa.eu/index_en.php. 119 Commission Decision 2005/56/EC of 14 January 2005 setting up the Education, Audiovisual and Culture Executive Agency for the management of Community action in the fields of education, audiovisual and culture in application of Council Regulation (EC) 58/2003 [2005] OJ L24/35. 120  2013/776/EU: Commission Implementing Decision of 18 December 2013 establishing the ‘Education, Audiovisual and Culture Executive Agency’ and repealing Decision 2009/336/EC [2013] OJ L343/46.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

72

ADMINISTRATION AND LAW

The Agency has responsibility for the management of parts of a wide variety of EU programmes concerning education, audiovisual, and culture. These programmes now include121 Erasmus, Creative Europe, Europe for Citizens, Eurydice, EU Aid Volunteers, and Intra-Africa. The EACEA is also responsible the overseeing the legacy of previous programmes. The Agency is responsible for managing projects entrusted to it in these areas, more specifically in relation to the award of contracts and grants. We can understand why an executive agency was created by considering the background to three areas where the EACEA has authority: active citizenship, information and communication technologies in education systems, and cooperation in the context of higher education. The objectives of the initial active citizenship programme122 were to promote and disseminate the values and objectives of the EU; to bring citizens closer to the EU and to encourage them to engage more frequently with its institutions; to involve citizens closely in discussion about the EU; to intensify links between citizens by techniques such as the twinning of towns; and to stimulate initiatives by bodies engaged in the promotion of active and participatory citizenship.123 The activities that can be supported are broad and diverse.124 They include activities of bodies within civil society, NGOs and the like, as well as initiatives undertaken by municipalities and other official bodies. Financial support is in the form of grants. There are multiple grants to administer under this programme and this was the primary rationale for using an executive agency. The governing instrument for citizenship initiatives now dates from 2014,125 and established the ‘Europe for Citizens’ programme to run from 2014–20. It provides funding in the form of grants and contracts to contribute to citizens’ awareness of the EU; to foster EU citizenship and promote democratic participation of citizens; and to raise awareness of remembrance and advance European values.126 The same features are evident in relation to administration of the programme concerning integration of information and communication technologies in education and training systems. The initial programme was established in 2003.127 The objectives were to use e-learning as a means of promoting digital literacy; to exploit the potential of e-learning for enhancing the European dimension in education; and to use e-learning to improve the quality of the learning process.128 These objectives were to be pursued through strategies designed to promote digital literacy, through virtual campuses,

121  Ibid Art 3. 122  Council Decision 2004/100/EC of 26 January 2004 establishing a Community action programme to promote active European citizenship (Civic Participation) [2004] OJ L30/6. 123  Ibid Art 1(1). 124  Ibid Annex Art 1. 125  Council Regulation (EU) No 390/2014 of 14 April 2014 establishing the ‘Europe for Citizens’ programme for the period 2014–2020 [2014] OJ L115/3. 126 https://eacea.ec.europa.eu/europe-for-citizens_en. 127  Decision 2003/2318/EC of the European Parliament and Council of 5 December 2003 adopting a multiannual Programme (2004 to 2006) for the effective integration of information and communication technologies (ICT) in education and training systems in Europe (eLearning Programme) [2003] OJ L345/9. 128  Ibid Art 1.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

73

the  twinning of schools, and the like.129 The Commission was charged with implementing the programme. Multiple projects were financed, primarily through subsidies,130 hence the choice of an executive agency to manage the programme.131 The Commission favoured this method of policy implementation, stating that ‘whenever possible and justifiable by a cost/effectiveness analysis, programme administration and other programme execution related tasks such as, for example, monitoring and documentation project results, will be entrusted to a future Executive Agency, under study’.132 The EACEA was duly given authority to manage certain aspects of this programme. More recently the focus has shifted to the Eurydice programme, which is designed to facilitate understanding of how education systems work in different countries in the EU.133 The programme adopted to enhance quality in higher education through ­cooperation with third countries (Erasmus Mundus) exhibited the same structural characteristics as those considered above.134 The objectives of the programme included improving accessibility to higher education in the EU and encouraging qualified graduates from third countries to obtain qualifications in the EU. These objectives could be pursued through a variety of means, such as scholarship schemes, Masters’ courses, partnerships with third-country higher education institutions, and the like. Many grants or scholarships were awarded in furtherance of the programme’s objectives. Provision was, therefore, made for managing the programme through an executive agency, together with national agencies if this should prove to be appropriate. The current programme is ‘Erasmus+’, which is a funding scheme to support activities in the fields of education, training, youth, and sport. It is composed primarily of three key action areas, concerning mobility, cooperation, and policy reform, with two additional components relating to the Jean Monnet programme and funding for the European dimension in sport.135

(F) Assessment Executive agencies were created as a central part of the reforms following the resignation of the Santer Commission. The Court of Auditors in 2009 produced a special report assessing their performance. The report was mixed.

129  Ibid Art 2. 130  Ibid Annex Arts 1–2. 131  Ibid Annex Art 2. 132  COM(2002) 751 final, 35. 133 https://eacea.ec.europa.eu/national-policies/eurydice/home_en. 134  Decision 2003/2317/EC of the European Parliament and Council of 5 December 2003 establishing a programme for the enhancement of quality in higher education and the promotion of inter-cultural understanding through co-operation with third countries (Erasmus Mundus) (2004 to 2008) [2003] OJ L345/1; Decision No 2008/1298/EC of the European Parliament and of the Council of 16 December 2008 establishing the Erasmus Mundus 2009–2013 action programme for the enhancement of quality in higher education and the promotion of intercultural understanding through cooperation with third countries [2008] OJ L340/83. 135 https://eacea.ec.europa.eu/erasmus-plus_en.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

74

ADMINISTRATION AND LAW

It found that the initiative for setting up the executive agencies was mainly driven by constraints on employment within the Commission, rather than being based on the intrinsic features of the programmes themselves, and that there were some deficiencies in the cost–benefit analyses required by the legislation to support the decision to create the agencies. It was also concerned that Commission supervision of the agencies was limited and that more could be done to set agency targets. The Court of Auditors, however, acknowledged that service delivery by executive agencies with specialized skills in the relevant areas had been improved in terms of reduced time for contracting, more rapid approval procedures for technical and financial reports, and lower payment delays, as compared with when such matters had been undertaken in-house by the parent DG. There were also qualitative improvements in terms of simplification of processes, increased external communication, and ­dissemination of results.136

6  Management by Networks of National Agencies: Public Service Mission It is clear from the Commission’s White Paper that externalization could be pursued through devolution of tasks to certain national public bodies.137 This was confirmed by the Financial Regulation. Indirect centralized management of EU activities can be undertaken by the bodies listed earlier, which includes public law bodies or bodies governed by private law with a public service mission, and bodies governed by the private law of a Member State, entrusted with the implementation of a public and private partnership, subject in both instances to adequate financial guarantees.138 Such bodies must be chosen in an objective and transparent manner.139 Where policy is implemented in this way the Commission will conclude agreements with such bodies specifying the tasks assigned, the performance conditions, and reporting rules. The constraints and conditions described earlier140 apply to these bodies, just as much as when externalization is pursued through executive agencies. The Commission’s thinking about the use of such bodies emerged from a Communication devoted to the topic.141 The idea is to devolve executive ­responsibilities to national bodies, which are either public or have a public service mission guaranteed by the state. These bodies were collectively referred to as ‘national agencies’, and this status could be conferred on existing or new entities. The agencies then acted as 136  Special Report 13/2009 (n 88) [40]–[46]. 137  Reforming the Commission (n 152) Vol I, 10. 138  Reg 966/2012 (n 3) Art 58(1)(c)(v)–(vii). 139  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union [2012] OJ L362/1, Art 44. 140  See above, 58–60. 141  Management of Community Programmes by Networks of National Agencies, COM(2001) 648 final.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

75

Centralized Management

partners in the implementation of EU policies, but the Commission retained overall responsibility for service delivery.142 The intention was to devolve detailed implementation to national agencies, so that they had no margin of discretion on EU policy. The implementing tasks entrusted to such agencies would ‘in no way alter any choices taken by the Commission involving political judgment’.143 The scale of delegation to national agencies was, therefore, conceived to be less than to the new breed of executive agencies. This was because the Commission retains a degree of control over executive agencies ‘going well beyond what it can exercise over’ national agencies.144 The Commission made clear that use of national agencies was to be distinguished from shared administration, where the states themselves had responsibility for budget operations.145 The Commission perceived a number of advantages in using national agencies.146 It facilitated ‘proximity’ to the beneficiaries of the policy, as in the case of education and training. It fostered ‘complementarity’, since there would often be national agencies with experience of a particular policy. National agencies could offer greater ‘flexibility’ than executive agencies, since it was easier to adapt to local circumstance. The Commission established criteria for when networks of national agencies will be appropriate.147 The Commission was also mindful of the need for precautions when using this strategy.148 These would be necessary to avoid cumbersome procedures, ensure the visibility of the European dimension to the programmes, secure the overall coherence of the programme, and maintain a clear distinction between intermediaries and beneficiaries of the policies. The Commission was against a general framework regulation for management by networks of national agencies,149 because it would be difficult to draft such a measure that could cover all possible scenarios, while providing sufficiently detailed common rules. The preferred approach was to provide for management by national agencies within the specific regulation governing a particular programme. There would then be a Commission decision laying down the responsibilities of the Commission and the Member States in relation to the national agencies. This would be supplemented by operating agreements, between the Commission and national agencies, which specified the duties and powers of the latter. There would also be an agreement on decentralized measures, which would deal with the management of funds transferred to national agencies. Controls operated ex ante and ex post. The former included the Commission decision specifying the responsibilities of the Commission and Member States in respect of national agencies, the terms of the operating agreement, and of the agreement on decentralized measures. There would be internal audit to consider management and control systems within the national agencies. The latter controls encompassed external

142  Ibid [3.1]. 146  Ibid [4.1].

143  Ibid [5.2]. 147  Ibid [5.1].

144  Ibid [5.2], [7]. 148  Ibid [4.2].

145  Ibid [3.2]. 149  Ibid [5.3].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

76

ADMINISTRATION AND LAW

audit to ensure that expenditure was consistent with the legal provisions, and spot checks through field visits.

7  Management through Contracting-Out: Award and Risk Contracts are used to secure the delivery of many programmes directly administered by the Commission and EU agencies. The motivations for contracting-out were eclectic.150 In some areas, such as nuclear safety, expertise was the key factor. In others, such as the Med programmes, there was a desire to involve civil society in service delivery. In yet others such as humanitarian assistance the rationale was that specialist organizations would be better placed to deliver the aid than the Commission. Shortage of staff within the Commission was another more general reason for contracting-out. There were, as we saw in the previous chapter, problems concerning contractingout. The line between policy formation and policy implementation became blurred. It was difficult to ensure that the private contractor did not breach its contract with or defraud the Commission. The Committee of Independent Experts accepted that the Commission would have to contract out tasks,151 but was equally firm in its belief that the existing arrangements were imperfect. This was acknowledged also in the Commission’s White Paper.152 Problems surrounding such contracts played a large part in the fall of the Santer Commission, and the Court of Auditors revealed difficulties in other areas.153 It is, therefore, unsurprising that subsequent reforms were directed towards these contractual relationships. The general principles considered earlier concerning the type of activities that can be entrusted to another body, and the type of bodies to whom such tasks can be assigned, are applicable here and impose limits on the grant of contracts. The Financial Regulation also contains specific provisions on the award of contracts. The basic strategy is to apply the directives on public procurement to contracts awarded by EU institutions.154 There is an obligation to put such contracts out to tender, using the open, restricted, or negotiated procedure, or for there to be a contest or competitive dialogue. There are safeguards against fraud by contractors. Thus firms are excluded from the tendering process if they are bankrupt, guilty of grave professional

150  Ch 2. 151  Committee of Independent Experts, Second Report (n 4) Vol I, [2.3.1], [2.0.1], [2.3.8]. 152  Reforming the Commission, COM(2000) 200. 153  Court of Auditors, Special Report 16/2000, On Tendering Procedures for Service Contracts under the Phare and Tacis Programmes [2000] OJ C350/1; Court of Auditors, Special Report 12/2000, On the Management by the Commission of European Union Support for the Development of Human Rights and Democracy in Third Countries [2000] OJ C230/1. 154  Reg 966/2012 (n 3) Arts 101–114.

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

77

misconduct, and the like.155 A contract cannot be awarded to a firm that has a conflict of interest, or that has been guilty of misrepresentation. The contracting authority is empowered to exclude such firms from contracts financed by the budget for up to ten years.156 The centrality of the authorizing officer to the Financial Regulation is evident here, since this officer decides to whom the contract is to be awarded.157 There is, ­moreover, greater transparency than hitherto concerning contract tenders and awards by the Commission and EU agencies.158 The specification of the terms of the contract is equally important if the mistakes of the past are to be avoided. Fraud and financial irregularities perpetrated by contractors will be prevented in part by the provisions concerning the exclusion of certain firms from the tendering process. This can, however, only be part of the overall strategy. It is also important to ensure the effective discharge of EU policies by those to whom tasks have been contracted out. The specification of the contract terms is all-important. Contracts are bargains, which allocate risks. The Committee of Independent Experts was critical of Commission practice in this respect. It found instances where the contractor’s task was poorly defined, where there was insufficient monitoring of contractual performance, and where the EU prefinanced the project by paying a large amount of the contract price ‘up front’.159 There is an integral connection between the specification of the contract terms and the contractual objective. If the objective is set at too high a level of generality, it will be difficult to devise concrete contractual terms that can operate as a meaningful constraint on the other contracting party.

8  Conclusions and Assessment The shockwaves from the fall of the Santer Commission generated a radical rethinking by the Commission of the delivery of programmes for which it has direct management responsibility. The Commission might well have retreated into a defensive shell after the Report of the Committee of Independent Experts. It did not do so. It embraced the majority of the Committee’s suggestions. Any assessment of the emerging order must take account of the legislative and non-legislative initiatives. A number of more general observations on the new administrative order are warranted. First, the Commission’s overall strategy is based on the conjunction of power and responsibility, which are integrally linked, legally and financially, with the authorizing officer being the key figure in this regard. This strategy is to be welcomed. Public lawyers will be aware of the importance of financial responsibility in the overall design of administrative systems. It is a crucial component of administrative accountability. This

155  Ibid Arts 106–108. 156  Ibid Art 109. 157  Ibid Art 113. 158 http://ec.europa.eu/budget/contracts_grants/info_contracts/doing_business/do-business_en.cfm. 159  Committee of Independent Experts, Second Report (n 4) [2.2.4]–[2.2.14].

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

78

ADMINISTRATION AND LAW

is recognized in the Financial Regulation, which attempts to address past problems by recasting the regime of financial responsibility and placing this new regime at the heart of the system of centralized management. The Financial Regulation makes an ­important contribution towards the design of administrative systems so as to maximize accountability by the very centrality accorded to the ideas of power and responsibility, placing these at the forefront of the new system for dealing with centralized EU administration. Secondly, the divide between policy and implementation is equally central to the new system:160 policy remains the preserve of the Commission, with implementation devolved to executive agencies, networks of national agencies, or managed through contracting-out subject to Commission oversight. The divide between policy and implementation is difficult to preserve. This does not mean that the overall strategy is misguided. It is inevitable that the Commission has to externalize the administration of some programmes. The effective delivery of policy is an endemic problem within national polities, so too when programmes are administered at Union level. The Commission cannot administer all policies in-house. It has neither the expertise, nor the personnel to do so. Moreover, if implementation were always undertaken in-house, it would divert the Commission from policy formation. The Commission has, therefore, to ‘externalize’ the administration of some programmes for which it has direct management responsibility. This cannot be avoided. Given that this is so, it is right that the central policy choices should be made by the Commission, which is given the primary responsibility for implementing a programme. It is right that this basic precept should be enshrined in the new Regulations, even if in some instances an executive agency might ‘cross the line’ and make some limited discretionary policy choices. The architects of the Financial Regulation were therefore correct in enshrining this p ­ rinciple in formal legal terms. Thirdly, it is equally clear that no single administrative method can serve for the plethora of differing programmes that the EU manages. In some cases, the best technique will be to maintain control within the Commission, but to contract out detailed implementation. In other cases, executive agencies will be the most appropriate institutional form, and they might use contracts to facilitate fulfilment of their tasks or might liaise with national agencies. In yet other instances, existing national agencies will be the most fitting medium and these agencies might use contracts to fulfil their remit. This is recognized in the new regime, and is embodied in the legal and non-legal rules that govern this area. The factors that affect the choice of technique are, moreover, becoming increasingly clear in the light of more recent programmes in particular areas. It is evident that executive agencies are especially suited to the implementation of programmes involving multiple contracts, grants, or subsidies. This is exemplified 160  There are clear analogies to reforms of the administrative landscape within national polities, such as the UK, with the shift to core departments, and Next Steps Agencies: Improving Management in Government: The Next Steps (1988); D Goldsworthy, Setting Up Next Steps: A Short Account of the Origins, Launch, and Implementation of the Next Steps Project in the British Civil Service (HMSO, 1991).

OUP CORRECTED PROOF – FINAL, 08/10/18, SPi

Centralized Management

79

by the case of energy where it is clear, extrapolating from existing experience, that upwards of 300 contracts per year may be awarded to effectuate the overall aims of the programme. It is vital that these contracts are properly managed in order that the problems revealed in the First Report of the Committee of Independent Experts are not repeated. Executive agencies, properly staffed with a mix of personnel seconded from the Commission, combined with staff recruited from outside, have the potential to provide an effective method of securing delivery of these programmes.161 The very fact that these agencies are subject to the general principles of the Financial Regulation, more especially those concerning the financial responsibility of the authorizing officer, serves moreover to enhance accountability and to further the conjunction of power and responsibility that runs throughout the new regime. Finally, it should be acknowledged that there are several layers to the legal realization of these administrative reforms. This is not excessive legalism. The differing legal norms legitimate the new structures, through the provision of overarching principles applicable to all forms of administration, combined with detailed rules relevant to particular institutional forms. The Financial Regulation is at the apex.162 It is of constitutional significance. It contains the budgetary principles, it orders the different forms of EU administration, it establishes principles governing the allocation and exercise of administrative power, and it allocates financial power and responsibility. The next level down is the Regulation on Executive Agencies, which draws on the principles in the Financial Regulation. No such general regulation is contemplated for networks of national agencies. The use of such networks will, nonetheless, be legitimated through EU legislation in the specific areas where they are used. There is a further legal level, concerned with the detailed operation of an executive agency, or network of national agencies. Specific Union legislation, combined with operating agreements, defines the tasks of such bodies in particular areas.

161  Special Report No 13 (n 88) [40]–[46]. 162  A revised version of the Financial Regulation is close to finalization. The rules concerning the issues addressed in this chapter are largely unaltered: REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the financial rules applicable to the general budget of the Union, 2, Brussels, 6 July 2018, PE-Cons 13/18.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

4 Shared Management 1 Introduction Shared management has been central to the implementation of EU policy. This includes areas where the EU expends funds, such as the Common Agricultural Policy (CAP) and the Structural Funds, and areas where the EU intervenes through regulatory ­policy  such as utilities, financial services, and consumer protection.1 The Financial Regulation contains provisions dealing with shared management, as well as centralized management.2 There are, nonetheless, many issues posed by shared management that are not touched by the 2002 reforms. It would clearly be impossible in the course of this ­chapter to deal with all the main areas where shared administration applies. That would require a book in itself.3 The issues will therefore be explored in the context of the CAP and the Structural Funds. There is considerable specialist literature dealing with these areas, but they have received relatively little attention from a more general public law perspective. The legal regimes governing agriculture and regional policy are daunting in their complexity. They cannot, however, be ignored by anyone seriously interested in law and administration within the EU, because expenditure in these areas still consumes a large part of the EU budget, and because the regime of shared management poses unique problems and challenges. The public law approach taken to the study of these areas is a broad one, and it is important to make this clear at the outset. It is not confined to analysis of procedure, or the application of the principles of judicial review. These issues are significant, and the way in which such principles have been modified so as to accommodate shared management/composite procedures, together with the difficulties thereby involved, will be considered in later chapters on judicial review.4 To believe that these issues 1 P Craig, ‘Shared Administration, Disbursement of Community Funds and the Regulatory State’ in H Hofmann and A Turk (eds), Legal Challenges in EU Administrative Law: Towards an Integrated Administration (Edward Elgar, 2009) Ch 2. 2  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1, Arts 58–63. 3  See, eg, O Jansen and B Schöndorf-Haubold (eds), The European Composite Administration (Intersentia, 2011); C Harlow and R Rawlings, Process and Procedure in EU Administration (Hart, 2014). 4  See in particular, Chs 11, 12, 15, 16.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

81

constitute the entirety of public law concerns raised by the existence of shared or mixed administration is, nonetheless, mistaken, since it circumscribes the nature of the inquiry too narrowly. The preceding issues are important, but tell only part of the story concerning the interrelationship between administration and law as concerns the CAP and the Structural Funds. We must also be mindful of regulatory efficacy, and the challenges posed by the fact that administration of such schemes is undertaken both by EU and national authorities. We should, therefore, be cognizant of issues concerning legislative design, the way in which legislation embodies incentives for compliance, and the principal factors that shape an effective regime of shared administration. These matters are explored in relation to the CAP and the Structural Funds, but are equally pertinent to inquiry in any other area where shared administration operates. It is helpful at this juncture to note the definition provided by the Committee of Independent Experts. Shared management connoted,5 [M]anagement of those Community programmes where the Commission and the Member States have distinct administrative tasks which are inter-dependent and set down in legislation and where both the Commission and the national administrations need to discharge their respective tasks for the Community policy to be implemented successfully.

2  The Common Agricultural Policy (A) Treaty Foundations The Treaty foundations for the CAP have not altered in substance since the inception of the Community. The objectives of the CAP are laid down in Article 39(1) TFEU. They are: (a) to increase agricultural productivity by promoting technical progress and by ensuring

the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices.

These objectives are set out at a high level of generality, and can conflict. Decisionmaking has, therefore, always necessitated a balancing operation of the factors in

5  Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999) Vol I, [3.2.2] (hereafter Second CIE).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

82

ADMINISTRATION AND LAW

Article 39(1). The Treaty provides further guidance as to attainment of these ­objectives. Article 40(2) stipulates that the common organization of agricultural markets may be directed towards price regulation, production, and marketing aids, and storage arrangements to stabilize imports and exports; and it provides that there shall be no discrimination between producers or consumers in the EU.

(B) From Price Support towards Income Support The detailed story of the CAP has been told elsewhere.6 It is, however, necessary to understand the outline of this story, in order to comprehend the regime of shared management.7 The principal focus of CAP policy has been on price support. A rationale for the EU has always been that goods should be able to move unhindered by trade barriers. This regime has not applied to agricultural produce. The Council established common prices for most agricultural goods. There was a target price, this being the price that it was hoped farmers would be able to obtain on the open market. There was an intervention price, which was the price at which the Commission would buy up produce from the market. There was also a threshold price, this being the price to which imports were raised when world prices were less than those prevailing in the EU. The price support system was very costly for the EU, consuming the largest share of the budget. EU prices have generally been higher than those on the open markets. This encouraged production, generating surplus goods, which then had to be stored, a further significant cost. If they were exported yet further cost was incurred, since the CAP regime provided ‘restitution’ to exporters to ensure that they suffered no loss on such transactions. The EU adopted a variety of measures to ameliorate the consequences of the CAP price support regime. Quotas were introduced to reduce the impact of the system. The degree of price support for particular agricultural goods was reduced. Farmers were encouraged to set aside farmland and reduce production. There was a realization that the existing regime could not continue in the light of enlargement, since many applicant countries were heavily dependent on agriculture, and hence the financial burden on the EU would increase. Incentives for CAP reform also came from external sources. The EU was under pressure from the US and other countries to reform its protectionist agricultural policies. These pressures became particularly forceful during the Uruguay round of the negotiations on the General Agreement on Tariffs and Trade (GATT) in 6  J Usher, Legal Aspects of Agriculture in the European Community (Oxford University Press, 1988); F Snyder, New Directions in European Community Law (Weidenfeld, 1990) Chs 4–5; W Grant, The Common Agricultural Policy (Macmillan, 1997); R Fennell, The Common Agricultural Policy: Continuity and Change (Clarendon Press, 1997); J McMahon, Law of the Common Agricultural Policy (Longman, 2000); E Rieger, ‘The Common Agricultural Policy, Politics against Markets’ in H Wallace and W Wallace (eds), Policy-Making in the European Union (Oxford University Press, 4th edn, 2000) Ch 7; M Cardwell, The European Model of Agriculture (Oxford University Press, 2004). 7 https://ec.europa.eu/info/departments/agriculture-and-rural-development_en#responsibilities.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

83

the early 1990s. The Agriculture Commissioner, MacSharry, put together a package of reforms, which were of more long-term significance, since it was acknowledged that support for farmers could be disaggregated from production. This was the beginning of the shift from price support to income support. Fischler, the Agriculture Commissioner in the Santer Commission, continued this trend. Support for farmers began to be seen separately from support for production. This theme was developed in the Commission’s Agenda 2000 document.8 The Commission proposed large reductions in support prices, coupled with direct compensation to farmers. The proposals were opposed by France and it was not easy to secure agreement on the changes. However, the pressures of enlargement, and the EU’s negotiating position with the World Trade Organization (WTO), led to an agreement in June 2003, the foundation of which was the disaggregation of financial support from production. The key element of the reformed CAP was a single farm payment for EU farmers, which, subject to limited exceptions, was decoupled from production. This payment was linked to respect for standards concerning the environment, food safety, animal and plant health, and animal welfare. The reformed CAP also embodied a strengthened rural development policy.9 The governing instrument now dates from 2013.10

(C) The Framework of Shared Management The administration of the CAP is ‘shared’, in the sense that the various forms of price support payments were administered jointly by the Commission and the Member States.11 This was for many years done through the European Agricultural Guidance and Guarantee Fund (EAGGF). The Guidance section dealt with expenditure relating to agricultural structures; the Guarantee section covered payments relating directly to the regulation of agricultural markets, refunds on exports, and intervention payments. It is the latter that is of principal concern here. The main enabling provision for many years was Regulation 729/70.12 The Member States designated the bodies within their countries that would make the payments ­covered by the Guarantee section,13 and the Commission made the funds available to  the Member States for disbursement by those bodies.14 The Member States were

8  Agenda 2000: For a Stronger and Wider Union (1997). 9  Council Regulation (EC) 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers [2003] OJ L270/1. 10  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the ­common  agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 [2013] OJ L347/608. 11  Second CIE (n 5) Vol I, [3.6.3]. 12  Council Regulation 729/70/EEC on the financing of the common agricultural policy [1970] OJ L94/13. 13  Ibid Art 4(1). 14  Ibid Art 4(2).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

84

ADMINISTRATION AND LAW

obliged to take the necessary measures to satisfy themselves that the transactions financed by the Fund were carried out correctly; to prevent and deal with irregularities; and to recover sums lost as a result of irregularities or negligence.15 However, in the absence of total recovery, the financial consequences of irregularities or negligence were borne by the Community, with the exception of the consequences of irregularities or negligence attributable to administrative bodies of the Member States.16 The Member States and Commission could carry out inspections to ensure the probity of the transactions financed by the Fund.17 In addition to the provisions of Regulation 729/70 protection of the budget was to be secured through clearance of accounts. This was important since the Commission paid national bodies monthly, and sought to recover thereafter sums that should not have been paid. Prior to 1995 the Commission was required to clear the EAGGF Guarantee accounts by 31 December of the year following the financial year concerned, that is by 31 December of year n + 1. The Member States were meant to submit the accounts of their paying agencies by 31 March of the year n + 1, which were then examined by the Commission. The accounts were, however, rarely closed  on time, and it became common for them to be finalized a year late. The Commission could order a correction in relation to a particular irregularity. It could also order flat-rate corrections when it discovered systemic weakness in the procedures of a paying agency, from which it could be concluded that irregular payments had been made. Three major changes to Regulation 729/70 were made in 1995. It was stipulated that paying agencies had to be accredited by the Member States, and only such agencies could make payments.18 Where more than one agency was accredited the Member State had to specify a coordinating body responsible for promoting the harmonized application of the rules.19 The accounts of the paying agencies had to be certified by a body that was operationally independent of the paying agency.20 Finally, the timetables and procedures for accounting and compliance were separated within the system for clearance of accounts.21 These changes were incorporated in Regulation 1258/99,22 and were retained in later Regulations23 that superseded it.

15  Ibid Art 8(1). 16  Ibid Art 8(2). 17  Ibid Art 9. 18  Commission Regulation (EC) 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) 729/70 regarding the clearance of accounts of the EAGGF Guarantee Section [1995] OJ L158/6, Art 1. 19  Council Regulation (EC) 1287/95 amending Regulation (EEC) 729/70 on the financing of the common agricultural policy [1995] OJ L125/1, Art 1. 20  Reg 1663/95 (n 18) Art 3. 21  Reg 1287/95 (n 19) Art 1. 22  Council Regulation (EC) 1258/1999 of 17 May 1999 on the financing of the common agricultural policy [1999] OJ L160/103. 23  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on  the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 [2013] OJ L347/549.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

85

3  The CAP, Shared Management, and Law It is interesting to reflect on the role of law within the pattern of shared management that characterizes the CAP.

(A) The Delineation of Legislative Objectives: The Tension between the Collective Interest and the Interests of Individual Member States It is fitting to begin by considering legislative objectives. There has been tension between the collective interests of the Member States in the Council, and the interests of individual Member States as recipients of CAP funds. The framers of legislation will approach their task with certain aims. The Member States in their collective capacity have an interest in the allocation of the EU budget, and in the proper use of funds. There is, however, a tension between this objective and the accountability of individual Member States for the correct disbursement of CAP funds. Individual states sought to minimize their liability for incorrect CAP allocations. This was reflected in the content of the legislation and in the way it is applied.

(B) Legislative Design and Content: Incentives for Compliance This leads naturally to the design and content of legislation. The legislation contained procedural and substantive conditions for eligibility to funds. It specified rules as to liability if things went wrong. These matters were crucial to the way shared management operated. Law creates incentives or disincentives to certain types of action. The framing of the legal provisions is vital to the success of the scheme. This can be seen from three examples. The first concerns the complex system of export refunds. This was intended to bridge the gap between Community prices and those on the world market. The provisions differentiated payments according to product type, and export destination. It was highly susceptible to fraud and difficult to police. It required careful verification that the goods were of a kind for which the refund was claimed, and that they were destined for a particular country, and not another where the prices were higher, and hence only a lower refund would be payable.24 A second example relates to the 1995 legislative reforms that introduced a­ ccreditation and certification of accounts. The Commission argued that it should be responsible for the accreditation of paying agencies, and for approval of the national certifying bodies, but these suggestions were rejected by the Council. The Member States were empowered to accredit agencies,25 and specify the certifying bodies.26 This was problematic, with bodies being accredited that did not fulfil the relevant criteria. 24  Second CIE (n 5) [3.13.2]–[3.13.5]. 26  Reg 1663/95 (n 18) Art 3.

25  Reg 1258/1999 (n 22) Art 4.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

86

ADMINISTRATION AND LAW

The third example of the importance of legislative design is provided by Article 8 of Regulation 729/70.27 Member States had an obligation to prevent irregularities, and to recover sums lost as a result of irregularities or negligence. However, in the absence of total recovery, the financial consequences of irregularities or negligence were borne by the Community, with the exception of losses attributable to irregularities or negligence by administrative bodies of the Member States. This created, as the Committee of Independent Experts noted, a particular pattern of incentives.28 It is difficult to believe that the administrative authorities . . . in the Member States are always inclined to highlight for the Commission instances of irregularity or negligence on their part which would result in them bearing the resulting financial consequences. It is also difficult to believe that they are never negligent. In other words, the arrangements which this basic Regulation established and which still pertain do not provide the immediate disbursers of 48% (at one time as high as 70%) of the Community’s budget, the EAGGF paying agencies in the Member States, with any immediate incentive for rigour and tight control of what is in effect someone else’s, that is the Community’s, money.

(C) The Undermining of Formal Law: Pressure from the Member States and Acquiescence by the Commission Formal law, howsoever framed, can only do so much. The history of shared management in this area provides ample testimony to the way in which formal legal norms were undermined in the operation of the CAP. Member States bypassed formal law when it suited their interests. This can be exemplified by the accreditation of paying agencies. Article 4 of Regulation 729/7029 was clear: Member States were obliged to submit to the Commission details of the paying agencies, and the accounting conditions for payment. However, prior to 1996 there were ‘hundreds of un-notified small de facto agencies making EAGGF Guarantee payments in the Member States without any structured procedures for checking on their activities or accounts’.30 This illegality was practised by the Member States and tolerated by the Commission. In this context ‘shared administration amounted to not much more than shared acceptance that the Regulation could be flouted’.31 This point was further exemplified by the system for clearance of accounts. The timescale for this procedure was rarely adhered to, in part because the Member States were habitually late in submitting the accounts of paying agencies.

(D) The Law Attempts to Catch Up: Formal Legal Change and its Effectiveness The interplay between formal legal norms and practical reality is readily apparent in the response to the preceding problems. The law attempted to ‘catch up’ and address 27  See n 12. The provision remained unchanged in Reg 1258/1999. 29  See n 12. 30  Second CIE (n 5) [3.9.6]. 31  Ibid [3.9.6].

28  Second CIE (n 5) [3.7.5].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

87

the problems caused by shared management. There were many changes in the CAP regulations. The major changes were motivated by the need to address shortcomings of the previous legal structure. Thus the 1995 Regulations32 were designed to deal with the weaknesses of the previous legal regime. The accreditation requirements, the stipulation that there must be a coordinating body where there was more than one paying agency, the certification of accounts, and the divide between accounting and compliance were all directed towards this end. We must also consider the effectiveness of law reform. The revised legal norms may be a necessary condition for improvement in the CAP regime. It is not, however, sufficient. The Court of Auditors looked at these issues twice. Its conclusions were that the revised regime was certainly better than before, but that the new system still had deficiencies. Both reports revealed weaknesses in the accreditation system. The 1995 reforms gave power of accreditation to the Member States. The Court of Auditors found that there were major shortcomings in many paying agencies, which ought to have led the Member States to withdraw accreditation.33 It also found that the certifying bodies were not always operationally independent of the paying agencies.34 Its later Report found that there had been improvements, but that there were still causes for concern. There were still too many paying agencies, some of which failed to meet the criteria for accreditation, but the Member States had not generally withdrawn their accreditation.35 The independence of certifying bodies had been resolved, but there were shortcomings in the conduct of audits.36 The Committee of Independent Experts expressed itself more forcefully. It concluded that the ‘leeway which the Commission has allowed the Member States on accreditation and certification amounts to a lax implementation of the Regulation’.37 The Committee was of the view that the 1995 reforms had improved the recovery of money, but that there were insufficient resources devoted to the task and it concluded that the error rate was still too high.38

(E) The Conciliation Procedure: Bargaining in the Shadow of the Law The legal regime for the CAP was also markedly affected by the Conciliation Procedure. There were inevitably differences of opinion between the Member States, and Commission concerning the clearance procedure. The Commission could exclude expenditure by paying agencies where it was not in compliance with EU rules.39 Before

32  See nn 18, 19. 33  Court of Auditors, Special Report 21/98, Concerning the Accreditation and Certification Procedures as Applied to the 1996 Clearance of Accounts for EAGGF-Guarantee Expenditure [1998] OJ C389/1, [2.11]. 34  Ibid [3.2]. 35 Court of Auditors, Special Report 22/2000, On Evaluation of the Reformed Clearance of Accounts Procedure [2000] OJ C69/1, 13–23. 36  Ibid 31–47. 37  Second CIE (n 5) [3.9.10]. 38  Ibid Vol I, [3.14]. 39  Reg 1258/1999 (n 22) Art 7(4).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

88

ADMINISTRATION AND LAW

such a decision was finalized, the Member State could invoke the Conciliation Procedure, which was introduced in 1994.40 The original idea, as advanced by the Belle Group, was for a mandatory mechanism that would obviate settlement out of court, and hence reduce the number of cases brought by Member States under what is now Article 263 TFEU.41 What emerged was rather different. The Conciliation Body was instructed to try to reconcile the divergent positions of the Commission and the Member States. This was not, however, binding on the Commission, nor did it preclude a Member State from using Article 263. Conciliation is a sensible idea, but the effect of the Conciliation Body was mixed. The number of cases in which it secured agreement was relatively low,42 and there was not a marked drop in cases submitted to the ECJ.43 The Committee of Independent Experts described conciliation as a ‘win-win’ procedure for the Member States, ­enabling them to delay recovery of undue payments, while reserving the right to ­challenge the Commission’s final decision before the Court.44

(F) The Contribution of the ECJ: Teleological Interpretation in Support of the Commission The discussion of law in CAP shared management would be incomplete if it did not consider the role of the ECJ. The general reaction of EU lawyers is for the eyes to glaze over concerning annulment actions in relation to EAGGF funding. The Court’s contribution to the ‘law’ that governs the CAP regime is, nonetheless, important. It interpreted the legislation in a teleological manner, with important consequences for the allocation of financial responsibilities between the EU and the Member States. The ECJ allocated the risk of incorrect interpretation of the EU rules to the Member States. The Member States argued that the implication of Article 8(2)45 of Regulation 729/70 was that losses flowing from an incorrect, but bona fide, application of an EU rule by a national authority should be borne by the EU, except where there was negligence at the national level. The Court disagreed. It held that Article 8(2) contained ‘too many contradictory and ambiguous elements to provide an answer to the question at issue’.46 The ECJ decided the case on the basis of Articles 2 and 3, from which it concluded that only sums paid in accordance with the rules correctly interpreted could be charged to the EAGGF. It was for the Member States to bear the burden of other sums paid.47 The ECJ reasoned that otherwise Member States might give a broad i­nterpretation to the relevant rules, thereby benefiting their traders as compared to those in other states. The Court also made it easier for the Commission to impose financial corrections on the Member States in the clearance procedure. Most actions for judicial review

40  Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of accounts of the EAGGF Guarantee Section [1994] OJ L182/45. 41  Doc VI/216/93. 42  Court of Auditors, Special Report 22/2000 (n 35) 65–8. 43  Ibid 72. 44  Second CIE (n 5) [3.11.1]. 45  Reg 729/70 (n 12). 46  Case 11/76 Netherlands v Commission [1979] ECR 245, [6]. 47  Ibid [8].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

89

involved a challenge to the legality of flat-rate corrections. These were made by the Commission when it discovered a systemic weakness in the procedures of a paying agency, and it concluded that a series of irregular payments had been made. Flat-rate corrections could be 2, 5, or 10 per cent of the money disbursed, depending upon the seriousness of the deficiency, and the degree of probable loss to EU funds. The Court held that it was for the Member State, in accordance with Article 8(1),48 to ensure the correct implementation of the CAP, prevent irregularities, and recover sums lost due to irregularity or fraud. This was seen as an application of the general duty of cooperation in what is now Article 4(3) TEU.49 It was for the Commission to prove an infringement of the CAP rules, and to give reasons explaining the defect in the national procedures.50 However, the Commission was not required to demonstrate exhaustively that the checks carried out by national authorities were inadequate, or that there were irregularities in the figures submitted by them, but to adduce evidence of ‘serious and reasonable doubt on its part regarding those checks or figures’.51 The rationale for this ‘mitigation of the burden of proof ’ was that it was the Member State that was best placed to verify the data required for the clearance of the EAGGF accounts. Therefore it was for the state to adduce evidence to show that it had carried out the necessary checks, or that its figures were accurate, and that the Commission’s assertions were inaccurate.52 This judicial reasoning was of real importance for the clearance procedure. It ­legitimated the system of flat-rate corrections, without which the compliance aspect of clearance would have been unworkable. It went a considerable way to negate the damaging force of Article 8(2), under which the financial consequences of irregularities or negligence were borne by the EU, unless attributable to irregularities or negligence by the national agencies. The Commission carried out inspections of national procedures, and might conclude that there was a serious and reasonable doubt as to the soundness of these procedures, or the correctness of the national figures. The ‘mitigation’ of the burden of proof means that it was for the Member State to adduce evidence to dispel those doubts. It was, in this sense, much easier to ‘attribute’ the irregularities to the Member States, denying them the safe haven of Article 8(2).

(G) The Reformed CAP: Looking to the Future The reforms to the CAP have been touched on earlier. The shift to income support that is largely decoupled from production is central to the new regime, as is the condition that such payments are conditional on compliance with standards concerning the environment, food safety, animal and plant health, and animal welfare. 48  Reg 1258/1999 (n 22). 49  Case C-235/97 France v Commission [1998] ECR I-7555, [45]; Case C-278/98 Netherlands v Commission [2001] ECR I-1501, [92]. 50  Case C-253/97 Italy v Commission [1999] ECR I-7529, [6]; Case C-278/98 Netherlands v Commission (n 49) [39]. 51  Case C-54/95 Germany v Commission [1999] ECR I-35, [35]; Case C-278/98 Netherlands v Commission (n 49) [40]. 52  Case C-278/98 Netherlands v Commission (n 49) [41].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

90

ADMINISTRATION AND LAW

These substantive changes to the CAP regime have been accompanied by reforms relating to the administration and financing of the CAP, which took effect from 1 January 2007.53 Administration of the CAP is now in the hands of the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD).54 The EAGF continues the work of the EAGGF, Guarantee section, and administers direct payments to farmers and measures regulating or supporting agricultural markets. The EAFRD administers the EU’s financial contribution to rural development programmes. The rules relating to accreditation of national paying agencies have been reinforced, and where more than one agency exists within a Member State it must specify one agency that will act as the coordinating body.55 Member States must, as in the past, designate a certification body to verify the accounts of the accredited paying agency, and both types of body must supply the Commission with a variety of information.56 Member States are under a duty to adopt all necessary measures to ensure protection of the EU’s financial interests, including the prevention of irregularities and the recovery of sums lost through irregularity or negligence.57 The Commission is empowered to reduce or suspend monthly payments if information supplied by the Member States indicates that funds have not been used in compliance with EU rules.58 The 2013 Regulation contains important provisions concerning clearance of accounts, designed to ensure that EU funds have been spent as intended.59 It is important to see the substantive provisions on the CAP based on income support and rural development, in tandem with the modified rules on administration and financing. There is little doubt that the shift from production subsidies to income support will reduce fraud. The very complexity of the previous regime with its multiplicity of rules relating to quotas, subsidies, and the like invited the fraud that has been an endemic problem in this area. The new system, however, has its own problems. The criteria for direct farm payments cast in terms of compliance with environmental, food safety, animal and plant health, and animal welfare standards can be difficult to evaluate. These difficulties are exemplified by Reports of the Court of Auditors60 that identified problems in the single payment scheme for farmers that lies at the heart of the reformed CAP,61 weaknesses in the scheme for agri-environment support for farmers,62 difficulties with clearance of accounts,63 and shortcomings in the control systems concerning the regularity of payments.64 53  Reg 1290/2005 (n 23) Arts 2–4. 54  https://ec.europa.eu/agriculture/cap-overview_en; https://ec.europa.eu/agriculture/cap-funding_en. 55  Reg 1306/2013 (n 23) Art 7(4). 56  Ibid Art 9. 57  Ibid Arts 56, 58. 58  Ibid Arts 63, 64. 59  Ibid Arts 47–53. 60  The reports are available at https://www.eca.europa.eu/en/Pages/AuditReportsOpinions.aspx. 61  Court of Auditors, Special Report 5/2011, Single Payment Scheme (SPS): Issues to be Addressed to Improve its Sound Financial Management. 62  Court of Auditors, Special Report 7/2011, Is Agri-Environment Support Well Designed and Managed? 63  Court of Auditors, Special Report 7/2010, Audit of the Clearance of Accounts Procedure. 64  Court of Auditors, Annual Report on the Implementation of the Budget [2010] OJ C303/1, [3.70]–[3.72]. See also Court of Auditors, Special Report 1/2016, Is the Commission’s system for performance measurement in relation to farmers’ incomes well designed and based on sound data?

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

91

4  The Structural Funds (A) The Treaty Foundations The principal provisions concerning the Structural Funds have been amended on a number of occasions since they first appeared as a discrete title in the EC Treaty. These developments will be considered later. It is nonetheless helpful to set out the relevant Treaty articles at this juncture. Article 174 TFEU is now the foundational provision. In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion. In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions.

This principle is then fleshed out by Article 175 TFEU. Member States are to conduct their economic policies and coordinate them so as to attain the objectives set out in Article 174. Union policy in relation to the internal market must also take into account the objectives specified in Article 174. The EU is to support the attainment of these aims through the Structural Funds: the EAFRD; the European Social Fund (ESF); and the European Regional Development Fund (ERDF); and the European Maritime and Fisheries Fund.65 The ERDF is especially important. It is to help to redress the main regional imbalances in the EU through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.66 There is also a Cohesion Fund (CF) to provide a  financial contribution to environmental projects and trans-European networks ­relating to transport infrastructure.67 The European Parliament and Council, acting under the ordinary legislative ­procedure, and consulting with the European Economic and Social Committee (ECOSOC) and the Committee of the Regions, define the tasks, priority objectives, and organization of the Structural Funds. The same procedure is used for the enactment of general rules applicable to the Funds, which are designed to ensure their ­effectiveness and the ­coordination between them.68 The Commission must report every three years to the Council, the European Parliament, ECOSOC, and the Committee of the Regions on progress towards achieving economic and social cohesion and the contribution of the Funds to this end.69

65  http://ec.europa.eu/regional_policy/en/funding/.   66  Art 176 TFEU. 67  Art 177 TFEU.    68  Art 177 TFEU. 69  Art 175 TFEU.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

92

ADMINISTRATION AND LAW

(B) The Genesis of Structural Fund Policy The Treaty articles provide the legal framework for Structural Fund policy, but provide little by way of understanding of the forces that led to the inclusion of this Title in the Treaty, or the ways in which it has developed since its inception.70 The original Rome Treaty contained no specific commitment to adjust the imbalance between the regions in Europe. It did, however, contain within the list of general objectives the promotion throughout the Community of a harmonious development of economic activities and a continuous and balanced expansion; and the Preamble made reference to reducing the differences between the various regions and the ­backwardness of the less favoured regions. The initial impetus for a more specific Community role in regional policy came from the Commission and in 1967 a directorate dealing with this area was established. This was followed in 1969 by Commission proposals for the coordination of Member State regional policy, and for the creation of Community regional policy. These initial proposals were not well received by major players such as Germany and France. The fact that a Community regional policy was nonetheless established but three years later was due to a number of factors. Discussion of moves towards economic and monetary union was one such factor, since it was recognized that significant regional disparities would impede this development. Enlargement was another factor, since the then new entrants, Britain, Ireland, and Denmark, each had disadvantaged regions that would benefit from a Community regional policy. The Paris Summit in 1972 decided in favour of a Community regional policy, and this was given further impetus by the Thomson Report in 1973 by the EC Regional Policy Commissioner. The Paris Summit in 1974 agreed to the setting up of the ERDF, although the birth was not easy and was accompanied by much brinksmanship by the major state players. These ­disagreements spilled over into wrangles about the amount available for disbursement, and the 1974 Summit finally agreed on £540 million. The money was allocated in accord with national quotas, rather than by objective Community criteria as advocated by the Commission.

70  G Marks, ‘Structural Policy in the European Community’ in A Sbragia (ed), Euro Politics: Institutions and Policymaking in the ‘New’ European Community (Brookings Institution, 1992); G Marks, ‘Structural Policy and Multilevel Government’ in A Cafruny and G Rosenthal (eds), The State of the EU, Vol 2: The Maastricht Debates and Beyond (Longman, 1993) 395; J Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Open University Press, 1995); M Pollack, ‘Regional Actors in Intergovernmental Play: The Making and Implementation of EC Structural Policy’ in C Rhodes and S Mazey (eds), The State of the European Community, Vol 3: Building a European Polity (Longman, 1995); L Hooghe (ed), Cohesion Policy and European Integration (Oxford University Press, 1996); I Bache, The Politics of European Union Regional Policy: Multi-Level Governance or Flexible Gatekeeping? (Sheffield Academic Press, 1998); T Christiansen, ‘Territorial Politics in the EU’ (1999) 6 JEPP 349; J Scott, ‘Regional Policy: An Evolutionary Perspective’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 17; A Evans, The EU Structural Funds (Oxford University Press, 1999); J Sutcliffe, ‘The 1999 Reform of the Structural Fund Regulations: MultiLevel Governance or Renationalization?’ (2000) 7 JEPP 290.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

93

(C) The 1988 Reforms There were significant reforms to the Structural Funds in 1988. The forces driving the reforms were eclectic. There was dissatisfaction with the regime established in 1975 in terms of the meagre amount available for disbursement and because the principles governing the allocation of funds, such as additionality, were often ignored. There were new entrants to the Community, Spain and Portugal, who had incentives to press for a more vibrant Structural Fund policy. Reform of Structural Fund policy was also a consequence of the drive to complete the internal market heralded by the Single European Act 1986 (SEA). This was seen as necessary to ensure the acceptability of the market-based initiatives in the SEA. There were fears that it would be the wealthier economies that would ­benefit from completion of the single market, with the consequence that the gap between them and the less advantaged economies would widen. Reform of the Structural Funds was seen as one way of alleviating these concerns. The Treaty was amended through inclusion of new articles under the Title of Economic and Social Cohesion, and there was a commitment to double the funding. This was accompanied by the passage of regulations setting out the principles to guide operation of the Funds. Regulation 2052/8871 identified the principal objectives and tasks of the Funds. Five such objectives were set out.72 Objective 1 was the promotion of the development and structural adjustment of the regions whose development was lagging behind. Objective 2 was the conversion of regions seriously affected by industrial decline. Objective 3 was to combat long-term unemployment. Objective 4 was to assist in the occupational integration of young people. Objective 5 was concerned with reform of the CAP. A  small percentage of the budget, approximately 9 per cent, could be used for Community initiatives, programmes designed by the Commission to meet particular regional needs. A number of principles ran through the 1988 scheme. It was premised on concentration, this connoting the idea that funding should be allocated to the areas in greatest need. The concept of additionality was always central to the Commission conception of Structural Fund assistance. This connoted the idea that the Commission and the Member States should ensure that expenditure from the Funds had a genuine a­ dditional impact in the regions concerned and resulted in at least an equivalent increase in the total volume of official or similar (Community and national) structural aid in the Member State concerned, taking into account the macroeconomic circumstances in which the funding takes place.73 The idea of partnership was equally central to the 1988 scheme. Article 4 of Regulation 2052/88 provided that Community operations ‘shall be 71  Council Regulation (EEC) 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their e­ffectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9. 72  Ibid Arts 1–2. 73  Council Regulation (EEC) 4253/88 laying down provisions for implementing Regulation (EEC) 2052/88 [1988] OJ L374/1, Art 9.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

94

ADMINISTRATION AND LAW

established through close consultations between the Commission, the Member State concerned and the competent authorities designated by the latter at national, regional, local or other level with each party acting as a partner in pursuit of a common goal’. The partnership was to cover the preparation, financing, monitoring, and assessment of the operations. This led naturally to the fourth guiding principle: programming: funding would be given for a period of years, and the 1988 regulations established a detailed scheme whereby the different players of the partnership would interrelate. The CSF was central to the operation of the Funds. The Member State, having consulted the relevant parties, submitted to the Commission its regional development plans, setting out its regional development priorities and the operational programmes it wished to pursue. The Commission reviewed the proposed plans and programmes for conformity with the Regulation. It then established, through the partnership referred to above, and in agreement with the Member State, the CSF for Community Structural Fund operations. The CSF specified the priorities adopted for Community assistance, the forms of the assistance, its duration, and the financing plan. There was then more detailed elaboration of the operational programmes that had been given the green light by the CSF.

(D) The 1993 Reforms There was further reform of the Structural Funds in 1993, which was motivated by broader developments in the EU and within the national economies. The Maastricht Treaty contained new provisions on economic and monetary union. This created pressure to increase the amount available for regional aid, resulting in agreement that the budget for the Structural Funds should be increased to 27.4 billion ECUs by 1999. Pressures from Member States, particularly Spain, led to the creation of the Cohesion Fund, to provide a further compensatory mechanism for poor Member States. A sum in the order of 16 billion ECUs was allocated to the fund for the period between 1993–9.74 The downturn in the economies of some Member States created countervailing concerns about the effectiveness of Community policies, leading to demands that the ­regulatory provisions concerning assessment and monitoring of Structural Fund ­operations should be strengthened. The 1993 reforms modified the objectives of Structural Fund policy.75 Objectives 1 and 2 remained the same. However, the previous objectives 3 and 4 were merged to create a new Objective 3 combating long-term unemployment and promoting entry to the labour market. There was a new Objective 4 designed to facilitate the adaptation of workers to industrial change. There were also modifications to Objective 5, most importantly through the creation of a new fund, the Financial Instrument of Fisheries Guidance, which would address problems resulting from the decline in fishing. A new

74  Council Regulation (EC) 1164/94 of 16 May 1994 establishing a Cohesion Fund [1994] OJ L130/1, Art 7. 75  Council Regulation (EEC) 2081/93 of 20 July 1993 amending Regulation 2052/88 [1993] OJ L193/5, Art 1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

95

Objective 6 was added allowing funds to be used for the development of sparsely ­populated Nordic areas. The principles that had guided the policy in this area—concentration, additionality, partnership, and programming—continued to frame the regime post-1993. There were, however, modifications to the previous position. The weakening in the definition of additionality was most significant. It became possible to take into account ‘a number of specific economic circumstances, namely privatizations, an unusual level of public structural expenditure undertaken in the previous programming period and business cycles in the national economy’.76 This made it increasingly difficult for the Commission to argue that Community funds were being used instead of national expenditure.

(E) The 1999 Reforms The Structural Funds were reformed once again in 1999, on this occasion in the shadow of enlargement. The shadow cast by the prospective enlargement was highly significant in budgetary terms, since the extension of the existing regime to the new Member States would mean a radical increase in the overall cost of the regional programme. The sum of €195 billion was allocated to the Funds for the period 2000–6, €18 billion for the Cohesion Fund, and a further €7.28 billion for pre-accession structural assistance. Regulation 1260/9977 reduced the objectives that could be pursued through the Structural Funds to three. Objective 1 continued to be concerned with the development and structural adjustment of regions whose development lagged behind, defined as those with a GDP 75 per cent or less than the EU average over the previous three years.78 Objective 2 was cast in terms of supporting the economic and social conversion of areas facing structural difficulties.79 Objective 3 was now framed in terms of support for the adaptation and modernization of systems of education, training, and employment.80 The principles that had guided policy in this area continued to apply, albeit with some modification. The emphasis on concentration was retained. This was manifest in the reduction of the objectives from six to three, in the strictures in the 1999 schema that the criteria for inclusion in these objectives would be strictly applied, and  in the reduction of the Community’s own initiatives from thirteen to three. The concept of additionality was preserved, albeit with the same basic criterion as contained in the 1993 regulations.81 The 1999 schema, however, attempted to put ‘more bite’ into this idea, by providing more specific details as to how additionality would be estimated in relation to the 76  Council Regulation (EEC) 2082/93 of 20 July 1993 amending Regulation 4253/88 [1993] OJ L193/20, Art 9(2). 77  Council Regulation (EC) 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds [1999] OJ L161/1, Art 1. 78  Ibid Art 3(1). 79  Ibid Arts 1(2), 4(1). 80  Ibid Art 1(3). 81  Ibid Art 11(2).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

96

ADMINISTRATION AND LAW

different objectives eligible for funding, and by delineating in more detail three verification points at which the calculus would be undertaken.82 The Member State retained control over the baseline figures for domestic funding. The idea of partnership remained central to Commission thinking, and the operative provision was modified such that the Member States in designating the relevant bodies within their own states should take account of the need to promote equality between men and women, and sustainable development through the integration of environmental protection and improvement requirements.83 Programming continued to be integral in the 1999 scheme, being made operational through the CSFs.84 There was, however, a shift towards delegating more responsibility to the Member States for the implementation of and monitoring of particular programmes.

(F) The 2007 Reforms The Structural Fund regime was further reformed through Regulations that cover the period from 2007–13.85 A sum in the order of €336.1 billion, or one-third of the EU budget, was allocated. The principal catalysts for reform were enlargement, coupled with a desire to link the Structural Fund regime more closely with other EU initiatives, the Lisbon and Gothenburg agendas concerning the knowledge economy and the employment strategy. The Regulation made a number of important changes to the ­pre-existing order and further decentralized operations in this area. The objectives were recast.86 Objective 1 was now cast in terms of convergence, although it was close to the previous objective of helping those areas that were lagging behind in terms of development. This objective took the biggest share of available funds, 81.54 per cent. The key test for eligibility was that the region had a per capita GDP that was less than 75 per cent of the average for the enlarged EU, this applying mainly to the new Member States. Objective 2 was modified to focus on regional competitiveness and employment, and all regions not covered by the convergence objective were eligible. It took 15.95 per cent of resources. Objective 3 was European territorial cooperation which was designed to foster cross-border cooperation and took the remaining 2.51 per cent of available resources. The principles that guided structural policy hitherto were preserved,87 albeit with some modification. There is a clear emphasis on the need to concentrate the resources on the areas that are in the greatest need, as reflected by the fact that the bulk of the funding is devoted to convergence. Programming, partnership, and additionality ­continue to feature prominently in the new regime. There is, however, more reference

82  Ibid Arts 11(2), 11(3). 83  Ibid Art 8(1). 84  Ibid Arts 13–19. 85  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 [2006] OJ L210/25; Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 [2006] OJ L371/1. 86  Reg 1083/2006 (n 85) Art 3(2). 87  Ibid Arts 9–17.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

97

to proportionality and subsidiarity, signalling that oversight and management of ­operational programmes would be undertaken by the Member States.88 This was reflected moreover in the provisions on additionality which indicated that this would only be monitored by the Commission in relation to the convergence objective.89 The documentation related to programming was significantly altered. CSFs, Single Programming Documents, and Programme Complements were replaced by a new scheme. The Council established strategic guidelines for Community Structural Fund policy, taking account of the medium-term economic strategy as contained in the Broad Economic Policy Guidelines and the European Strategy for Employment.90 Each Member State prepared a National Strategic Reference Framework (NSRF), which set out how the Member State intended to use funding for Objectives 1 and 2 in the period 2007–13.91 The Member State had to submit data justifying an operational programme for Objectives 1 and 292 and the Commission could require modification to particular operational programmes if they were not consistent with the Council’s strategic guidelines or the NSRF.93 The intent behind the new scheme was, however, that the Commission’s ‘adoption’ of the operational programme took place at an aggregate level, in the sense that only the most important priorities would be highlighted, with further detail being left to the Member States.

(G) The 2013 Reforms The present regime is governed by Regulation 1303/2013.94 The priorities for 2014–20 include a stronger focus on results, enhanced accountability, simplification, and the fight for social inclusion. The Structural Funds have been related more closely to other aspects of EU policy. This is evident from the more direct link between Structural Fund policy and EU economic policy, such that if a Member State does not comply with the latter, then its payments from the Structural Funds may be reduced.95 This linkage is evident yet again in the fact that Article 9 provides that in order to contribute to EU strategy for ‘smart, sustainable and inclusive growth as well as the Fund-specific missions pursuant to their Treaty-based objectives, including economic, social and territorial cohesion’, each of the Structural Funds should support the ­following more general thematic objectives:96 strengthening research, technological

88  Ibid Art 13. 89  Ibid Art 15. 90  Ibid Arts 25–26. 91  Ibid Art 27. 92  Ibid Art 37. 93  Ibid Art 32(4). 94  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 [2013] OJ L347/320. 95 http://ec.europa.eu/regional_policy/en/policy/how/priorities/. 96  For studies concerning the effectiveness of this new approach, see http://ec.europa.eu/regional_policy/ en/policy/how/improving-investment/studies_integration/.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

98

ADMINISTRATION AND LAW

development, and innovation; enhancing access to ICT; enhancing the competitiveness of small and medium-sized enterprises, and the agricultural and fisheries sectors; ­supporting the shift towards a low-carbon economy in all sectors; promoting climate change adaptation, risk prevention, and management; preserving and protecting the environment and promoting resource efficiency; promoting sustainable transport; promoting sustainable and quality employment, and supporting labour mobility; ­promoting social inclusion, combating poverty, and any discrimination; investing in education, training, and vocational training; and enhancing institutional capacity of public authorities and stakeholders and efficient public administration.97 Implementation of Structural Fund policy is the result of a process of consultation between the Commission and Member States.98 Thus, each Member State produces a draft Partnership Agreement, which outlines the country’s strategy and proposes a list of programmes. The Member States present draft operational programmes, which cover entire Member States and/or regions, and represent that Member State’s ­priorities. There can also be cooperation programmes involving more than one country. The Commission negotiates with the national authorities on the final content of the Partnership Agreement, as well as each of the programmes. There will be managing authorities in each Member State, which have overall responsibility for the correct deployment of this funding. The principles that guide Structural Fund policy have largely been preserved, these being concentration, programming, partnership, and additionality.99

(H) The Framework of Shared Management The discussion thus far has focused on the development of Structural Fund policy over time. This is essential in order to understand the subsequent discussion. It is equally important to stand back from the temporal development and appreciate the sense in which this area exemplifies shared management. We should recall here the helpful definition of shared management provided by the Committee of Independent Experts and which is quoted at the end of Section 1 above. Structural Fund policy is especially interesting in this respect, since shared management operates, albeit in different ways, in relation to project and programme selection, and in relation to implementation and monitoring of selected projects and programmes. Shared management applies therefore both to the input and the output stage. The role of law in both dimensions will be considered in the section that follows.

97  European Structural and Investment Funds 2014–2020, 2016 Summary Report of the programme annual implementation reports covering implementation in 2014–2015, COM(2016) 812 final. 98  For strategies to improve implementation at Member State level, see http://ec.europa.eu/regional_policy/ en/policy/how/improving-investment/. 99  Reg 1303/2013 (n 94) Arts 14–18, 26–30, 95, Annex X; http://ec.europa.eu/regional_policy/en/policy/ how/principles/.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

99

5  The Structural Funds, Shared Management, and Law (A) The Delineation of Legislative Objectives: The Tension between the Collective Interest and the Interests of Individual Member States The previous discussion on the role of law in the context of the CAP revealed a tension between the collective interest and the interests of individual Member States. The same tension is apparent, albeit in different ways, in relation to both the input and output dimensions of the Structural Funds. This tension can be outlined here and will be explicated more fully later. In terms of inputs, the successive regulations on the Structural Funds embodied commitments to concentration, additionality, partnership, and programming as ideals that shaped the collective interest in a rational EU regional policy. The legislation, however, accorded the Member States significant discretion concerning the application of these ideals in the context of project selection, or the legislation was amended to weaken the peremptory force of the particular collective commitment. In terms of output, it is clear that the collective interest favours the proper deployment of resources to attain the goals of EU regional policy. This requires machinery to ensure that projects and programmes are properly monitored, that there is effective machinery to detect financial irregularity through audit and the like, and that the rules provide a meaningful regime for compliance by the relevant players. Individual Member States may, however, have an incentive to avoid these consequences in relation to their own projects, more especially where the consequences could be financial penalties on the state, or the withholding of further disbursements. This issue is particularly significant given that the strategy in the 1999 regulations was to devolve more responsibility for monitoring to the Member States, since the Commission did not possess the requisite resources. It is then all the more important that the legislative rules casting the Member State as gamekeeper do not allow it to become poacher, or to turn a blind eye to poaching by others. The tensions between the collective interest and that of the Member States came to  the fore in the Second Report of the Committee of Independent Experts. The Committee made two kinds of observations concerning the Structural Funds. It was, on the one hand, critical of certain aspects of the legislative design embodied in the Structural Fund regulations even after 1999. The Committee concluded that the balance of decision-making power had shifted to the Member States, but that a number of factors tended to divest them of responsibility:100 the criterion for additionality was weak;101 the shift to programming post-1988 removed the greater part of Commission

100  Ibid Vol I, [3.22].

101  Ibid Vol I, [3.19].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

100

ADMINISTRATION AND LAW

control over individual projects;102 and the ceiling of expenditure for each Member State was in effect also a target, with implications for project selection, evaluation, and control,103 this being exacerbated by Member States’ ability to substitute projects for those declared ineligible.104 The Committee, on the other hand, expressed concern about the practical ­effectiveness of the powers possessed by the Commission. Thus while the Committee was mindful of the improvements in the 1999 regulations concerning proper management and ­control systems, it felt that the resources for control were ‘woefully inadequate to ensure proper implementation of the new Regulation’.105 It expressed similar reservations about the powers relating to on-the-spot checks, and the paucity of claims for recovery in cases of financial irregularity. These provisions were of limited efficacy, not because of inadequacies in the legislation per se, but because of inadequate implementation by the Commission combined with resistance by the Member States.106

(B) Legislative Design and Input: Project Selection The way in which the tensions between the collective and individual interest affected attainment of the ideals underpinning the Structural Fund regulations can now be explored more fully. We can begin by focusing on partnership. There is a duality in the very meaning of partnership in the regulatory provisions. In formal legal terms, partnership primarily connotes a relationship between the Member States and the Commission in the application of regional policy. It also captures the idea that when devising a development plan the Member State should involve regional bodies, local authorities, and the like.107 The relationship between these two senses of partnership lies at the root of the debate among political scientists as to whether this area exemplifies multilevel governance, or whether it is best explained in liberal intergovernmentalist terms. Proponents of ­multilevel governance point to the Commission’s discretion over indicative allocations per Member State and also the involvement of sub-national actors in the drawing up of the development plan, coupled with its implementation.108 Those who espouse a more liberal intergovernmentalist view respond by pointing to the controls that remain in the hands of the Member States.109 Thus the Member States designated the bodies that took part in the formulation of the plan.110 This combined with other provisions ­enabled the Member State to operate as an ‘extended gatekeeper’, maintaining control over all stages of the policy process, including implementation. On this view, there may well be evidence of multilevel involvement in the implementation of EU regional policy, but less of a case for multilevel governance as such. The duality in the key legal provisions about partnership is central to an understanding of this debate.

102  Ibid Vol I, [3.18]. 103  Ibid Vol I, [3.15.6]. 104  Ibid Vol I, [3.18.1]–[3.18.3]. 105  Ibid Vol I, [3.17.3]. 106  Ibid Vol I, [3.17.4]–[3.17.6]. 107  Reg 1260/1999 (n 77) Art 8. 108  Marks (n 70). 109  Pollack (n 70). 110  Reg 1260/1999 (n 77) Art 8.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

101

The idea of partnership in the first sense, as between the Commission and the Member States, leaves unresolved the precise degree of power wielded by each at the input stage. Prior to 1988 each Fund operated in isolation, and assistance was granted to individual projects proposed by states and approved by the Commission. In 1988 the Structural Funds moved to coordinated operations on the basis of multi-annual programming. The move from individual projects to programming, and from Member State quotas to indicative ranges determined by the Commission, gave the Commission some significant control over policy formulation and the identification of priorities. The Commission’s discretion in this respect was, however, bounded by specified ­criteria.111 It should also be recognized in estimating the balance of power under this partnership that the legislative schema accorded significant powers to the Member States. The development plans were designed by the Member States, and these formed the basis of their operational programmes. The Commission determined whether the operational programmes were consistent with the aims of the CSF drawn up by the Commission in agreement with the relevant Member State. When a programme was approved and the Community contribution fixed, the 1988 and 1993 regulations made no express provision for the selection of individual projects to implement the programme. This was left to the Member States. In practice, it was reportedly carried out by the monitoring committees.112 Under the 1999 regulations, Member States had to submit a ‘programme complement’113 detailing the individual measures to be assisted and the types of final beneficiary, as well as the financing plan for each measure.114 Thus while programmes had to be approved by the Commission, they were drawn up by the Member States. This ordering of power as between the Commission and the Member States continued in subsequent regimes,115 although the Commission is empowered to determine whether the proposed operational programme contributes to the goals of the national strategic reference framework and the EU strategic guidelines on cohesion, and can require the Member State to revise the proposed programme.116 The idea of partnership in the second sense, capturing the EU’s desire formally to involve actors other than the Member States in the decision-making process, has been tempered by the Member States’ desire to retain control over who should participate, and the extent of this participation. It is the Member State that designates within the framework of its ‘national rules and current practices’ the bodies that participate in drawing up the development plan.117 The tension between the collective interest and that of individual Member States is also evident in relation to additionality. It was always central to the collective interest 111  Ibid Arts 3(1), 4, 7(3). 112  J Scott, ‘Law, Legitimacy and EC Governance’ (1998) 36 JCMS 175, 183, 187; Scott, ‘Regional Policy’ (n 70) 634–7. 113  Reg 1260/1999 (n 77) Art 15(6). 114  Ibid Art 18(3). 115  Reg 1083/2006 (n 85) Art 32; Reg 1303/2013 (n 94) Arts 26–29. 116  Reg 1083/2006 (n 85) Art 32(4); Reg 1303/2013 (n 94) Art 29. 117  Reg 1260/1999 (n 77) Art 8(1); Reg 1083/2006 (n 85) Art 11(1).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

102

ADMINISTRATION AND LAW

in the overall regional programme, connoting the idea that EU aid should not be an excuse for the diminution of national aid. The legal force of this commitment in Article 9 of Regulation 4253/88118 was, however, qualified by the fact that it allowed account to be taken of the ‘macro-economic circumstances in which the funding takes place.’ Later amendments further weakened the force of this provision. It became possible to take into account ‘a number of specific economic circumstances, namely privatizations, an unusual level of public structural expenditure undertaken in the previous programming period and business cycles in the national economy’,119 thereby making it increasingly difficult for the Commission to argue that EU funds were being used in place of national expenditure. The Court of Auditors attested to the very real difficulties in the application of additionality.120 The practical force of additionality was strengthened in the 1999 Regulation by the obligation cast on the Member State to determine the level of expenditure that it would maintain in, for example, Objective 1 regions, for the programming period of five years and to make this commitment as a precondition to the approval of any CSF.121 Additionality was verified ex ante, at midterm, and at the end of the six-year period.122 This general approach has been preserved in the 2007 and 2013 scheme for the convergence objective.123

(C) Legislative Design and Output: Payment and Incentives for Compliance The tension between the collective EU interest and that of individual Member States is also apparent at the output stage. If the regime of shared management is to be effective, then proper attention must be given to legislative design in this respect. There must be appropriate rules relating to matters such as payment, monitoring, audit, and the like, more especially given the plethora of projects that benefit from EU funding. We can begin by considering the payment regime. Advance payments give the national authorities control over disbursement of the funds, while reimbursements leave that control ultimately with the Commission, which can refuse to reimburse ineligible or otherwise irregular expenditure. Prior to 1999 payments were made according to annual commitments,124 although they could be suspended where Commission examinations revealed irregularities.125 Up to 80 per cent of the annual commitments were paid through two advances.126 National authorities could rely on continuous advance payments to cover payments to beneficiaries, without too close an inspection of progress. The Commission could

118  See n 73. 119  Reg 2082/93 (n 76) Art 9(2). 120  Court of Auditors, Special Report 6/99, Concerning the Application of the Principle of Additionality [2000] OJ C68/1. 121  Reg 1260/1999 (n 77) Art 11(2). 122  Ibid Art 11(3); Twelfth Annual Report on the Structural Funds (2000), COM(2001) 539 final, [2.1.4]. 123  Reg 1083/2006 (n 85) Art 15(4); Reg 1303/2013 (n 94) Art 15, Annex X. 124  Reg 4253/88 (n 73) Art 21(1). 125  Ibid Art 24(2). 126  Ibid Art 21(2) and (3).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

103

suspend payments altogether for irregularities, or reduce future commitments because of lack of progress, but these controls largely applied after the fact.127 The legal regime changed considerably post-1999. The general rule now is for reimbursement of expenditure actually incurred. Commitments and payments were disassociated under the 1999 Regulation. Commitments are still made on an annual basis, but the bulk of payments are now firmly linked to expenditure. Pre-financing is strictly limited to 2–3 per cent of assistance.128 After that, all interim and final payments are made to reimburse eligible expenditure, which must be certified by the Member State.129 Payments may be suspended if there is evidence of a significant deficiency in the national management and control system.130

(D) Legislative Design and Output: Control Systems, Reporting, Checks, and Incentives for Compliance The legislative design of the payment regime is a necessary condition for effective shared management. It is not sufficient. There must also be effective control systems over the disbursement of funds at national level. The applicable provisions have been tightened over time. The regime prior to 1999 showed a gradual ‘ratcheting up’ of the relevant provisions. The ‘1988 scheme’ required Member States to take the necessary measures to verify that operations were carried out properly, to prevent and take action against i­rregularities, and to recover amounts lost through irregularity or negligence.131 Member States also had to designate appropriate authorities to certify the correctness of the information supplied in payment requests and reports.132 The ‘1993 amendments’ went further and required Member States to notify the Commission of the management and control systems it had established.133 This obligation was spelt out in greater detail in the ‘1997 amendments’.134 The national control systems had to ensure: proper implementation in accordance with sound financial management; certify the validity of payment claims; provide a sufficient audit trail; facilitate identification of possible weaknesses; and provide for corrective measures to eliminate irregularities.135 The obligations on Member States to prevent financial irregularities were also tightened during this period.136

127  S White Protection of the Financial Interests of the European Communities: The Fight against Fraud (Kluwer Law International, 1998) 98–9. 128  Reg 1083/2006 (n 85) Art 82. 129  Ibid Arts 85–88. 130  Ibid Arts 91–92; Reg 1303/2013 (n 94) Arts 76–82. 131  Reg 4253/88 (n 73) Art 23(1). 132  Ibid Art 21(3)–(5). 133  Reg 2082/93 (n 76) Art 23(1). 134  Commission Regulation (EC) 2064/97 of 15 October 1997 establishing detailed arrangements for the implementation of Council Regulation (EEC) 4253/88 regards the financial control by Member States of operations co-financed by the Structural Funds [1997] OJ L290/1. 135  Ibid Art 2. 136  Reg 4253/88 (n 73) Art 23(1); Commission Regulation (EC) 1681/94 of 11 July 1994 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the structural policies and the organization of information systems in this field [1994] OJ L178/43; Reg 2064/97 (n 134) Art 7.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

104

ADMINISTRATION AND LAW

The regime post-1999 developed and reinforced the strategy from earlier regulations. There are detailed rules concerning management and control systems. Member States must designate managing authorities for each operational programme, which have a plethora of responsibilities for the correctness, efficiency, and management of  the programme.137 The Member States must also designate a separate certifying authority, to certify expenditure and payment requests before they are sent to the Commission. There must in addition be national audit authorities that verify the ­effective functioning of the management and control systems, and audit the accounts. Monitoring committees are also required for each operational programme, and must be satisfied with the quality and implementation of the operational programme in accord with specified criteria.138 The rules concerning management and control ­systems are reinforced by extensive national reporting requirements. This is important since it will have a marked impact on the effectiveness of the other regulatory controls.139 The preceding regulatory controls are further reinforced by provisions which give the Commission power to evaluate national systems and to conduct on-the-spot audits.140

(E) Legislative Design and Output: Correction of Irregularities, Sanctions, and Incentives for Compliance It is essential if the policy objectives are to be achieved that there should be adequate sanctions. The general enforcement power under Article 258 TFEU can be used to enforce Member States’ obligations in relation to the Structural Funds. There are in addition other ways in which irregularities can be corrected and sanctions can be imposed. These operate through the Member States and the Commission. Member States have an obligation to take measures to correct irregularities and recover amounts lost.141 The Member State is liable for amounts unduly paid to a ­beneficiary that cannot be recovered, where the loss was the result of Member State negligence.142 The legislation imposes duties on Member States to investigate ­irregularities and to make the financial corrections flowing from such irregularities.143 The Commission also has powers and duties to prevent irregularity. The power to impose penalties is somewhat limited.144 The Commission’s principal sanctions are conditional payment and financial correction.

137  Reg 1303/2013 (n 94) Arts 72–74, 122–127. 138  Ibid Arts 110–111. 139  14th Annual Report on the Implementation of the Structural Funds, COM(2003) 646 final, [3.2]. 140  Reg 1303/2013 (n 94) Art 75. 141  Ibid Arts 72, 122. 142  Ibid Art 122.    143  Ibid Arts 122, 143. 144  Council Regulation (EC, Euratom) 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests [1995] OJ L312/1. This Regulation was passed to provide generally for administrative penalties for financial irregularities across all sectors of EU activity. It states that penalties may be imposed for either intentional or negligent irregularities, and may be applied either to the perpetrators of the irregularity, or to those with a duty to prevent or take responsibility for irregularities. However, the Regulation merely sets out framework rules, to be implemented by further sectoral legislation.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

105

Payments have been conditional on certified claims since 1988, and since 1999 they are almost exclusively by way of reimbursement of certified regular expenditure. Non-reimbursement of expenditure the regularity of which cannot be assured potentially represents an effective sanction and incentive to ensure the regularity of expenditure. The 1999 system included a new power to reduce the payment on account instead of making a financial correction.145 The 2006 and 2013 Regulations contain extensive provisions allowing payment to be interrupted, suspended, or withheld where there are  doubts concerning the management and control systems or the regularity of ­expenditure.146 In relation to financial corrections, the Structural Funds operate on a multi-annual basis. This provides the foundation for reducing or cancelling the EU contribution to a programme in the event of irregularities. We have already touched on the Member States’ obligations to carry out corrections. The focus here is the Commission’s power to make corrections. In the 1988 Regulations, the Commission was accorded a general power to reduce, suspend, or cancel assistance in the event of irregularity.147 The 1999 Regulations introduced more comprehensive provisions for financial corrections, which have been retained in the 2006 and 2013 Regulations. The Commission makes financial corrections by cancelling part of the EU contribution to an operational programme. It is largely a backup power, where the Member State has failed to carry out corrections, or failed to comply with its control and management obligations.148 The net effect is that where the Member State has already paid out on the irregular ­expenditure, cancellation and deduction from the next funding instalment means that the loss due to the irregularity is shifted to the Member State, leaving it out of pocket at the end of the programme unless it can recover from the beneficiaries. This effectively amounts to liability for amounts not recovered.

(F) The Contribution of the ECJ: Teleological Interpretation in Support of the Commission We saw that the ECJ played an important role in the CAP. Its role in relation to the Structural Fund Regulations has been less prominent, in part at least because there is no formal system of annual clearance of accounts of the kind that exists in the CAP regime, and it is this which provided the vehicle for most of the legal challenges in the agricultural sphere. The EU Courts have, nonetheless, played a significant role in the context of the Structural Funds. This has been most marked in relation to legal challenges to financial corrections. The 1988 Regulations allowed the Commission to reduce, suspend, or cancel assistance in the event of an irregularity.149 The EU Courts interpreted the relevant provisions 145  Reg 1260/1999 (n 77) Art 39(3)(a). 146  Reg 1083/2006 (n 85) Arts 91–92; Reg 1303/2013 (n 94) Arts 83, 142–143. 147  Reg 4253/88 (n 73) Art 24. 148  Reg 1083/2006 (n 85) Art 99; Reg 1303/2013 (n 94) Art 85. 149  Reg 4253/88 (n 73) Art 24.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

106

ADMINISTRATION AND LAW

broadly, so as to support the Commission in its endeavour to ensure the probity of the system. This is so both in substantive and procedural terms. The broad substantive interpretation of these provisions is exemplified by Conserve Italia.150 The ECJ accepted that Article 24(2) of Regulation 4253/88 did not expressly allow the cancellation of assistance. It concluded, nonetheless, that Article 24(2) would be deprived of its effectiveness if the Commission could not cancel the entirety of the assistance where this was warranted. This was more especially so because reduction of assistance directly in proportion to irregularities detected would encourage fraud, since applicants would risk only the loss of the sums unduly paid. In Valnerina151 the CFI held that it was acceptable in principle for a decision granting assistance to specify one of a number of parties involved as the sole person to be financially liable in the event of irregularities, provided that this was made sufficiently clear at the outset. In COPPI152 the ECJ considered whether it was lawful for a Member State to revoke ­assistance granted to an undertaking from the EAGGF, or whether this power was reserved to the Commission. The ECJ acknowledged that Article 23 of the Regulation did not expressly provide for this action by a Member State. It held, however, that the Article would be deprived of useful effect if a Member State could not adopt such measures, more especially because it had the primary responsibility for monitoring the operation of the project. The EU Courts have been equally strident in relation to procedural aspects of the enforcement regime. The CFI held in Sgaravatti Mediterranea153 that the Commission could validly comply with its obligation, contained in Article 24(1) of Regulation 4253/88, to conduct an examination prior to ordering reduction of assistance for ­irregularities, by relying on detailed investigations made by the national authorities. In Conserve Italia154 the ECJ held that it was essential for the proper functioning of the system of controls established to ensure the proper use of EU funds that applicants for aid provided the Commission with information that was reliable and not apt to mislead it. The same approach is evident in Thessalonikis.155 The CFI confirmed that the Commission had the burden of proof under Article 24 of Regulation 4253/88, but held that if examination revealed irregularities it was then for the beneficiary of the ­assistance to show that expenditure was properly incurred on the particular project. It was, moreover, for the beneficiary to provide the Commission with all documentation required to dispel the doubts raised by the Commission. Similar themes are apparent in Hortiplant,156 where the ECJ held that the Commission’s power to cancel 150  Case C-500/99 P Conserve Italia Soc Coop arl v Commission [2002] ECR I-867, [88]; Cases C-383– 385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid [2008] ECR I-1561. 151  Case T-340/00 Comunita Montana della Valnerina v Commission [2003] ECR II-811, [53]–[54]. 152  Case C-271/01 Ministero delle Politiche Agricole e Forestali v Consorzio Produttori Pompelmo Italiano Soc Coop arl (COPPI) [2004] ECR I-1029, [41]. 153  Case T-199/99 Sgaravatti Mediterranea Srl v Commission [2002] ECR II-3731, [45]. 154  See n 152 [100]. 155  Case T-196/01 Thessalonikis v Commission [2003] ECR II-3987, [47]. 156  Case C-330/01 Hortiplant SAT v Commission [2004] ECR I-1763, [31], [32].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

107

assistance under Article 24(2) of Regulation 4253/88 would be ‘totally deprived of usefulness if, prior to the adoption of a decision, the Commission were obliged to wait for the Member State concerned to submit its observations’.

(G) Formal Law and Efficacy The formal legal regime for the disbursement of Structural Funds has been tightened and strengthened since its inception. The present regime is nonetheless complex and places considerable reliance on effective interaction between the Commission and the Member States. This is especially so given the decentralization of responsibilities to the latter. It is therefore important to assess the effectiveness of this disposition of power and authority. Reports from the Court of Auditors are valuable in this respect. The Court of Auditors considered the efficacy of the financial controls introduced in 1994 and 1997.157 These Regulations upgraded the checks required on programmes co-financed from the Structural Funds and introduced a system for communicating information about irregularities that were detected by Member States. The Court found that the new regulatory regime had beneficial effects. It concluded, however, that there were instances where the Member States were not applying the rules correctly, in part because of inadequate guidance from the Commission. The data on irregularities was, moreover, incomplete and there was significant room for improvement in the follow up procedures by the European Anti-Fraud Office (OLAF) and the Commission in relation to these irregularities. The Court of Auditors conducted a general audit on the Structural Fund regime for 2000–6.158 It noted the achievements of the Commission during this period, but pointed to difficulties that still remained. The Report focused in part on the extent to  which funding assistance was actually reaching the intended regions in accord with Objectives 1 and 2 of the 1999 regime, and made recommendations to enhance ­effectiveness in this respect. It noted, moreover, the delays and unwieldiness in approving the Structural Fund programmes.159 The Report also considered the way in which the management and control systems were operating. It found there were delays in the introduction of such systems within some Member States.160 It affirmed the centrality of reliable data if devolved management subject to Commission supervision was to work.161 The Court of Auditors pointed to the danger that when the introduction of new functions was introduced piecemeal into national systems ‘there was an inherent risk as regards the separation of functions and the independence and operational ­efficiency of the new bodies’.162 Moreover, the allocation of the responsibility for

157  Court of Auditors, Special Report 10/2001, Concerning the Financial Control of the Structural Funds, Commission Regulations 2064/97 and 1681/94, together with the Commission’s Replies [2001] OJ C314/26. 158  Court of Auditors, Special Report 7/2003, On the Implementation of Assistance Programming for the Period 2000 to 2006 within the Framework of the Structural Funds, together with the Commission’s Replies [2003] OJ C174/1. See also Annual Report (n 64) [4.34]–[4.39]. 159  Special Report 7/2003 (n 158) [18]–[24]. 160  Ibid [55]. 161  Ibid [59]. 162  Ibid [64].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

108

ADMINISTRATION AND LAW

­ anagement, payment, and certification to a single national institution, even if difm ferent departments therein performed separate functions, could lead to conflicts of interest, unless their operational independence was safeguarded in advance.163 The Report was in addition critical of imprecision relating to eligibility of expenditure.164 On a positive note, the Court of Auditors more recently concluded that ERDF ­co-financed tourism projects were in general effective.165

(H) Soft Law and Reform The preceding discussion reveals the complexity of the formal legal rules that apply in this area, and how they have changed over time. Legal rules such as the provisions on eligibility of expenditure,166 continue to be made to meet difficulties revealed by, for example, the Court of Auditors. Soft law has also been used to address difficulties in the functioning of the system, such as the administrative burdens placed on national administrations and the delays attendant on Commission approval. The system is based on a balance. It is premised on decentralization to the Member States of major responsibilities concerning project selection, management, evaluation, and control. The quid pro quo is the imposition of stricter controls on the Member States concerning financial management; automatic decommitment of appropriations (the n + 2 rule);167 financial corrections; and increased Commission power in relation to audit and the like. In 2003 the Commission engaged in discussion with the Member States on ways in which the 1999 regime could be made to work better.168 The changes proposed largely concerned interpretation of the existing legal rules rather than their modification. The  most interesting development from this discourse concerned what was termed the  ‘contract of confidence’. It emerged from the Member States’ rejection of the Commission proposal for an annual clearance of accounts regime modelled on the CAP. The Commission’s ‘contract of confidence’ was thus a fallback position, but ­interesting nonetheless. It was to be accommodated within the existing framework of legal rules. The ‘contract of confidence’ built on the decentralization that underpins the post1999 regime, and was based on three elements. There had to be: assurance that the national financial and control systems met the conditions in the EU regulations; a satisfactory national audit strategy; submission of reports through which the effective implementation of the audit strategy and certification of expenditure could be assessed. The operational consequences of a ‘contract of confidence’ were that the Commission 163  Ibid [66]. 164  Ibid [68]–[81]. 165  Court of Auditors, Special Report 6/11, Were ERDF Co-financed Tourism Projects Effective? 166  Commission Regulation (EC) 448/2004 of 10 March 2004 the eligibility of expenditure of operations co-financed by the Structural Funds [2004] OJ L72/66. 167  Reg 1083/2006 (n 85) Art 93; Reg 1303/2013 (n 94) Arts 86–88, 136. 168  On the Simplification, Clarification, Co-ordination and Flexible Management of the Structural Policies 2000–6, C(2003) 1255.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Shared Management

109

limited on-the-spot audit to verification of assurances provided by the contract, and a reduction in the time that it retained documentation on expenditure and checks. More recently, the Commission has been attempting to combat corruption that can affect the proper use of Structural Funding through ‘Integrity Pacts’, which are contracts between a contracting authority and economic operators bidding for public ­contracts, that they will abstain from corrupt practices and conduct a transparent procurement process. To ensure accountability and legitimacy, an Integrity Pact includes a separate contract with a civil society organization, which monitors compliance with these commitments.169 The Commission continues to reflect on the Structural Funds, as evidenced by the 2010 report on economic, social, and territorial cohesion.170 The report assesses the contribution of cohesion policy and the difficulties caused by the financial crisis. The Commission is clearly desirous of forging closer links between cohesion policy, the  broader Lisbon agenda, and employment policy. This is evident in the 2013 Regulation.171 It is at the same time seeking to steer a course between preserving the continuity of existing policy because of the transaction costs associated with significant change, while fine-tuning that policy in order to ensure that it is more efficacious.

6  Conclusions and Assessment A number of related conclusions can be drawn concerning the role of law in the administration of the CAP and the Structural Funds. First, sharing the administration of complex activities is difficult. This is a trite statement, but important nonetheless. It was natural that the administration of the CAP and the Structural Funds should be shared between the Commission and national bureaucracies. The difficulties of designing and operating such a system should, nonetheless, be borne firmly in mind. It involves the interrelationship between twenty-eight Member States and the Commission. The rules are administered by states with diverse bureaucratic traditions, more especially at the level of operational detail concerning certification, audit, and the like. It is equally important to remember that the other players are states. This renders administration of the regimes, and the degree of power possessed by the relevant players, rather different from the paradigm of national administration, even where this is undertaken within a federal structure. Secondly, the interplay between Member States and the EU in the design of the rules governing these two regimes was never going to be straightforward. This is in part because of the very nature of the subject matter covered by the CAP and the Structural 169 http://ec.europa.eu/regional_policy/en/policy/how/improving-investment/integrity-pacts/. 170  Conclusions of the fifth report on economic, social and territorial cohesion: the future of cohesion ­policy, COM(2010) 642 final; Results of the public consultation on the conclusions of the fifth report on economic, social and territorial cohesion, SEC(2011) 590 final. 171  Reg 1303/2013 (n 94) Arts 9–10.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

110

ADMINISTRATION AND LAW

Funds. The latter for example requires rules to be devised which delineate the ­objectives of regional policy, and the oversight and management of multiple individual projects across the entire EU. Moves towards simplification of the CAP legislation are to be welcomed,172 as are the reforms in the Structural Fund system post-2006.173 The relationship between Member States and the EU is also complex because of the tension between the collective interest and that of individual Member States adverted to ­earlier, and because of the tension between decentralization and effective supervision of regional policy. Thus, we have seen that the Structural Funds have been increasingly based on decentralization to the Member States. This has been motivated by subsidiarity and by the realization that the Commission does not possess the resources to administer the policy itself. It is, nonetheless, essential that effective supervision over the Funds be maintained, and this too involves responsibilities shared by the Member States and the Commission in the manner analysed earlier. Thirdly, legislative design is crucial for the successful delivery of these policies. It is certainly a necessary condition in this respect. This is so whether one has regard to the criteria for access to, for example, the Structural Funds, or whether one is concerned with management, oversight, audit, and the correction of irregularity. The rules contained in the EU legislation embody incentives for compliance, which may be more or less effective depending upon their content. While legislative design is a necessary ­condition for successful policy delivery, it is not sufficient. The history of the CAP and the Structural Funds provides important instances where the failings flowed not from inadequate rules, but from inadequacy in their implementation, whether this was due to failures of management systems, insufficient personnel, or personal shortcomings. The 2003 Report of the Court of Auditors bears testimony to the continuing difficulties with ensuring adherence to the rules applicable to the CAP and the Structural Funds.174 Finally, we should be careful about the ascription of blame when things go wrong. The tendency has been to lay the fault at the door of the EU, and more especially the Commission. This suits the Member States, and anti-European commentators. The Commission has been at fault through, for example, tolerating departures from existing rules, and by allocating insufficient personnel to the EAGGF section. To suggest that the entire malaise of the CAP, or that all difficulties with the Structural Funds, can be laid at the Commission’s door is a gross oversimplification. The EU is not some ­reified entity that desired the CAP in its present format. The existing regime is largely the result of Member State preferences expressed in the Treaty provisions and in the CAP legislation.175 172  Simplification of Agricultural Legislation, COM(2001) 48 final; Reg 1782/2003 (n 9); Reg 1290/2005 (n 23); Reg 73/2009 (n 10). 173 A New Partnership for Cohesion, Convergence, Competitiveness, Co-operation, Third Report on Economic and Social Cohesion (2004); Proposal for a Council Regulation Laying Down General Provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund, COM(2004) 492. 174  Court of Auditors, Annual Report Concerning the Financial Year 2003 [2004] OJ C293/01, [4.47]–[4.49], [5.66]–[5.69]. 175  Rieger (n 6) 180.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

5 Comitology 1 Introduction The discussion thus far has focused on centralized and shared administration as ways in which EU policy is delivered. This chapter focuses on Comitology and the making of secondary norms, which normally take the form of rules. This cuts across the ­previous analysis, in the sense that rulemaking is a feature of both direct and shared administration. The structure of the discussion is as follows. It begins with analysis of the problem presented by rulemaking, and the necessity for any polity, including the EU, to administer an area through secondary norms of a legislative nature. This is ­followed by an historical overview of rulemaking in the EU and the role of Comitology therein. The focus then shifts to detailed evaluation of the approach to rulemaking in the Lisbon Treaty.

2  Secondary Acts: The Nature of the Problem The issues raised by this chapter are complex. They take us into the realms of political science as well as law. We need to negotiate the difficult world of Comitology. It is all too easy to lose sight of the wood for the trees when traversing this landscape. It is, therefore, important to be clear from the outset about the nature of the problem. The problem, in essence, is how to make and legitimate secondary norms, which are often legislative in nature. The paradigm in democratic statal systems is for legislation to be enacted by the legislature. The primary legislation is then complemented by secondary norms, which flesh out the principles contained in the enabling statute. The reasons for this are well known. The legislature may not be able to foresee all ramifications of the legislation when the initial statute is made. It may well have ­neither the time, nor the expertise, to address all issues in the original legislation. The measures consequential to the original statute may have to be passed ­expe­ditiously, which precludes the use of procedures for primary legislation. These reasons gain added force when viewed in the context of much modern legislation, which is often framed in relatively open-textured terms, thereby necessitating greater specification through subsequent action. The problem of securing the legitimacy of rules is

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

112

ADMINISTRATION AND LAW

especially significant within the EU, given that it functions in many respects as a regulatory state.1 The secondary norms that are enacted will vary depending on the subject matter of the primary legislation, and the nature of the issue that requires elucidation. On some occasions, the secondary measure will be an individualized decision, made by the ­person to whom authority has been delegated by the primary legislation. In other instances, the secondary norm will be legislative in nature. It will take the form of a general rule that is intended to apply to all those falling within a certain factual situation. The terminology used to describe such norms varies as between legal systems. Some employ the language of delegated or secondary legislation; others prefer the appellation rulemaking; yet others use terminology such as directive. The method by which such measures are made also varies. The premise in some systems is that norms of a legislative nature should so far as possible be legitimated through oversight by the legislature, even if the procedures through which this is done differ from those used for primary legislation. This legitimation from the ‘top’ via the legislature may then be complemented by legitimation from the ‘bottom’ through participation in rulemaking by affected parties pursuant to a legal regime providing the framework for such participatory rights. The premise in other regimes is that the ­executive should have some autonomous power to make secondary rules of a ­legislative nature, the principal check lying with the courts via judicial review. It is important to be clear about the content of these secondary rules of a legislative nature. It is tempting to think in terms of a simple divide between the primary legislation that captures all points of principle, while secondary norms address insignificant points of detail, with the corollary that the latter can therefore be left to the executive relatively unencumbered by external constraint. This does not represent reality. There is no simple dichotomy between principle and detail. There is no ready equation between detail and absence of political controversy. Secondary norms may deal with uncontroversial detail. They may often address points of principle, or involve issues of political choice, which are every bit as controversial as those dealt with in the primary legislation. The extent to which issues of political choice can be delegated to ministers, agencies, and the like will be affected by the extent to which the legal system uses a non-­delegation doctrine. The vigorous deployment of such a doctrine, designed to ensure that the essential principles are laid down in the primary statute, will limit delegation of broad rulemaking powers to bodies external to the legislature. This does not alter the point being made here. The fact that a legal system takes the non-delegation doctrine ­seriously means that the courts will ensure that there are sufficient principles to guide the framing of the rules made by the executive or administration. It does not mean that the rules made pursuant to the primary legislation will thereby be self-executing, ­politically uncontroversial, or merely technical. The non-delegation doctrine does not, 1  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 ELJ 5.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

113

therefore, serve to ensure that the relationship between the primary legislation and rules made pursuant thereto functions in accord with some idealized transmission belt theory of administrative law. The preceding analysis is of course standard fare for those familiar with public law. This does not mean that national solutions can necessarily be cut and pasted to the EU. Nor does it mean that we should ignore the wealth of experience at national level. We should be mindful that the problem of ensuring the legitimacy of secondary rules is an endemic one for all systems, and we should be equally mindful that no system has  ‘cracked’ or ‘solved’ the problem perfectly. It is, therefore, little wonder that the issue still proves problematic within the EU. Moreover, the ‘solutions’ adopted within national systems necessarily reflect explicitly or implicitly a complex normative and pragmatic calculus. This is equally true in the EU. There are, however, structural factors in the EU that have made it especially difficult to devise a satisfactory solution to the dilemma of legitimating secondary rules of a legislative nature. This does not mean that the dilemma is incapable of resolution in this context. It does mean that we have to understand the reality of the functioning of the EU in order to make sure that any proposed solutions cohere with its modus operandi.

3  Comitology: A Short Guide to a Complex History There is a rich literature exploring Comitology in the EU.2 The present discussion will merely address the most significant staging posts in this historical development, in order to lay the foundations for the later analysis.

(A) The Ambiguous ‘Original Intent’ Most discussions concerning rulemaking in the EU begin with the birth of Comitology in the early 1960s. This will be considered later. It is, however, important to step back to the original Rome Treaty. This is particularly so because the Commission has 2  G della Cananea, ‘Cooperazione e integrazione nel sistema amministrativo delle comunità europee: la questione della “comitologia”’ (1990) Rivista Trimestrale di Diritto Pubblico 655; R Pedler and G Schaefer (eds), Shaping European Law and Policy: The Role of Committees and Comitology in the Political Process (European Institute of Public Administration, 1996); D Rometsch and W Wessels (eds), The European Union and Member States: Towards Institutional Fusion? (Manchester University Press, 1996); C Joerges, K-H Ladeur, and E Vos (eds), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations (Nomos, 1997); C Joerges and E Vos (eds), EU Committees: Social Regulation, Law and Politics (Hart, 1999); Third Report of the House of Lords Select Committee on European Legislation: Delegation of Powers to the Commission: Reforming Comitology (HL 23, 1999); E Vos, Institutional Frameworks of Community Health and Safety Legislation: Committees, Agencies and Private Bodies (Hart, 1999); M Andenas and A Turk (eds), Delegated Legislation and the Role of Committees in the EC (Kluwer Law International, 2000); M L Tufano, ‘La comitologia e le misure di esecuzione degli atti e delle politiche comunitarie’ (2008) Diritto dell’Unione Europea 149; C-F Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

114

ADMINISTRATION AND LAW

a­ rticulated a picture of the ‘Community method’ in which it characterizes itself as the ­executive, which should have sole or principal responsibility for the making of such secondary rules. This vision must, however, be justified, not merely stated. Such justification may be based on first principle, the argument being that this falls within the natural province of the executive, and the Commission is the executive for these purposes. This argument will be assessed later. The justification could alternatively be grounded in the original Treaty, or later amendments thereto. This argument will be considered here. It is not easy to discern the framers’ intent from the travaux préparatoires for the EEC Treaty. A close reading of the original Rome Treaty reveals that it was, however, ambiguous as to assignment of power over the making of secondary rules. The disposition of primary legislative power in the Rome Treaty was relatively clear. In most areas the maxim the ‘Commission proposes, the Council disposes’ held true. Legislative authority was divided between the Commission, exercising the right of ­legislative initiative, and the Council that had the right to vote. The Commission’s power was increased because unanimity was required for the Council to amend a Commission proposal, and because the Commission could alter the original proposal before the Council had acted.3 The Assembly had a bare right to be consulted, but only where the Treaty so stipulated. The disposition of power over the making of secondary rules was much less clear. The Treaty drew no formal distinction between primary and secondary norms. The same terminology of regulation and directive was applied to both. It was left to the reader to divine that a regulation was made pursuant to an earlier regulation or d ­ irective by its title and content. The Commission’s claim for authority over the making of secondary rules fastened on the wording of Article 155 EC, which provided that in order to ensure the proper functioning and development of the common market the  Commission should ‘exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter’. This was, however, a decidedly shaky basis for the assertion of authority or autonomy over the making of secondary ­legislative rules. This was in part because, as the ECJ pointed out,4 the provision was optional: it became operative when the Council conferred power on the Commission for the implementation of primary legislation. It was in part because of ambiguity as to the meaning of ‘implementation’. The word could refer to the ‘making’ of secondary rules, although this still left open the possibility of attaching conditions by the Council to the delegation of such power. It could, alternatively, refer to the ‘execution’ of the primary regulation or directive, connoting the need to take measures including individual decisions to ensure that the primary regulation or directive was properly applied.5

3  Art 149 EEC. 4  Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster and Berodt & Co [1970] 2 ECR 1161, [9]. 5 Case 16/88 Commission v Council [1989] ECR 3457, [11]–[13], for recognition of this ambiguity in ­relation to ‘implementation’ in the revised Art 145 EC post the SEA.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

115

The reality was that the Rome Treaty provided little by way of definitive guidance on the making of secondary rules, or the conditions that could be attached to this process. The early years of the Community’s existence should, therefore, be regarded as a working out of this issue, not as some upsetting of a carefully contrived institutional balance clearly delineated in the original Treaty.

(B) The Birth of Comitology Political reality may well be the mother of legal invention. Comitology was born in the context of the Common Agricultural Policy (CAP).6 It rapidly became clear that the CAP required detailed rules to respond to market circumstances. Recourse to primary legislation was often impracticable. The Member States were, however, wary of according the Commission a blank cheque over the making of implementing rules, especially given that power once delegated without encumbrance would generate legally binding rules without further Council oversight. This wariness was heightened by the tensions between the Council and the Commission in the mid-1960s, leading to the Luxembourg Crisis and subsequent Accords. The relative powers of the Council and Commission were fought out with de Gaulle and Hallstein staking out their visions of the two institutions. It would, nonetheless, be mistaken to see the birth of the committee system solely in terms of Council distrust of Commission. The committee system was also conceived as a way of dealing with ­disagreements between the Member States themselves. The Member States might agree on the general regulatory principles for a particular area, but disagree on the more detailed ramifications thereof. Involvement in the making of the implementing rules served, moreover, to facilitate interaction between national administrators who would be responsible for application of the rules at national level. The net result was the birth of the management committee procedure, embodied in the early agricultural regulations. The committee composed of national representatives with expertise in the relevant area would be involved with the Commission in the deliberations concerning the secondary regulations or directives. The secondary measure would be immediately applicable, subject to the caveat that it could be sent back to the Council if the committee voted against the draft measure. It was then open to the Council to take a different decision by qualified majority within one month.7 The committee methodology spread rapidly to other areas, and became a standard feature attached to the delegation of power to the Commission. It was not long before the more restrictive version, known as the regulatory committee procedure, was 6  C Bertram, ‘Decision-Making in the EEC: The Management Committee Procedure’ (1967–8) 5 CMLRev 246; P Schindler, ‘The Problems of Decision-Making by Way of the Management Committee Procedure in the EEC’ (1971) 8 CMLRev 184; Bergström (n 2) Ch 2. 7  See, eg, Council Regulation 19/62/EEC of 4 April 1962 on the progressive establishment of a common organisation of the market in cereals [1962] OJ 30/933, Arts 25–26.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

116

ADMINISTRATION AND LAW

c­ reated in the context of the emerging common commercial policy.8 On this version, if the committee failed to deliver an opinion, or if it gave an opinion contrary to the ­recommended measure, the Commission would have to submit the proposal to the Council, which could then act by qualified majority. There was, however, a safety net or filet, such that if the Council had not acted within three months of the measure being submitted to it, then the proposed provisions could be adopted by the Commission. The desire for greater political control reached its apotheosis in the ­modified version of the regulatory committee procedure, which embodied what became known as the contre-filet: the normal regulatory committee procedure applied, subject to the caveat that the Council could by simple majority prevent the Commission from acting even after the expiry of the prescribed period.

(C) Judicial Approval It is rare for any important institutional development to be unaffected by judicial ­scrutiny. The legitimacy of the management committee procedure came before the ECJ  in the Köster case.9 The German court asked whether the procedure attached to  the d ­ elegation of power to the Commission was consistent with the institutional balance established by the Treaty. The ECJ would have been familiar with the committee ­procedure, and also with the fact that it was working reasonably well. It was then unsurprising that it crafted its judgment to uphold the legitimacy of the management committee procedure. To have done otherwise would have created a constitutional crisis for EEC decision-making, or if that sounds too dramatic, it would most certainly have led to dire problems. The ECJ was unequivocal. It reasoned that Article 155 EC accorded the Council discretion to confer on the Commission implementing powers. It followed that the Council could determine the detailed rules to which the Commission was subject when exercising the powers conferred on it, and the management committee p ­ rocedure constituted just such a detailed rule. Moreover, because the committee could not take any decision, but merely sent the matter to the Council in the event of a negative committee opinion, it did not distort the institutional balance within the EEC.10 The judicial realization of the centrality of the committees was reaffirmed in Rey Soda,11 where the ECJ opined that the management committee procedure provided a ‘mechanism which allows the Council to give the Commission an appreciably wide power of implementation whilst reserving where necessary its own right to intervene’. Judicial support for the political status quo was evident again in Tedeschi,12 where the ECJ upheld the legality of the regulatory committee procedure. The ECJ accepted that 8  See, eg, Council Regulation 802/68/EEC of 27 June 1968 on the common definition of the concept of the origin of goods [1968] OJ L148/1, Arts 12–14. 9  Case 25/70 Köster (n 4). 10  Ibid [9]. 11  Case 23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECR 1279, [13]. 12  Case 5/77 Carlo Tedeschi v Denkavit Commerciale Srl [1977] ECR 1555.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

117

the committee procedure could have the effect of preventing the Commission from implementing the proposal that had been rejected by the Council. The Court concluded that this did not, however, paralyse the Commission, which could issue any other measure it considered appropriate.13 The relative brevity of the ECJ’s reasoning on this point attests to its difficulty: it was clear in reality that any other measure suggested by the Commission would also have to secure the approval of the regulatory committee. The ‘judicial realpolitik’ explanation offered by Bergström best captures the essence of the Court’s reasoning: ‘the Commission was obliged to focus its efforts on bringing about reconciliation between the different interests of the Member States’14 with the corollary that the Commission should normally accept a measure favoured by the qualified majority on the committee.

(D) The Single European Act and the First Comitology Decision Prior to the Single European Act 1986 (SEA), Comitology was based on an admixture of legislative choice, backed by judicial approval, set against the backdrop of Article 155 EC. It was the judicial interpretation of Article 155 that formed the cornerstone of the ECJ’s reasoning in cases such as Köster.15 The passage of the SEA shifted the Treaty foundation of Comitology to the new third indent of Article 145 EEC. This stipulated that the Council should confer on the Commission, in the acts adopted by the Council, powers for the implementation of the rules which the Council laid down, and that it could impose certain requirements in respect of the exercise of these powers. These procedures had to be consonant with principles and rules laid down in advance. The Council might reserve the right, in specific cases, to exercise directly implementing powers itself. The revised Article 145 certainly had some gains for the Commission, most notably because it embodied the general principle that the Council ‘should’ confer implementing power on the Commission, unless the Council provided reasons as to why it should reserve specific implementing power to itself.16 There is, however, equally little doubt that, viewed more generally, Article 145 was a defeat for more far-reaching Commission ambitions. The Commission entered the negotiations leading to the SEA with an explicit agenda for reform of Article 155: it sought implementing power without prior authorization from the Council, coupled with a strictly limited number of committee procedures, and a clear preference against regulatory committees.17 The result in the SEA was very different. There was no relevant reform of Article 155, Comitology was legitimated by the Treaty and this was done within Article 145, thereby emphasizing the centrality of the grant of implementing power from Council to Commission. 13  Ibid [55]. 14  Bergström (n 2) 149. 15  See n 9. 16  Case 16/88 (n 5) [10]; Case C-257/01 Commission v Council [2005] ECR I-345, [49]–[50]. 17  C-D Ehlermann, ‘Compétences d’exécution conférées á la Commission—La nouvelle decision-cadre du  Conseil’ (1988) 316 RMC 232, and ‘The Internal Market Following the Single European Act’ (1987) 24 CMLRev 361.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

118

ADMINISTRATION AND LAW

The Commission then turned its attention to the formulation of principles concerning committee procedures demanded by Article 145. There is little doubt that such reform was required, given that there were more than thirty variants of the committee procedures in play at the time of the SEA, and that considerable energy was spent during the legislative process wrangling about the precise procedure to be incorporated in the primary regulation or directive. The resultant Council Decision18 was certainly an improvement on the status quo ante, reducing the basic committee procedures to three, advisory, management, and regulatory, with two variants of both the management and regulatory committee procedures, plus safeguard committee procedures. The beneficial impact of the Decision was, however, qualified by the Council’s insistence that it should not be taken to affect the plethora of procedures applicable to existing committees, rejecting thereby the Commission’s hope that provision would be made to bring such committees into the new procedural format within a specified period of time. There was also disquiet within the Commission over the continued use of the contre-filet version of the regulatory procedure.

(E) The TEU, Amsterdam, and the Second Comitology Decision The European Parliament had expressed disquiet over Comitology from the very outset. The strength of its opposition grew commensurately with its increased status in the making of primary regulations and directives. The reason for this is not hard to divine. For nearly the first three decades of the Community’s existence the European Parliament had been very much on the side lines of the legislative process, with only a bare right to be consulted where the Treaty so provided. It felt, even at this stage, that the committee procedure limited its capacity to exercise its supervisory powers over the Commission, but it could not readily claim that its legislative powers were ­compromised by Comitology in areas where it had no role in the legislative process. The SEA began the transformation of the legislative process through the creation of the cooperation procedure, giving the European Parliament a stronger role in the making of regulations and directives, more especially since it applied to important areas such as the passage of harmonization measures to attain the internal market. This changed the manner in which primary regulations and directives were enacted. The Commission and Council could no longer ignore the European Parliament, or treat its expression of preferences with scant regard. The TEU took the process further, with the creation of the co-decision procedure and this was followed by expansion of the areas to which the procedure applied, coupled with modification of the procedure so as to further strengthen the role of the European Parliament therein. The European Parliament’s increasingly vocal opposition to Comitology, and more especially to the regulatory committee procedure, was readily explicable against this backdrop. It had fought long and hard to attain a more co-equal role in the making 18  Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission [1987] OJ L197/33.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

119

of primary regulations and directives. These gains were, however, undermined by its exclusion from the making of secondary regulations and directives, which were still the preserve of the Commission and Council through Comitology. The tension was heightened by the ‘normality’ of Comitology: most important regulations and ­directives enacted pursuant to co-decision contained a committee procedure, often regulatory, which governed the making of implementing regulations. The European Parliament’s success in securing the application of co-decision to an ever increased range of ­primary regulations and directives was therefore tempered by its exclusion from the ­making of the more detailed secondary rules, which would often entail important issues of principle or political choice. The European Parliament fought the battle against Comitology on the legal and political front.19 It argued consistently that Article 145 could not be regarded as the basis for Comitology in respect of regulations or directives adopted pursuant to codecision. Article 145 could only be used to legitimate the imposition of committee procedures, so the European Parliament contended, for acts adopted by the Council alone. The Council, not surprisingly, rejected this view.20 It drew comfort from the ECJ which held, albeit without detailed consideration, that acts of the Council covered acts undertaken jointly with the European Parliament pursuant to co-decision, as well as acts made by the Council alone.21 The ECJ’s jurisprudence further served to empower the Council and Commission at the expense of the European Parliament by adopting a broad concept of implementation. It is true that the ECJ insisted that the primary regulation or directive should embody the ‘essential elements’ of the matter to be dealt with. However it interpreted this relatively loosely, thereby allowing a broad range of implementing measures to be adopted through regulations according to Comitology procedures from which the European Parliament was effectively excluded.22 The European Parliament continued to contest the application of the committee procedures through the political process,23 using its powers under co-decision to propose amendment to primary regulations and directives containing Comitology and even blocking a measure for this reason. The process of legislative attrition was wearing for all involved and hostilities were temporarily lessened through the conclusion of a ‘Modus Vivendi’ in 1994.24 This provided that the relevant committee of the European 19  K Bradley, ‘Maintaining the Balance: The Role of the Court of Justice in Defining the Institutional Position of the European Parliament’ (1987) 24 CMLRev 41; K Bradley, ‘Comitology and the Law: Through a Glass Darkly’ (1992) 29 CMLRev 693; K Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere?’ (1997) 3 ELJ 230. 20  J-P Jacque, ‘Implementing Powers and Comitology’ in Joerges and Vos (n 2) Ch 4. 21  Case C-259/95 European Parliament v Council [1997] ECR I-5303, [26]; Case C-378/00 Commission v European Parliament and Council [2003] ECR I-937, [40]. 22  Case C-156/93 European Parliament v Commission [1995] ECR I-2019, [18]–[22]; Case C-417/93 European Parliament v Council [1995] ECR I-1185, [30]. 23  R Corbett, The European Parliament’s Role in Closer EU Integration (Macmillan, 1998) 347–8. 24  Modus Vivendi of 20 December 1994 between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted in accordance with the procedure laid down in Article 189b of the EC Treaty [1996] OJ C102/1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

120

ADMINISTRATION AND LAW

Parliament would be sent general draft implementing acts at the same time as the ­committee set up by the basic act. Moreover, the Council undertook not to adopt a draft general act referred to it in accordance with the implementing procedure without first informing the European Parliament and obtaining its opinion. The Intergovernmental Conference process leading to the Treaty of Amsterdam was dominated by concerns relating to the legitimacy of the EU and its decision-making processes.25 Notwithstanding this the Treaty of Amsterdam continued the status quo in relation to the making of secondary rules. Article 145 was not materially altered save for being renumbered Article 202 EC. The Treaty did, however, contain Declaration 31 requiring the Commission to submit a proposal for a revised Comitology Decision by 1998. The passage of this Decision was difficult to say the least,26 and was finally adopted in 1999.27 The management and regulatory committee procedures were simplified to some degree.28 There were efforts to make the system more accessible to the public.29 The European Parliament was accorded a greater role in the making of secondary rules than hitherto. It was given power concerning rules made pursuant to the regulatory procedure;30 and more generally power to indicate by resolution that draft implementing measures, which had been submitted to a committee pursuant to a basic instrument adopted by co-decision, would exceed the implementing powers in that instrument.31 The European Parliament was also given a right to be informed by the Commission of committee proceedings, receive committee agendas, voting records, and draft measures submitted to the committees for implementation of primary law made under the co-decision procedure.32 In an agreement made between the European Parliament and the Commission,33 the latter stated that it would also forward to the European Parliament, at its request, specific draft measures for implementing basic instruments even if they were not adopted under co-decision, where they were of particular ­importance to the European Parliament. The European Parliament could, moreover, request access to minutes of committee meetings.34 The basic premise of Article 202 EC and Article 1 of the 1999 Comitology Decision was that the Council should grant implementing power to the Commission, subject to the caveat that the Council could reserve implementing power to itself in certain 25  P Craig, ‘Democracy and Rulemaking within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105. 26  Bergström (n 2) 249–64. 27  Council Decision 99/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23; K Lenaerts and A Verhoeven, ‘Towards a Legal Framework for Executive Rule-Making in the EU? The Contribution of the New Comitology Decision’ (2000) 37 CMLRev 645. 28  Dec 99/468 (n 27) Arts 4–5. 29  Ibid Art 7; G Brandsma, D Curtin, and A Meijer, ‘How Transparent are EU “Comitology” Committees?’ (2008) 14 ELJ 819. 30  Ibid Art 5(5). 31  Ibid Art 8. 32  Ibid Art 7(3). 33  Agreement between the European Parliament and the Commission on procedures for implementing Council Decision 99/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers by the Commission [2000] OJ 2000 L256/19, [2]. 34  Case T-188/97 Rothmans v Commission [1999] ECR II-2463.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

121

specific cases. The ECJ was willing to review Commission claims that it should have been given implementing power where the Council reserved that power for itself. The Court reviewed the reasons given by the Council. The Commission, nonetheless, faced an uphill struggle on this issue. Thus in one case the ECJ acknowledged that the r­ easons given by the Council were ‘general and laconic’, but the Court nonetheless concluded that when they were assessed in their context they showed the rationale for reservation of implementing power to the Council.35 The ECJ has, however, been willing to annul reservation of implementing power by the Council.36 The ECJ was also willing to review the choice as between management and regulatory procedures in the 1999 Comitology Decision. It acknowledged that the criteria in Article 2 of this Decision were not formally binding, but held that where the Council and European Parliament sought to depart from those criteria they had to provide reasons for doing so. The ECJ concluded that such reasons had not been given, that the imposition of the regulatory procedure was not therefore justified, and annulled the contested measure in this respect.37

(F) The Nice Treaty and Amendment to the Second Comitology Decision The complex history of Comitology continued after the Nice Treaty. The Commission accepted the force of the European Parliament’s objection to the existing Comitology Decision in circumstances where co-decision applied. This led to amendment to the Second Comitology Decision.38 A new Article 5a of Decision 1999/468 modified the regulatory procedure for basic instruments adopted under Article 251 EC. Under the ‘regulatory procedure with scrutiny’ the Commission continued to be assisted by a committee of national representatives, but the European Parliament was afforded a greater role in the passage of such implementing measures than hitherto.

4  Comitology: Academic Opinion Pre-Nice There was much academic discussion of Comitology prior to the Lisbon Treaty. It is important to understand this literature, since it provides the backdrop to the Lisbon reforms. The ensuing analysis will not attempt to traverse all such views.39 It will rather consider the two dominant approaches to Comitology.40 35  Case C-257/01 (n 16) [53]. 36  Case C-133/06 European Parliament v Council [2008] ECR I-3189. 37  Case C-378/00 (n 21); Case C-122/04 Commission v European Parliament and Council [2006] ECR I-2001. 38 Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the ­procedures for the exercise of implementing powers by the Commission [2006] OJ L200/11. 39  W Wessels, ‘Comitology: Fusion in Action. Politico-Administrative Trends in the EU System’ (1998) 5 JEPP 209. 40  There have been empirical studies to test the rival hypotheses, M Pollack, The Engines of Integration: Delegation, Agency, and Agenda Setting in the EU (Oxford University Press, 2003); F Franchino, ‘Control of

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

122

ADMINISTRATION AND LAW

(A) Rational Choice Rational choice institutionalists regard Comitology as exemplifying the principal/ agent thesis. Member State principals delegate four functions to supranational agents: monitoring compliance; the resolution of incomplete contracts among principals; the adoption of regulations in areas where the principals would be biased or uninformed; and setting the legislative agenda so as to avoid the ‘endless cycling’ that would otherwise result if this power were exercised by the principals themselves.41 The principals must, however, ensure insofar as possible that the agents do not stray from the preferences of the principals themselves. Thus, on this view Comitology constitutes a control mechanism whereby the Member State principals exert control over supranational agents. The Member State principals recognized the need for delegation of power over secondary norms to the supranational agent, the Commission, but did not wish to give it a blank cheque, hence the creation of committees through which Member State preferences could be expressed, with the threat of recourse to the Council if agreement could not be reached with the Commission. It is assumed that the representatives on Comitology echo their Member State exogenous preferences and bargain within the committees.42 The variants of committee procedure reflect the Member States’ ability to impose the degree of control that best suit their interests. The advisory committee procedure thus places a high premium on getting things done, and a correspondingly low degree of Member State control, while at the other end of the scale the regulatory committee procedure, especially the contre-filet version thereof, places prime ­importance on Member State control even at the ultimate cost of preventing the emergence of an EU rule on the issue. The assumption is that decision-making within the committee system will operate similarly to that in the Council, with a strong emphasis on interstate bargain, and Member State preferences being regarded as ‘givens’ in this process.

(B) Deliberative Supranationalism Joerges and Neyer43 contend that Comitology is best viewed in terms of deliberative supranationalism, and that this is more accurate than the contending views, which see Comitology either in terms of rational choice bargain, or in terms of supranational administration.

the Commission’s Executive Functions: Uncertainty, Conflict and Decision Rules’ (2000) 1 European Union Politics 63; M Pollack, ‘Control Mechanism or Deliberative Democracy: Two Images of Comitology’ (2003) 36 Comparative Political Studies 125. 41  Pollack (n 40) 6. 42  Ibid Ch 2. 43  C Joerges and J Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalization of Comitology’ (1997) 3 ELJ 273; J Neyer, ‘The Comitology Challenge to Analytical Integration Theory’ in Joerges and Vos (n 2) Ch 12; C Joerges, ‘Good Governance through Comitology?’ in Joerges and Vos (n 2) Ch 17.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

123

The rational choice view is premised, as seen earlier, on the Member States’ awareness of the need to delegate power to the Commission to achieve Treaty imperatives, combined with the desire to retain control over the resultant rules. The supranational view regards the EU institutions as dominant within Comitology,44 because of the Commission’s control over information, committee agendas, its role as chair of committees, and the limited time that national delegations have to respond to Commission proposals. Joerges and Neyer regard both the rational choice intergovernmental view and the  supranational view as too extreme.45 They argue that rulemaking pursuant to Comitology should be properly perceived as a deliberative discourse. They contend that governments might be unaware of their own preferences on a particular issue, and the national delegates on the committees will often regard themselves as part of a team dealing with a transnational problem. The national representatives shift to becoming representatives of a ‘Europeanised interadministrative discourse that is characterized by mutual learning and by an understanding of each others’ difficulties in the implementation of specific solutions’.46 Comitology is portrayed as a network of European and national actors, with the Commission acting as coordinator.47 The national ­participants in the deliberative process are willing to call their own preferences into question in searching for a Community solution.48 (i)  Deliberative Supranationalism and Consensual Deliberation The central kernel of the deliberative supranationalism thesis has some force. The national representatives on the committees are usually bureaucrats or technocrats with experience in the relevant area. They have not normally spent their lives as politicians. It should not, therefore, come as a surprise that they bring a deliberative perspective to the issues, nor that they are willing to call their preferences into question. We should, nonetheless, be mindful of the constraints on consensual deliberation. It is true that Comitology committees rarely exercised their formal powers, with the result that it was uncommon for a draft implementing regulation to be sent to the Council.49 This, however, tells one relatively little concerning the extent to which state interests constrained the content of the relevant measure, in the same way that the  scarcity in use of the Luxembourg veto in the Council tells one only so much about  intergovernmental influences on decision-making during the relevant period. Comitology discussion in the shadow of formal powers vested in Member State representatives can constrain the proposal placed on the table,50 just as Council decisionmaking could be shaped by the shadow of the veto. There was, moreover, literature that challenged the notion of consensual ­deliberation and expressed concern about the Comitology decision-making process. Thus Wessels 44  Neyer (n 43) 222–3. 45  Ibid 224. 46  Ibid 228. 47  Joerges (n 43) 318. 48  Ibid 315. 49  Wessels (n 39) 224–5; R Dehousse, ‘Comitology: Who Watches the Watchmen?’ (2003) 10 JEPP 798, 800. 50  Wessels (n 39) 225.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

124

ADMINISTRATION AND LAW

acknowledged that Comitology was characterized by camaraderie, but took the view that the ‘closed clubs with their technical language, their intrinsic procedures and informal rules are not an example of deliberative democracy, but an immunisation against outside interference’.51 He argued that there was a propensity to transform political issues into administrative problems, which had undesirable consequences for the role of the state. Harlow voiced analogous concerns that committees could acquire a life of their own.52 Dehousse recognized that the shift from ‘primary’ legislative activity towards secondary rulemaking meant that a ‘growing number of salient political issues are likely to arise in the post-legislative phase, be it in rule-making or in the concrete application of Community rules’.53 Weiler acknowledged the importance of Joerges and Neyer’s insights concerning the deliberative style of Comitology, and the search for solutions that transcended purely national interests.54 He was, nonetheless, troubled by the decisional autonomy of Comitology, by the fact that the committees exercised ‘considerable political and policy discretion without adequate political accountability’,55 and that committee members might be unaware of ‘the profound political and moral choices involved in their determinations and of their shared ­biases’.56 We should, moreover, not forget when evaluating the picture of consensual ­deliberation that the Commission sought for twenty years to weaken the Comitology constraints and that its schema was embodied in the Lisbon Treaty. It will be examined later. This does not sit easily with a picture of Comitology in which the preferences of national representatives lacked constraining impact on the measures drafted by the Commission. If the national representatives did not cramp the Commission’s ‘­executive autonomy’ the motivation for the Commission to change the schema would not be readily ­explicable. (ii)  Deliberative Supranationalism and the European Parliament Joerges and Neyer were sceptical about involvement of the European Parliament in delegated rulemaking. The scepticism was part conceptual and part practical. The conceptual argument focused on the ‘no demos’ thesis. It was argued that the EU’s principal task was to cope with transnational economic interdependence, and was not about organizing the self-governance of a European demos that Neyer did not believe to exist.57 This argument was problematic. It was based on the assumption that there was ‘no demos’ within the EU, and that a demos of the kind that existed within Member States was a condition precedent for thinking about ­democratic decision-making in the EU. If the argument as put were true it would 51  W Wessels, ‘Comitology as a Research Subject: A New Legitimacy Mix?’ in Joerges and Vos (n 2) 265. 52  C Harlow, Accountability in the European Union (Oxford University Press, 2002) 175. 53  R Dehousse, ‘Towards a Regulation of Transnational Governance? Citizen’s Rights and the Reform of Comitology Procedures’ in Joerges and Vos (n 2) 114. 54  J Weiler, ‘Epilogue: “Comitology” as Revolution—Infranationalism, Constitutionalism and Democracy’ in Joerges and Vos (n 2) 347. 55  Ibid 345. 56  Ibid 348. 57  Neyer (n 43) 230.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

125

­ ndermine the European Parliament’s claims to partake in the passage of primary u regulations or directives. Yet it cannot seriously be questioned that the advances made by the European Parliament to a more co-equal role in the primary legislative process through the creation and expansion of co-decision are warranted on democratic grounds. Joerges articulated the pragmatic argument. He accepted in principle the European Parliament’s claim that the extension of its rights in the primary legislative process should be mirrored by an extended role in secondary rulemaking, but contended that it was not practicable because the European Parliament committees did not have sufficient resources to engage in supervision of Comitology committees.58 Joerges was clearly right to point to the practical problems of European Parliament involvement in the making of secondary rules. The ‘bottom line’ is nonetheless that secondary rules may well entail political choice and controversy every bit as real as in the case of primary legislation. We should, therefore, hesitate long and hard before concluding that a co-equal partner in the making of the primary legislation should have no substantive input into the making of secondary norms, more especially if we wish to sustain the claim that the overall process comports with an ideal of deliberative supranationalism. We shall return to this issue when considering the Lisbon reforms. (iii)  Deliberative Supranationalism and Participatory Rights The relationship between deliberation through committees and participation by interested individuals is important. Joerges acknowledged that in areas such as risk regulation there were aspects of risk assessment which, ‘in view of their practical normative content, ought not to be delegated to expert bodies no matter how technically competent they may be’.59 Joerges did not, however, favour extended participation, at least not in the context of risk regulation. This was partly because the ‘correctness of risk decisions cannot be guaranteed by unmediated recourse to interests or their negotiation’.60 It was partly because the identification of ‘interests’ at the European level to whom participation rights would be extended was felt to be inconceivable. It was partly also because he felt that the national representatives on the committees could take all such concerns into account.61 This argument was presented forcefully, but was problematic. There is an abundance of literature that attests to the fact that risk regulation is not purely scientific, but involves social and political choice in circumstances where the scientific evidence may

58  Joerges (n 43) 327. 59  Joerges (n 43) 334; Joerges (n 60) 147. 60  Joerges (n 43) 334; C Joerges, ‘Deliberative Supranationalism—Two Defences’ (2002) 8 ELJ 133, 145. 61  Joerges (n 43) 334; Joerges (n 60) 150–1. Joerges, however, appeared to favour extension of participatory rights in the context of technical standardization, as opposed to risk regulation (n 43) 335.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

126

ADMINISTRATION AND LAW

be equivocal.62 The extension of participatory rights cannot therefore be rejected on the ground that these are matters of pure science. Technical expertise cannot readily be disaggregated from social and political choice. Insofar as it is possible to separate ‘pure expertise’, Comitology was deficient in limiting the provision of that expertise to the national representatives on the relevant committee, providing no ready mechanism whereby other interest groups that might have expert knowledge could present their arguments. The argument for such participatory rights is not premised on the assumption that risk regulation should be determined by the ‘unmediated recourse’ to such interests. The issue is whether such interests should have input into the rulemaking process, not that they should be determinative. Nor is the argument for such rights premised on the assumption that there are identifiable representatives of European interests ‘out there’. It is based rather on the plurality of interests with a strong concern about the subject matter of the regulation, and such interests may well have expertise in the relevant area. The idea that these concerns can adequately be captured through feedback links to Member States operating via Comitology is based on an idealized vision of the degree to which national representatives on committees are informed of and represent the plethora of views within their home state. It is belied by the call for increased ­participation rights in rulemaking within national polities.63 The ideal of deliberative supranationalism which limits or excludes input from either the European Parliament or affected interests must be counted as an attenuated one. The ‘distance’ between the concept of deliberative supranationalism cast principally in terms of technocratic interaction, and the broader meaning accorded to ­deliberative democracy in the literature has been a more general focus of criticism of the thesis advanced by Joerges and Neyer.64

5  Comitology: Lisbon Treaty (A) Treaty Reform: Commission Objectives The Commission long desired to loosen the constraints imposed by Comitology and to have greater autonomy over the passage of secondary rules. Its strategy dating back at least to the Intergovernmental Conference leading to the Maastricht Treaty65 was to 62  S Jasanoff, ‘Science and the Limits of Administrative Rule Making: Lessons from the OSHA Cancer Policy’ (1982) 20 Osgoode Hall LJ 536; S Jasanoff, The Fifth Branch: Science Advisers as Policy Makers (Harvard University Press, 1990); S Jasanoff, Science at the Bar: Law, Science, and Technology in America (Harvard University Press, 1995); U Beck, The Risk Society (Sage, 1992); W Leiss and C Chociolko (eds), Risk and Responsibility (McGill-Queen’s University Press, 1992). 63  P Craig, Administrative Law (Sweet & Maxwell, 8th edn, 2015) Ch 15; T Ziamou, Rulemaking, Participation and the Limits of Public Law in the USA and Europe (Ashgate, 2001). 64  Joerges (n 60) for a response. 65  Bergström (n 2) 212–17.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

127

propose a hierarchy of norms for the EU, with a distinction being drawn between primary laws, and secondary acts, the intent being to ensure that the Commission had greater autonomy over the passage of implementing measures. The nub of this strategy was to accept constraints over secondary acts through the need to specify essential principles within the primary laws, combined with the possibility of recall by the Council or European Parliament if they believed that the secondary act made by the Commission exceeded the powers granted, with the hope that the Member States might dismantle the Comitology regime, at least insofar as it entailed management and regulatory committees. This was apparent from a series of high-profile Commission communications.66 It was an explicit feature of the White Paper on European Governance.67 The key to the White Paper was the Commission’s conception of the ‘Community method’,68 with the Commission representing the general interest and the Council and the European Parliament as the joint legislature, representing the Member States and national citizens respectively. This was in itself unexceptionable. It was the implications that the Commission drew from it that are interesting in the light of subsequent developments. It was, said the Commission, necessary to revitalize the Community method.69 The Council and the European Parliament should limit their involvement in primary Community legislation to defining the essential elements.70 This legislation would define the conditions and limits within which the Commission performed its executive role. It would, in the Commission’s view, make it possible to do away with the Comitology committees, at least so far as they had the powers presently exercised by  management and regulatory committees. There would instead be a simple legal mechanism allowing the Council and European Parliament to control the actions of  the Commission against the principles adopted in the legislation. The possibility of  enhancing the Commission’s control over delegated regulations by abolishing or amending the Comitology procedure was raised again by the Working Group on Simplification.71

(B) The Lisbon Treaty: Legislative, Delegated, and Implementing Acts The Constitutional Treaty introduced a hierarchy of norms, which distinguished between different categories of legal act, and used terms such as ‘law’, ‘framework law’, and the like.72 The European Council of June 2007, which initiated the process leading 66  European Governance, COM(2001) 428 final, [20]–[29]; Institutional Architecture, COM(2002) 728 final, [1.2], [1.3.4]; Proposal for a Council Decision Amending Decision 1999/468/EC Laying Down the Procedures for the Exercise of Implementing Powers Conferred on the Commission, COM(2002) 719 final, 2; Final Report of Working Group IX on Simplification, CONV 424/02, Brussels, 29 November 2002, 12. 67  COM(2001) 428 final. For critical comment, see the Symposium: Responses to the European Commission’s White Paper on Governance, https://www.jeanmonnetprogram.org/papers. 68  COM(2001) 428 final, 8. 69  Ibid 29. 70  Ibid 20. 71  Working Group IX (n 66) 12. 72  Arts I-33–39 CT.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

128

ADMINISTRATION AND LAW

to the Lisbon Treaty, decided that the terms ‘law’, and ‘framework law’ should be dropped. The rationale given was that the Lisbon Treaty was not to have a ‘constitutional character’,73 although it is not readily apparent why the terminology of ‘law’ or  ‘framework law’ should be assumed to have such a character. It was decided to retain  the existing terminology of regulations, directives, and decisions. A version of  the hierarchy of norms was nonetheless preserved in the Lisbon Treaty, which distinguishes between legislative acts, non-legislative acts of general application, and implementing acts.74 Article 289 TFEU defines a legislative act as one adopted in accord with a legislative  procedure, either the ordinary legislative procedure, which is the successor to ­co-decision, or a special legislative procedure. Article 290 TFEU deals with what are now termed non-legislative acts of general application, whereby power to adopt such acts is delegated to the Commission by a legislative act. Such non-legislative acts can supplement or amend certain non-essential elements of the legislative act, but the legislative act must define the objectives, content, scope, and duration of the delegation of power. The essential elements of an area cannot be delegated. The legislative act must specify the conditions to which the delegation is subject. Such conditions may allow the European Parliament or the Council to revoke the delegation; and/or enable the European Parliament or the Council to veto the delegated act within a specified period of time. Acts made pursuant to Article 290 TFEU are known as delegated acts.75 The third category in the hierarchy of norms, implementing acts, is dealt with in Article 291 TFEU. Member States must adopt all measures of national law necessary to implement legally binding Union acts. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in certain cases on the Council. It is for the European Parliament and Council to lay down in advance the rules and general principles concerning ­mechanisms for control by Member States of the Commission’s exercise of implementing powers.

(C) Delegated Acts: Demise of Comitology The Lisbon Treaty is predicated on the distinction between legislative and non-­ legislative acts, but that distinction is nonetheless formal in the following sense. Legislative acts are defined as those enacted via a legislative procedure, either ordinary or special; non-legislative acts are those that are not enacted in this manner.

73  Brussels European Council, 21–22 June 2007, Annex 1, [3]. 74  C-F Bergström and D Ritleng (eds), Rulemaking by the European Commission: The New System for the Delegation of Powers (Oxford University Press, 2016). 75  Art 290(3) TFEU.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

129

This should not, however, mask the fact that delegated acts will often be legislative in nature, in the sense that they will lay down binding provisions of general application to govern a certain situation. This is implicitly recognized in the nomenclature used in  the Lisbon Treaty, which speaks of delegated acts having ‘general application’. This accords with the use made of ‘secondary regulations’ prior to the Lisbon Treaty. Such regulations were commonly used to flesh out the meaning, scope, or interpret­ ation of provisions in the ‘parent regulation’ in a manner analogous to the use made of ­secondary legislation or rulemaking in national legal systems. The Working Group in the Convention on the Future of Europe was more honest in recognizing these acts as a new category of legislation.76 It is possible to construct an argument for the survival of Comitology in relation to delegated acts,77 but the contrary interpretation best fits the wording of Article 290 TFEU. This is because Article 290 TFEU makes no mention of such committees and because the Comitology procedures would create an imbalance between the Council and the European Parliament within Article 290, which is formally built on institutional parity between the two bodies in relation to control over delegated acts. The relevant institutional reports confirm this interpretation. Thus the Report of the European Parliament’s Committee of Legal Affairs expressed its unequivocal ­opposition to continuation of Comitology committees in the post-Lisbon world in relation to Article 290.78 The Commission’s Communication to the Council concerning Articles 290 and 291 in December 2009 was premised on the demise of management and regulatory committees in relation to Article 290.79 The Commission, without mentioning the previous committee regime, accepted that it would systematically consult with national experts in the making of delegated acts, but stressed that the experts would have a ‘consultative rather than an institutional role in the decision-making procedure’.80 When the consultations were concluded the experts would merely be informed of the Commission’s conclusions and how it intended to proceed.81 The Council for its part suddenly woke up to the imminent demise of the old Comitology regime and responded to the Commission document by stressing the importance it attached to consultation with national experts,82 which should be undertaken in time to allow for meaningful input by such experts. The legal and political reality under Article 290 is therefore that formal management and regulatory committees cease to exist. 76  Final Report of Working Group IX (n 66) 8. 77  P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010) 58–9. 78  Committee on Legal Affairs, On the Power of Legislative Delegation, A-7 0110/2010, Rapporteur J Szájer, 11–12. 79  Implementation of Article 290 of the Treaty on the Functioning of the European Union, COM(2009) 673 final. 80  Ibid [4.2]. 81  Ibid [4.2]. 82  Council 17477/09, Implementation of the Treaty of Lisbon, Article 290, Article 291, Brussels, 11 December 2009.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

130

ADMINISTRATION AND LAW

However, the Council’s desire for assistance from national experts in relation to ­ elegated acts led rapidly to the Common Understanding 2011.83 The Commission d was charged when preparing delegated acts with ensuring ‘a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council and carry out appropriate and transparent consultations well in advance, including at expert level’.84 The Common Understanding included an annex containing a standard clause to be included in the recital to legislative acts that delegate power to the Commission, in which the substance of the preceding obligation was iterated, which occurs as a matter of course. The Common Understanding was revised in 2016, and strengthened the role of experts.85 The revised schema is as follows. When preparing delegated acts, the Commission must ensure a timely and simultaneous transmission of all documents, including the draft acts, to the European Parliament and the Council at the same time as to Member States’ experts.86 The Commission must consult experts designated by each Member State in the preparation of draft delegated acts. The Member States’ experts shall be consulted in a timely manner on each draft delegated act prepared by the Commission services. The draft delegated acts shall be shared with the Member States’ experts. The consultations shall take place via existing expert groups, or via ad hoc meetings with experts from the Member States. It is for the Member States to decide which experts are to participate. National experts must be provided with the draft delegated acts, the draft agenda, and any other relevant documents in sufficient time to prepare.87 Where they consider it ­necessary, the European Parliament and the Council may each send experts to meetings of the Commission expert groups dealing with the preparation of delegated acts to which Member States’ experts are invited. To that end, the European Parliament and the Council receive the planning for the following months and invitations for all experts’ meetings.88 Preparation and drawing-up of delegated acts may also include ­consultations with stakeholders.89 At the end of any meeting with national experts, the Commission shall state the conclusions they have drawn from the discussions, including how they will take the experts’ views into consideration and how they intend to proceed.90 Where the ­material content of a draft delegated act is changed in any way, it is incumbent on the Commission to give Member States’ experts the opportunity to react to the amended version of the draft delegated act.91 There is, moreover, an obligation to include a summary of the  consultation process in the explanatory memorandum accompanying the delegated act.92

83  Common Understanding on Delegated Acts, Council 8753/1/11, Brussels, 14 April 2011. 84  Ibid [4]. 85  Interinstitutional Agreement of 13 April 2016 on Better Lawmaking [2016] OJ L123/1. 86  Ibid Annex [10]. 87  Ibid Annex [4]. 88  Ibid Annex [11]. 89  Ibid Annex [6]. 92  Ibid Annex [8]. 90  Ibid Annex [5]. 91  Ibid Annex [7].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

131

The 2011 Common Understanding was given formal imprimatur by its repeated inclusion in the recitals to legislation. It reinvented the wheel insofar as it brought back  some advisory committees to provide the informational resource that is especially useful in deciding whether to exercise a veto power. These committees do not have the formal powers of their management and regulatory Comitology predecessors, although whether their input into Council decision-making is markedly different in substance is difficult to determine. The 2016 version of the Common Understanding is now customarily referred to in the preambles to delegated regulations. It has strengthened the position of national expert groups, and opened the possibility that existing Comitology expert committees used under Article 291 could be used in relation to Article 290. The paradox is that the Lisbon reforms were intended to simplify the decision-­ making process, including the role of committees therein. The political reality is that in the immediate aftermath of the Lisbon Treaty, we had the new Comitology regime within Article 291, coupled with the more shadowy world of advisory committees created pursuant to the 2011 Common Understanding operating within Article 290, the membership and proceedings of which were not readily available. The 2016 Common Understanding has improved matters in this respect by mandating the Commission to keep summaries of the consultations. There is then the further paradox that the greater the formality introduced for the Article 290 committees by the 2016 Common Understanding, the smaller the difference de facto between the decision-making process for delegated and implementing acts, more especially if the ability to use ‘existing expert groups’ leads to Article 291 Comitology committees fulfilling the role of expert advisers within Article 290. We should, moreover, note a further twist in the post-Lisbon legal and political landscape.93 The old-style Comitology committees may well have gone, but in some areas the ‘solution’ has been to create new agencies and to accord the Member States significant decisional autonomy on such bodies. This has been the solution adopted for the new financial supervisory authorities: the European Securities and Markets Authority (ESMA);94 the European Banking Authority (EBA);95 the European Insurance and Occupational Pensions Authority (EIOPA).96 They are discussed in detail in the next chapter. Suffice it to say for the present that Member States dominate the organizational 93  P Craig, ‘Comitology, Rulemaking and the Lisbon Settlement: Tensions and Strains’ in Bergström and Ritleng (n 74) 173–202. 94  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84; https://www.esma.europa.eu/. 95  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12. 96  Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) [2010] OJ L331/48.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

132

ADMINISTRATION AND LAW

structure of these authorities, which are given the power to make delegated regulations pursuant to Article 290, subject to Commission approval of the draft and the possibility of veto by Council and the European Parliament. The reality is that, insofar as the Lisbon reforms were intended to produce parity between the Council and the European Parliament in relation to delegated acts, this is undermined by the decision-making structure on these new agencies. It is true that the representatives must be independent and represent their state rather than the Council. This does not alter the fact that national interests predominate in the formulation of the detailed rules to govern the relevant area.

(D) Delegated Acts: Inter-Institutional Balance of Power It is, therefore, important to consider the implications of the demise of Comitology in relation to delegated acts on the inter-institutional balance of power. Article 290 requires the legislative act to specify the essential elements of the area. Article 290 also accords the Council or the European Parliament power to revoke the delegation to the Commission, or veto the particular delegated act. The European Parliament’s Committee on Legal Affairs argued that Article 290 does not preclude other conditions being imposed on delegation of power to the Commission, but the latter is likely to resist this interpretation.97 There are reasons for concluding that the new regime means a shift in the inter-institutional balance of power in favour of the Commission. First, the controls in Article 290(2) TFEU are not mandatory. The conditions of application to which the delegation is subject ‘shall’ be determined in the legislative act. These ‘may’ entail the possibility of revocation of the delegation by the European Parliament or the Council, or a condition whereby the delegated regulation enters into force only if there is no objection expressed by the European Parliament or the Council within a specified period of time. The controls therefore only operate where written into the legislative act.98 The wording of the analogous provision in the Constitutional Treaty was consciously altered to make it clear that ‘these conditions do not constitute a mandatory element of such a law or framework law’.99 Secondly, the ex ante control in Article 290(1) TFEU will be difficult to monitor and enforce. Non-legislative acts can only amend or supplement ‘certain non-essential ­elements of the legislative act’, and cannot cover the ‘essential elements of an area’. These must be reserved for the legislative act, which must also define the ‘objectives, content, scope and duration of the delegation of power’. It will, however, often be difficult for the Council and the European Parliament to specify with exactitude the criteria that should guide the exercise of delegated power by the Commission. They may lack the knowledge and the time to delineate in the legislative act precise parameters for the exercise of regulatory choices. If these requirements are to be taken seriously 97  Committee on Legal Affairs A-7 0110/2010 (n 78) 9. 98  COM(2009) 673 (n 79) 7–8. 99  CONV 724/03, Annex 2, 93.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

133

then there will have to be oversight by the Union Courts. History does not indicate vigorous judicial enforcement of such criteria.100 The CJEU has, however, emphasized in the post-Lisbon jurisprudence that it is incumbent on the EU legislature to specify not only the objectives, but also the content, scope, and duration of the delegation of power in the legislative act.101 Even if compliance with these criteria is taken seriously by the CJEU, important regulatory choices will still be dealt with through delegated acts, since the exercise of such choices may only become apparent when the provisions of the legislative act are worked through in greater detail in the delegated acts. The reality is that secondary regulations often deal with complex regulatory choices or policy issues, which are not rendered less so by the fact that they are concerned with matters of detail or technicality. To the contrary, the devil is often in the detail, which is the very reason why the Comitology committees were created in the first place, so as to allow Member State oversight of these complex regulatory choices. Thirdly, the ex post controls in terms of veto power over a particular delegated act give nothing new to the Council. It already had a veto power through the management and regulatory committee procedures. We should, moreover, be mindful of the tradeoff that is inherent in the Lisbon schema for delegated acts. The pre-existing regime was based on generalized ex ante input into the making of the delegated norms, with the possibility of formal recourse to the Council in accord with the Comitology ­procedures. It allowed for regularized, general, and detailed input into the content of such norms by Member State representatives, with increasing control exercised by the European Parliament, more especially since the 2006 reforms. Article 290 TFEU by way of contrast is premised on a system of ex ante specification of standards in the primary law, combined with the possibility of some control ex post should the measure not be to the liking of the European Parliament or Council. The Council’s pressure for the schema in the Common Understandings 2011 and 2016 attests to its desire for a return to generalized input from national experts that characterized the pre-Lisbon regime. Fourthly, we should be mindful of the limits to the ex post controls in Article 290(2) TFEU. Revocation of the delegation might be useful as an ultimate weapon, but is illsuited to fine-tuned control over the content of a particular delegated act. This can only be achieved by the veto power. This too is a blunt tool, in the sense that neither the Council nor the European Parliament is accorded any formal right to propose amendments to a delegated act, but only the power to prevent its entry into force. The threat of the veto might be leverage to secure amendment to a delegated act, but this does not alter the fact that Article 290(2) contains no formal power to amend. Exercise of the veto is, moreover, crucially dependent on understanding the relevant measure. The Member State representatives on the Council clearly have neither the time nor ­expertise to perform this task unaided. The Committee on Legal Affairs emphasized the flow of 100  Case 156/93 European Parliament v Commission [1995] ECR I-2019; Case 417/93 European Parliament v Council [1995] ECR I-1185; Case C-363/14 European Parliament v Council, EU:C:2015:579. 101  Case C-696/15 P Czech Republic v European Commission, EU:C:2017:595, [48]–[50].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

134

ADMINISTRATION AND LAW

information from Commission to the relevant committees of the European Parliament, including information about successive drafts of delegated acts.102 The Common Understanding 2016, discussed in the previous section, improved the European Parliament’s position as compared with the 2011 version. It remains to be seen how it works in practice. Finally, the preceding difficulties will be more pronounced given that the European Parliament and Council have to raise any such objection within a period specified by the legislative act. The period will vary depending on the area, but the norm in the Common Understanding 2016 is two months, which can be extended by a further two months at the behest of the Council or European Parliament.103 The Council and European Parliament will, therefore, have to ‘get their act together’ pretty quickly if either institution seeks to prevent the non-legislative act becoming law. The reality is the Council and European Parliament will only be able to make a reasoned choice concerning a draft delegated act within the limited time available with the help of national experts as institutionalized through the Common Understanding 2016. Formal legal differences persist between the role of experts as used for delegated acts via the Common Understanding, and experts that participate in Comitology committees for the making of implementing acts; how far those differences continue in ­substance remains to be seen.

(E) Implementing Acts: Survival of Comitology The law in this area has become more complex because the Lisbon Treaty, following the Constitutional Treaty, recognizes a third category of legal act, the implementing act (Article 291 TFEU). The continuance of Comitology is envisaged by Article 291 TFEU. Article 291(2) provides that where uniform conditions for implementation are needed the requisite implementing powers must be conferred on the Commission, or in ­limited instances the Council. The acts thereby adopted are termed implementing acts. Article 291(3) stipulates that the European Parliament and the Council shall lay down in advance, by means of a legislative regulation enacted by the ordinary legislative ­procedure, the rules and principles concerning mechanisms for control by the Member States of the Commission’s implementing powers. Regulation 182/2011104 embodies the Comitology regime under Article 291.105 The  official view is that there are two procedures, the advisory procedure and the ­examination procedure. The legal and practical reality is, however, that there are four 102  Committee on Legal Affairs A-7 0110/2010 (n 78) 10. 103  Interinstitutional Agreement (n 85) [18]. 104  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L55/13; Proposal for a Regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, COM(2010) 83 final. 105  P Craig, ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’ (2011) 36 ELRev 671.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

135

­ rocedures. This is in part because the Regulation also makes provision for implep menting acts to be immediately applicable on grounds of urgency.106 It is in part because the detailed workings of the examination procedure replicate the substance of the divide between management and regulatory committees, insofar as different consequences flow from a committee’s failure to vote in favour of an implementing act, and voting against it. The Commission submits a draft of the implementing act to the committee composed of Member State representatives, chaired by the Commission.107 The Commission can revise the measure in the light of the committee discussion at any time before the committee has delivered its opinion.108 The committee gives its opinion within a time limit set by the Commission. The advisory procedure is the default procedure, in the sense that it is used except when the examination procedure is mandated.109 Under the advisory procedure, as the name would indicate, the Commission decides on the implementing measures ‘taking the utmost account of the conclusions’110 from the committee deliberations. The examination procedure applies in relation to implementing acts of general scope.111 It also applies to other acts that relate to:112 programmes with substantial implications; agriculture and fisheries; environment, security and safety or protection of the health or safety of humans, animals, or plants; common commercial policy; and taxation. This is subject to the caveat that the advisory procedure may be used even in these cases where it is considered to be ‘duly justified’.113 The rules on the examination procedure provide for different outcomes depending on whether the committee votes in favour of the draft measure, against it, or delivers no opinion. The implementing act will be passed if the committee delivers a positive opinion,114 voting in accord with the rules for qualified majority laid down in Article 16(4)–(5) TEU.115 If it gives a negative opinion the Commission cannot adopt the acts. It can, however, submit a revised version to the committee, or submit the original version to the appeal committee.116 The Commission can also adopt the acts even where there has been a negative opinion if adoption without delay is necessary to avoid creating a significant disruption of the markets in the area of agriculture, or a risk for the financial interests of the Union within the meaning of Article 325 TFEU. The Commission must then immediately submit the adopted acts to the appeal committee, and if it delivers a negative opinion on the adopted acts, the Commission must then repeal them. Where the appeal committee delivers a positive opinion or delivers no opinion, the acts remain in force.117 There is, in addition, provision enabling the Commission to adopt the draft act in cases of urgency.118 If the committee that examined the draft act delivers no ­opinion, the default position is that the Commission can adopt the implementing act, save for certain types of case where prima facie it cannot do so.119 However, even in 106  Reg 182/2011 (n 104) Art 8. 107  Ibid Art 3(2)–(3). 108  Ibid Art 3(4). 109  Ibid Art 2(3). 110  Ibid Art 4(2). 111  Ibid Art 2(2)(a). 112  Ibid Art 2(2)(b). 114  Ibid Art 5(2). 115  Ibid Art 5(1). 116  Ibid Art 5(3). 113  Ibid Art 2(3). 117  Ibid Art 7. 118  Ibid Art 8. 119  Ibid Art 5(4).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

136

ADMINISTRATION AND LAW

these instances it can submit a revised version of the draft measure to the committee, or take the original version to the appeal committee. The Commission emphasized in its original proposal that control was to be exercised by the Member States, and that neither the Council nor the European Parliament were accorded a direct role on the committees, although they could have access to information about the proceedings.120 This is reflected in the Regulation.121 It provides that where the basic act is adopted under the ordinary legislative procedure, the European Parliament or the Council may at any time indicate to the Commission that they consider a draft implementing act to exceed the implementing powers provided for in the basic act. The Commission has a duty to review the draft act, taking account of the views of the European Parliament and Council. It is not, however, obliged to withdraw the act, but must rather inform the European Parliament and the Council whether it intends to maintain, amend, or withdraw the draft implementing act. There are also provisions concerning information on Comitology committees and documentation to be made available to the European Parliament and Council.122

(F) Implementing Acts: Inter-Institutional Balance of Power The European Parliament and the Council have certain limited rights under Regulation 182/2011, but this should not mask the difference between the new Regulation and the previous Comitology regime. The Commission emphasized, as we have seen, in its original proposal that control was to be exercised by the Member States, and that neither the Council nor the European Parliament were accorded a direct role on the committees.123 The provisions of the new Treaty on implementing acts, which are set out in Article 291, do  not provide any role for the European Parliament and the Council to control the Commission’s exercise of implementing powers. Such control can only be exercised by  the Member States. A legal framework is required to establish the mechanisms of such control.

This approach is reflected in the 2011 Regulation. The committees are composed of representatives of the Member States, but there is no recourse to the Council as there was under the previous Comitology regime. The 2011 Regulation formally disaggregates the representatives of Member States that serve on the committees from those on the Council. It remains to be seen whether this is sustainable in practice. The ministers that ­represent the Member States on the Council may well take a keen interest in the ­appointees from their respective states that serve on the new Comitology committees. There is, moreover, likely to be exchange of views between the two sets of personnel. 120  COM(2010) 83 final (n 104) 3. 121  Reg 182/2011 (n 104) Art 11. 122  Ibid Art 10.    123  COM(2010) 83 (n 104) 3.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

137

The Commission’s desire to preserve the distinction between input into implementation via Member State representatives on Comitology committees, and Member State ­interests as vocalized in the Council, may therefore be hard to sustain, more especially because the committee voting rules mirror those of the Council itself. Thus, it is difficult to believe that Member State representatives in the Council will not discuss, brief, and consult their representatives on the Comitology committees on the policy position that should be taken on important implementing acts. This interchange will work both ways. The Member State representatives on the committees are likely to liaise with, inform, and seek the views of those who represent their Member States on the Council, or what is more likely in reality, the civil servants, whether based in Coreper or at home, who support their ministerial representatives on the Council. This interchange is likely to be enhanced as a result of the Common Understanding 2016, which provides that consultation of national experts in relation to delegated acts may occur through existing expert groups, thereby opening the possibility to use experts from Comitology committees for consultations under Article 290.124 Thus while it remains formally true, as the Commission opined in the preceding quotation, that the Council is accorded no role in controlling implementing acts, channels of communication of the kind adumbrated above are likely to emerge, which may well be used to effectuate Council objectives indirectly even if this cannot be done through more direct means. This is unsurprising, and reveals the fragility of the practical and theoretical underpinning to the Article 291 strategy. It is predicated on the assumption that implementing acts are of no concern to the Council qua Council, and that it is simply a matter of the practicalities of implementation in each Member State, by way of contrast to ­delegated acts where the Council and European Parliament are both given a formal institutional role in their own right. This assumption is problematic because of the difficulty of the divide between delegated and implementing acts considered in the following section. There will inevitably be many cases where it is contestable whether a secondary measure should be characterized as a delegated or implementing act. The assumption that if this fine calculus leads to classification of the measure as an implementing act then the Council or European Parliament have no institutional interest in the measure, and that it is simply a matter of the practicalities of implementation in each Member State, does not readily withstand examination. The reality is that value judgments and political choices will be contained in and effectuated through implementing acts. They are EU measures in both formal and substantive terms. It will, therefore, not be surprising if the Council qua Council, or the European Parliament, takes an interest in these more detailed measures that flesh out the basic legislative act.

124  Interinstitutional Agreement (n 85) [4].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

138

ADMINISTRATION AND LAW

(G) Delegated and Implementing Acts: The Nature of the Divide We have already seen that pre-Lisbon the making of secondary measures was governed by Article 202 EC, which was framed so as to allow delegation of power to the Commission for the ‘implementation’ of rules laid down by the Council, subject to the Comitology procedure. There was significant variation as to the secondary measures concluded pursuant to Article 202 EC. In reality there was a spectrum of secondary norms, with ‘pure’ rulemaking at one end, ‘pure’ implementation at the other, and many measures falling between the two. This did not, however, matter pre-Lisbon since the same Treaty provision, Article 202 EC, applied to all such measures. The term ‘implementation’ as used in Community legislation and on official ­websites thus covered what are now termed delegated acts, as well as the terrain now ­covered by implementing acts. Thus the standard format in EC legislation was to empower the Commission to make ‘implementing provisions’, ‘implementing rules’, or ‘determine detailed rules’, subject to Comitology, and the paradigmatic application was through delegated rulemaking or decision-making that amended or supplemented the primary legal norm.125 The same terminology was evident on official websites, where the term ‘implementing provisions’ carried the broad connotation used in Community legislation.126 The post-Lisbon world now requires us to distinguish between delegated and implementing acts, since very different controls apply to the two types of act. The rationale for the divide was to distinguish between secondary measures that were ‘legislative’ in nature, delegated acts, and those that could be regarded as more purely ‘executive’, implementing acts. Delegated acts should then be legitimated and rendered accountable through the types of control in Article 290: the delegated act was amending or supplementing the legislative act, and therefore should be subject to oversight from the two constituent arms of the legislature, the Council and the European Parliament. Implementing acts, by way of contrast, were the preserve of  the Commission and the Member States that had the principal responsibility for implementation under Article 291, hence the types of control contained in the 2011 Comitology Regulation, and the sidelining of the Council and the European Parliament. The difficulties of realizing this divide were, however, never fully thought through in the deliberations on the Constitutional or Lisbon Treaties. Delegated acts are of general application and amend or supplement the legislative act. Implementing acts will normally be of general application, since Article 291 specifies their use in circumstances where uniform conditions for implementing legally binding acts are needed. Thus in most instances implementing acts will be of general application. The key distinguishing feature is therefore, as acknowledged by the Commission,127 that implementing

125  Craig (n 77) 271. 126  See, eg, http://ec.europa.eu/competition/antitrust/legislation/regulations.html. 127  COM(2009) 673 (n 79).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

139

acts execute the legislative act without amendment or supplementation. There are, however, very considerable difficulties with this divide.128 First, there is what might be termed ‘the analytical problem’: all secondary measures involve some addition to the primary act. Many thousands of secondary measures have been enacted since the inception of the EEC. In the paradigm case they bring greater exactitude to the meaning of an article of the primary act. Thus, for example, there might be a complex primary act dealing with agriculture, and a secondary measure specifies in greater detail one part of the primary act relating to, for example, the requirements for the independence of agencies that pay money pursuant to the primary regulation. Such measures clearly ‘add something’ to the primary act. This will be equally true for any measure classified as an implementing act in the post-Lisbon world, since the very specification of uniform conditions of implementation will be ‘adding something’ to the enabling provision in the legislative or delegated act. The key issue is therefore whether what is added will be regarded as amending or supplementing the primary act. This demands the following evaluation. It might be considered that the article in the legislative act sufficiently resolved the relevant issues, the conclusion being that the secondary measure, while obviously imbuing the article of the legislative act with greater detail, and hence ‘adding something’ or ‘fleshing it out’, did not supplement it so as to trigger recourse to Article 290, and therefore Article 291 could be used. It might in other instances be considered that the relevant article in the legislative act is less definitive, the conclusion being that while the legislative act provided sufficient guide as to essential principles so as to be lawful under Article 290, the secondary measure nonetheless ‘supplemented’ it through fleshing out the meaning of the ­non-essential elements, and therefore Article 290 had to be used. The difficulty in this respect is exacerbated by the fact that the answer will depend on the degree of abstraction or specificity with which the Court reads the background legislative act. Thus, other things being equal, if the CJEU takes a relatively abstract view on this issue, the consequence will be to allow much filling in of detail through an implementing act, even if that detail clarifies matters that were not specified in the legislative act itself, provided only that it falls within the general aims of the legislative act. The CJEU might, alternatively, demand greater specificity in this respect, with the consequence that the detailed fleshing out of the legislative act will be regarded as ­supplementing it and hence a delegated act will be required. The divide between the terrain of delegated and implementing acts will turn on the preceding determination. It is difficult to regard this as satisfactory. It will generate inter-institutional disputes as to whether recourse should be had to Article 290 or 291 TFEU. It calls into question the normative foundation for the differential controls that operate in relation to delegated and implementing acts. There will inevitably be instances where juxtaposition of acts will reveal scant reason as to why the addition to

128  Craig (n 105).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

140

ADMINISTRATION AND LAW

the legislative act in the one instance should be regarded as a ‘new’ non-essential ­element, such that a delegated act is required, while in other instances this is not so, such that an implementing act can be used. Secondly, the preceding difficulty is exacerbated by the ‘time problem’. It is not ­possible to decide conclusively whether a secondary measure falls into the category of delegated or implementing acts until it is made, more especially because any draft measure may be changed prior to final enactment and this may take the measure from the category of delegated to implementing act, or vice versa. However, the choice between delegated and implementing act has to be made at an early stage. This is because the procedures for making delegated and implementing acts are very different. Delegated acts are subject to the ex ante and ex post controls described earlier exercised by the Council or European Parliament; implementing acts are subject to a revised version of the Comitology procedure. The danger is that once the Commission has decided that a measure should be classified as, for example, an implementing act, and the revised Comitology process has been engaged, it will be loath to admit that any changes made by this process involve ‘supplementation’ of the legislative act via the introduction of ‘new’ non-essential elements, since this would mean that the act should be regarded as a delegated act. Thirdly, the difficulties in applying the Treaty criteria for the divide between ­delegated and implementing acts will almost certainly mean that the principal institutional players will seek to categorize secondary measures in order to maximize their control. How this plays out remains to be seen. The Council may, for example, be content for measures to be categorized as implementing acts, notwithstanding that it has no formal veto of the kind that exists under Article 290, and notwithstanding the fact that the 2011 Comitology Regulation provides no means of recourse to the Council of the kind that existed hitherto. This is because the Article 291 route does give Member State representatives the opportunity for formal and detailed input into the making of the measure. Moreover, while the Council qua Council is not afforded the oversight role that it had previously, the political reality is, as seen earlier, that things may not work out that differently. The European Parliament, by way of contrast, is likely to press for  more measures to be included within the category of delegated acts, since it is Article 290 that contains the veto power, and Article 291 has little to offer the European Parliament. This has indeed been the position taken by the European Parliament, which has pressed for a broad reading of Article 290.129 If the new divide between ­delegated and implementing acts is played for maximum political advantage as judged by the principal institutional players, this then undermines the very rationale for the dichotomy between the two types of act. Finally, the Lisbon regime will lead to greater institutional complexity. There are Comitology committees established pursuant to Article 291. There is, in addition, the 129 European Parliament resolution of 25 February 2014 on follow-up on the delegation of legislative ­ owers and control by Member States of the Commission’s exercise of implementing powers (2012/2323(INI)) p [2017] OJ C285/2.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

141

world of committees established pursuant to the Common Understandings 2011 and 2016. There may be some overlap between the committees, but the two areas nonetheless remain formally distinct.

(H) Delegated and Implementing Acts: The Case Law The preceding difficulties are evident in the CJEU’s case law distinguishing between delegated and implementing acts. The initial decision, Biocidal Products,130 provided little guidance on the nature of the distinction between delegated and implementing acts, leaving the choice largely to the EU legislature, which is unsatisfactory for the reasons set out below. The second decision, Visa Reciprocity,131 reveals the difficulties in deciding whether a secondary measure amends a legislative act and thus must be made through a delegated act. The third decision, EURES Network,132 reveals the ­complexities of deciding whether an act supplements a legislative act and hence must be done by a delegated act, while the fourth case, Connecting Europe Facility,133 bears testimony to the need to distinguish carefully between grant of power to amend and to supplement within Article 290. The CJEU’s initial decision on the divide between delegated and implementing acts was Biocidal Products.134 A legislative act had been enacted concerning biocidal products and empowered the Commission to make implementing regulations pursuant to Article 291. The Commission contended that Article 290 should have been used, because the regulation supplemented the legislative act and thus should be regarded as a delegated act. The Commission argued that the power conferred by Article 291 TFEU was purely implementing in nature, whereas that contained in Article 290 was a quasi-legislative power. It contended that the choice as between a delegated and an implementing act should be based on objective and clear factors that were amenable to judicial review, a view supported by the European Parliament.135 The respective scopes of Articles 290 and 291 TFEU were mutually exclusive, and implementing acts could not affect the content of the legislative act. If the purpose was to adopt non-essential rules of general application, which completed the normative framework of the legislative act, then those rules supplemented the legislative act and had to be made through Article 290. If, however, the purpose was merely to give effect to the rules already laid down in the 130 Case C-427/12 Commission v European Parliament and Council, EU:C:2014:170; D Ritleng, ‘The Dividing Line between Delegated and Implementing Acts: The Court of Justice Sidesteps the Difficulty in Commission v. Parliament (Biocides)’ (2015) 52 CMLRev 243. 131  Case C-88/14 European Commission v European Parliament and Council, EU:C:2015:499. 132  Case C-65/13 European Parliament v Commission, EU:C:2014:2289. 133  Case C-286/14 European Parliament and Council v Commission, EU:C:2016:183. 134 Case C-427/12 Commission v European Parliament and Council (n 130); P Craig, ‘Delegated and Implementing Acts’, in R Schutze and T Tridimas (eds), Oxford Principles of European Union Law, Volume I: The European Union Legal Order (Oxford University Press, 2018), Ch 22. 135  Committee on Legal Affairs, Report on follow-up on delegation of legislative powers and control by Member States of the Commission’s exercise of implementing powers, A7-0435/2013, 4 December 2013, Rapporteur J Szájer.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

142

ADMINISTRATION AND LAW

basic act while ensuring uniform conditions of application within the EU, then Article 291 could be used.136 Advocate General Cruz Villalón examined the distinction between delegated and implementing acts at some length, noting the different purposes of the respective provisions, the former being to accord the Commission with some regulatory power to amend or supplement the legislative act, subject to the conditions in Article 290, the latter being to give the Commission implementing powers normally reserved to Member States where this was necessary to ensure uniform conditions for implementation. For the Advocate General, the key difference between the two was the ‘fact that delegation allows a measure of discretion which is not mirrored in the case of implementation’, in the sense that ‘the legislature delegates to the Commission the ability to decide issues that, in principle, it should itself have decided, whereas implementation under Article 291 TFEU operates in relation to provisions the content of which has, as regards the substance, been defined by the legislature’.137 The criterion used by the Advocate General restates the analytical problem. It does not with respect resolve it. Given that all delegated and implementing acts ‘add something’ to the legislative act, it must still be determined when that should be regarded as supplementing the legislative act so as to trigger Article 290, and when it should not be so regarded so as to justify recourse to Article 291. The answer to that inquiry demands application of the criterion set out above, or something analogous thereto. In its judgment, the CJEU acknowledged that prior to the Lisbon Treaty the term ‘implementing powers’ in Article 202 EC covered the entire terrain now divided between delegated and implementing acts. The Court, however, provided little by way of guidance as to the divide between the two species of act, saying merely that d ­ elegated acts supplemented or amended non-essential elements of the legislative act, whereas implementing acts enabled the Commission to provide further detail in relation to the content of a legislative act, in order to ensure that it was implemented under uniform conditions in all Member States.138 The CJEU did not, therefore, sharpen the nature of the analytical divide, but chose rather to leave considerable choice to the EU ­legislature, as is readily apparent from the following extract.139 It must be noted that the EU legislature has discretion when it decides to confer a ­delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. Consequently, judicial review is limited to manifest errors of assessment as to whether the EU legislature could reasonably have taken the view, first, that, in order to be implemented, the legal framework which it laid down regarding the system of fees referred to in Article 80(1) of Regulation No 528/2012 needs only the addition of further detail, without its non-essential elements having to be amended or supplemented and, secondly, that the provisions of Regulation No 528/2012 relating to that system require uniform conditions for implementation. 136  Ibid [22]–[23]. 137  Case C-427/12 Commission v European Parliament and Council, EU:C:2013:871 [62]. 138  Case C-427/12 Commission v European Parliament and Council (n 130) [37]–[39]. 139  Ibid [40].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

143

This approach obviated the need for the Court to give clear guidance on the nature of the dichotomy between delegated and implementing acts. The CJEU’s reasoning is problematic, and the difficulty resides in the very premise in the extract, viz that the EU legislature has discretion as to whether to confer a delegated or an implementing power on the Commission. This proposition elides two distinct issues, these being the legislature’s power to use both delegated and implementing acts, and whether the ­conditions for the application of the respective types of act have been met. It is true that the legislature has ‘discretion’ as to the former issue, but only in the reductionist sense that the Lisbon Treaty makes provision for both delegated and implementing acts, with the consequence that it is open to the EU legislature in the legislative act to choose whether further rules should be made pursuant to Article 290 or Article 291. This provides, however, no foundation for the conclusion that the EU legislature has ‘discretion’ as to the latter issue, which is whether the conditions for the application of Article 290 or Article 291 have been met in any particular instance. Thus, the fact that the EU legislature may take the view that, for example, an implementing act will suffice for rules made pursuant to a particular article of the legislative act, because they only add some further detail that does not amend or supplement its non-essential elements, does not ‘make it so’. This is more especially so given that the analytical problem is compounded by the temporal one, set out earlier. The EU legislature will stipulate the type of secondary act to be used pursuant to different articles of the legislative act. However, the particular delegated or implementing act has by definition not been made at this point. It is only when it is made that it can be determined whether it does in reality conform to the definition of a delegated or implementing act provided in the Treaty. The difficulties of deciding whether a secondary measure amends a legislative act is exemplified by the Visa Reciprocity case.140 The EU operated a system whereby nationals from certain third countries did not have to secure a visa before entering the EU, whereas those from other countries had to do so. However, if a country came in the former category, its exemption from visa requirements could be suspended if it imposed such requirements on nationals from an EU Member State. The legal act through which this decision was made varied depending on the length of time for which the third country persisted with its visa requirements for nationals of an EU Member State. There were three stages. The first stage involved adoption by the Commission of an implementing act suspending the exemption from the visa requirement for certain categories of nationals of the third country for six months, which could be extended. The second stage became operative where the third country still maintained its visa

140  Case C-88/14 European Commission v European Parliament and Council (n 131); M Chamon, ‘The Dividing Line between Delegated and Implementing Acts: The Court of Justice Settles the Issue in Commission v.  Parliament and the Council’ (2015) 52 CMLRev 1617; A Mei, ‘Delegation of Rulemaking Powers to the Commission Post-Lisbon’ [2016] ECLRev 538.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

144

ADMINISTRATION AND LAW

requirement for nationals of a Member State: the Commission could then issue a ­delegated act suspending the exemption from the visa obligation for all nationals of that third country for twelve months, and insert in the Annex to the parent regulation a footnote indicating that the exemption from the visa requirement had been suspended with regard to that third country, specifying the period of the suspension. The third stage related to the permanent reinstatement of the visa obligation, which required the ordinary legislative procedure. The Commission argued that the requirement for a delegated act at the second stage was inconsistent with Articles 290 and 291, since the twelve-month suspension did not entail any amendment or supplementation of the parent regulation, and hence an implementing act should suffice. It further argued that the placing of a footnote in the Annex to the parent regulation, signifying that the visa exemption was suspended, was a ‘a mere technical tool used abusively in order to disguise the implementing act as a delegated act’.141 The CJEU disagreed. It began by reiterating its finding from the previous case that the EU legislature had discretion as to whether to proceed through a delegated or an implementing act.142 This was, however, qualified by the need to comply with the ­criteria in the Treaty for the divide between delegated and implementing acts. The Court held that the existence of discretion in relation to the secondary measure was not determinative in this respect. A delegated act would have to be used if the secondary measure amended or supplemented non-essential elements of the legislative act.143 The CJEU concluded that a delegated act was correctly prescribed for the second stage of the procedure, because it reintroduced, for a period of twelve or eighteen months, a visa obligation for nationals of a third country that had previously been exempt from that requirement, and therefore amended, if only temporarily, the normative content of the legislative act.144 The EURES Network145 case exemplifies the difficulty of deciding whether an act supplements a legislative act. It was concerned with implementing measures adopted by the Commission pursuant to Article 38 of Regulation 492/2011 concerning free movement of workers.146 The contested implementing measure was concerned with the creation and functioning of the EURES Network, which was designed to enhance knowledge of job vacancies in the EU and facilitate the filling of such placements. The European Parliament argued that the Commission implementing decision could not be made pursuant to Article 291, because six aspects thereof supplemented the ­legislative act. The CJEU accepted that ‘in exercising an implementing power, the Commission may neither amend nor supplement the legislative act, even as to its ­non-essential elements’.147 It nonetheless rejected the claim, after having analysed each 141  Case C-88/14 European Commission v European Parliament and Council (n 131) [21]. 142  Ibid [28]. 143  Ibid [32]. 144  Ibid [42]. 145  Case C-65/13 European Parliament v Commission (n 132). 146  Regulation 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement of workers in the European Union [2011] OJ L141/1. 147  Case C-65/13 European Parliament v Commission (n 132) [45].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

145

aspect of the contested implementing decision that the European Parliament said was problematic. Space precludes further examination of the Court’s reasoning in this respect. Suffice it to say that the implementing decision added considerable detail to the legislative act, revealing the inherent difficulty in deciding when this is held to ­supplement the legislative act, an issue to which we shall return later. These tensions were cast into sharp relief by the reasoning in Connecting Europe Facility,148 where the focus was on the line between power to amend and power to supplement within Article 290. The European Parliament argued that the Commission had exceeded its power to make a delegated act, because it had added an extra annex to the legislative act, and that it should instead have adopted a separate delegated act. It is the CJEU’s discussion of the difference between amend and supplement that is of interest here. The CJEU held that delegation of a power to ‘supplement’ a legislative act only authorized the Commission to flesh out that act. It had, when doing so, to comply with the entirety of the legislative act, and its authority was limited to development in detail of non-essential elements of the legislation that the legislature had not specified. By way of contrast, delegation of a power to ‘amend’ a legislative act authorized the Commission to modify or repeal non-essential elements laid down by the legislature in that act. It was not required to act in compliance with the aspects of the legislation that it intended to amend.149 It was, moreover, for the legislature to make clear which type of delegated power it was according to the Commission; it was not for the Commission to make that determination for itself.150 The CJEU concluded that the legislature only intended to give the Commission power to supplement the legislative act, not to amend it, and therefore the contested regulation was invalid, since it could not add provisions to the legislative act. The following conclusions can be drawn from the preceding cases. First, it was decided in the Lisbon Treaty to differentiate delegated and implementing acts, and to establish different regimes of control to reflect the differences between the two types of measure. These differences were felt to be of constitutional significance. It can be accepted that when reviewing the choice made by the legislature the Court should consider the reasons why it chose to proceed via a delegated act rather than an implementing act, or vice versa. This is, however, to say no more than that, when exercising judicial review, a Court should be properly informed as to the reasoning that underpinned the decision of the body being reviewed. It provides no foundation for the conclusion that the body subject to review has ‘discretion’ as to whether the conditions for the application of delegated or implementing acts are met, with the consequence that the Court uses only light-touch review for manifest error. The EU legislature must perforce exercise interpretive judgment as to the application of Articles 290 and 291, but if the exercise of such judgment by an EU institution in relation to a Treaty p ­ rovision

148  Case C-286/14 European Parliament and Council v Commission (n 133). 149  Ibid [41]–[45]. 150  Ibid [46].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

146

ADMINISTRATION AND LAW

is to be equated with discretion justifying only light-touch review this would have major ramifications across the entirety of EU law. Secondly, the case law throws into sharp relief the difficulty of distinguishing between delegated and implementing acts, more especially when the issue is whether the contested measure supplemented the legislative act and therefore had to be made through a delegated act. The problem is exemplified by the preceding cases. In the Visa Reciprocity case the CJEU stated that an implementing act was designed to ‘provide further detail in relation to the content of a legislative act’.151 By way of contrast, the CJEU in Connecting Europe Facility,152 when defining a delegated act, stated that to supplement meant to flesh out the detail of the legislative act in relation to its nonessential elements. The difficulty of deciding whether the addition of further detail can be done via an implementing act, or whether that addition constitutes supplementation that requires a delegated act, is exemplified by EURES Network,153 where the European Parliament argued that what had been done in the contested implementing regulation really had supplemented the legislative act and thus should have been done through a delegated act. The CJEU nonetheless concluded that, while such detail had been added, it did not constitute supplementation of the legislative act. Thirdly, these cases reflect the analytical conundrum set out earlier. The thrust of the case law is to resolve the conundrum by concluding that the addition of further detail can be accomplished through implementing acts, rejecting arguments that a delegated act was required. The CJEU and GC have reasoned as follows: the limits of the Commission’s implementing power should be determined by the essential general aims of the legislative act in question; within those limits the Commission is authorized to adopt all measures necessary or appropriate for implementation of that act; and that provided these conditions are met, the further detail will be accepted as valid implementing measures.154 This approach risks, however, undermining the very rationale for the divide between delegated and implementing acts. If the addition of further detail is to be accepted as valid through an implementing act, provided only that it is consistent with the essential general aims of the legislation, and necessary or  appropriate for its implementation, then this gives considerable latitude to the Commission to shape the legislative act, without the democratic controls built into Article 290. The European Parliament has, by way of contrast, argued strenuously that more secondary measures should be required to be delegated acts, taking a broad view of what constitutes amendment or supplementation for these purposes.155 Fourthly, the problems are further compounded by the demands placed on the ­legislature in the Connecting Europe Facility case.156 It will, therefore, be necessary in 151  Case C-88/14 European Commission v European Parliament and Council (n 131) [30]. 152  Case C-286/14 European Parliament and Council v Commission (n 133) [41], [44], [45]. 153  Case C-65/13 European Parliament v Commission (n 132). 154 Ibid [44]–[46]; Cases T-261/13 and 86/14 Netherlands v European Commission, EU:T:2015:671, [43]–[45]. 155  European Parliament resolution of 25 February 2014 (n 129). 156  Case C-286/14 European Parliament and Council v Commission (n 133).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

147

the future to decide not only whether an act is properly regarded as delegated or implementing, but whether, even if it is a delegated act, the legislature accorded the Commission power to supplement and amend, or only accorded it power in one of these respects. Finally, there is a double paradox that besets this area. The distinction between ­delegated and implementing acts was introduced under the banner of simplification, which it has manifestly failed to achieve. The distinction between delegated and ­implementing acts was also adopted because it was felt to be important constitutionally and pragmatically. The problematic nature of the divide, coupled with the broad ­interpretation given to implementing act, undermine, however, the normative claim that the two types of act should be subject to markedly different forms of control and accountability, and this paradox is further heightened by the fact that, as seen above, the committee structure that was excised from Article 290 has partially ­reappeared.

6 Conclusion The Lisbon regime for scrutiny and control over secondary measures in the form of delegated and implementing acts is complex and problematic for the reasons set out earlier. The formal Treaty provisions are, however, unlikely to change in the foreseeable future, nor is the general Comitology regime that pertains to implementing acts. The practical operation of the new complex world is, by way of contrast, far from certain. It is readily apparent that the task of ensuring the legitimacy of secondary rulemaking or delegated regulation, consistent with the dictates of practical political life, is an endemic problem for all polities. The nature of the EU’s decision-making structure merely serves to render the problem more difficult, not to change its nature. The complexity of the EU system for dealing with delegated and implementing acts should not, however, serve to conceal the most significant issue underlying the entire discourse, which is the nature of the enacted measures and the institutional controls to which they should be subject. The Commission insists that delegated acts are concerned primarily with matters of technical detail, where the legislative act has established the issues of principle. It invested significant effort to increase its autonomy over the passage of such measures, which it regards as an inherent part of its ‘executive function’. It fought Comitology ever since it was created. It has striven since the early 1990s to find ways of satisfying the Council and European Parliament through a schema of the kind included in the Lisbon Treaty, with the hope that regulatory and management committees as presently conceived could be abolished. The problem is that the premise underpinning the Commission’s view accords ill with reality. There are to be sure some delegated acts that can be properly regarded as purely technical. There are a great many that cannot be characterized in this manner.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

148

ADMINISTRATION AND LAW

EU policy evolves across time. The classic mode of development is for there to be a new legislative act in the relevant area, followed by delegated or implementing acts. The idea that the delegated acts can be regarded as purely technical, fleshing out points of  detail where all the essentials have been laid down in the primary regulation or ­directive, misrepresents reality. Take any instance where there has been a shift in policy effectuated through a legislative act/primary regulation, whether in the field of, for example, agriculture, the Structural Funds, the budget, customs, or energy. The ­delegated acts enacted thereafter will regularly deal with practical and normative issues of real importance, the solution to which may be guided, but rarely determined, by the legislative act. This is precisely why Member States invented Comitology in the first place. If the delegated and implementing acts really just dealt with technical detail, then the Member States might have been content to let the Commission get on with it. They realized within a bare five years of the EEC’s existence that this was not so. They were unwilling to give the Commission a blank cheque to provide answers to the issues of practical and normative choice left outstanding by the primary regulation, because they did not wish to invest the Commission with that degree of power and because they disagreed amongst themselves as to the desirable answers. Comitology was the response, allowing Member States a real input into the making of implementing ­measures, thereby exerting some control over the Commission and having an institutionalized forum through which to debate their contending views. The realization that secondary measures will often entail contentious practical and normative issues serves equally to explain the European Parliament’s long-running battles to secure a greater say in their passage, more especially since the creation and expansion of co-decision. The Commission’s mantra that implementation is a natural part of the executive function over which it should naturally have autonomy is premised ultimately on contentious assumptions about the meaning of those very concepts, implementation and executive function. Its vision of the Community method, as elaborated in the White Paper on Governance, is that pretty much everything after the enactment of the ­legislative act/primary regulation or directive should be regarded as implementation, which then falls within the ambit of the executive function residing with the Commission. This vision was given added force by the Commission’s desire for the legislative act to be set at a higher level of generality than hitherto, thereby leaving even more to be done through implementing measures. This interpretation of implementation and executive function should not, however, be regarded as self-evident. The idea that the ‘executive’ should have prima facie autonomy over the drafting and content of all delegated norms of a legislative nature that embody practical and normative choices requires justification, not simply assertion as if it were an a priori logical proposition. It is true that executives in the Member States have some regulatory power. The precise nature and extent of this power varies considerably from state to state and it must in any event be viewed against the entirety of the constitutional distribution of power that exists within any polity. It is not possible to ‘cut and paste’ experience in a Member State to the EU, more especially because the

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Comitology

149

Commission does not have a democratic mandate akin to that possessed by some national executives. It can be accepted that the regime for delegated acts in the Lisbon Treaty embodies ex ante and ex post controls over the passage of delegated acts. The efficacy of such controls is, however, doubtful for the reasons considered earlier. The difficulties of the new regime are exacerbated by the fragility of the divide between delegated and implementing acts. The new regime is moreover predicated on ‘legitimation from the top’, and ignores the possibility of ‘legitimation from the bottom’ via participation rights. The fact that the EU provides some ‘legitimation from the top’ does not mean that ‘legitimation from the bottom’ via participation rights should be rejected. The rationale for such participation is partly instrumental, connoting the idea that the resultant rules may be improved by input from interested parties. It is also partly non-instrumental, in the sense that it allows citizens to partake in the business of government. We should be mindful of imagining that a US-style Administrative Procedure Act can readily be transplanted to the EU, but we should be equally wary of dismissing such solutions too readily. There was prior to the Lisbon Treaty a good deal of rhetoric concerning participation and inclusion, much of which was directed towards enhancing the overall ­legitimacy of the EU. The reality was nonetheless that the extent to which the judicial or political organs were willing to commit to legally binding participation rights was decidedly limited.157 The EU Courts provided little assistance in this respect. They were active in promoting due process rights in adjudication.158 Their stance was markedly different when the applicant claimed participation rights in the making of norms of a legislative nature. The Union Courts consistently resisted such claims, denying consultation rights unless they were expressly provided by the relevant Treaty article, or by a regulation, directive, or decision.159 The Commission was reluctant to accord legally enforceable participation rights in relation to its own legislative or policy ­proposals.160 It remains to be seen whether Article 11 TEU makes a difference in this respect. It is expressed in mandatory language. It states that the EU institutions shall, by appropriate means, give citizens and representative associations the opportunity to make 157  Ch 11; J Mendes, Participation in EU Rulemaking: A Rights-Based Approach (Oxford University Press, 2010). 158  Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, [15]; Cases T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des poudres sphériques v Council and Commission [2000] ECR I-8147, [99]. 159  Case C-104/97 P Atlanta AG v Commission [1999] ECR I-6983; Case C-258/02 P Bactria IndustriehygieneService Verwaltungs GmbH v Commission [2003] ECR I-15105, [43]; Case C-263/02 P Commission v JégoQuéré & Cie SA [2004] ECR I-3425, [47]; Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305, [487]; Case T-70/99 Alpharma Inc v Council [2002] ECR II-3495, [388]; Case T-135/96 UEAPME v Council [1998] ECR II-2335, [69]–[80]. 160 Towards a Reinforced Culture of Consultation and Dialogue—General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM(2002) 704 final.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

150

ADMINISTRATION AND LAW

known and publicly exchange their views in all areas of Union action. The institutions must maintain an open, transparent, and regular dialogue with representative ­associations and civil society. It requires moreover that the European Commission carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. It will be for the CJEU to draw the concrete implications from these principles. It might choose to interpret the Article narrowly, thereby effectively leaving the matter to the political institutions, but this is problematic. It does not sit well with the injunction in Article 11 TEU that citizens and representative associations shall have the ­opportunity to make known their views in all areas of EU action, that there should be open, transparent, and regular dialogue between EU institutions and civil society, and that the Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. A restrictive ­interpretation of Article 11 would therefore send a very negative message about the nature of participatory democracy in the EU, and risk turning a provision that was meant to convey a positive feeling about the inclusive nature of the EU and its willingness to engage with its citizenry, into one that carried the opposite connotation.161 161  The GC has taken an expansive reading of the European Citizens’ Initiative, Case T-646/13 Bürgerausschuss für die Bürgerinitiative Minority SafePack—one million signatures for diversity in Europe v European Commission, EU:T:2017:59; Case T-754/14 Efler v European Commission, EU:T:2017:323.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

6 Agencies 1 Introduction It has become increasingly common for agencies to be deployed in nation states to fulfil certain governmental functions. The same phenomenon has occurred in the EU, especially since the 1990s. This chapter explores the role played by agencies in the EU. The discussion begins with consideration of the rationale for agencies in nation states and the EU respectively, followed by examination as to how EU agencies have evolved. The focus then turns to classification of EU agencies in the light of their ­powers and functions, and explication of the legal limits that constrain the powers that can be given to EU agencies. The remainder of the chapter analyses the legal, political, and financial mechanisms for controlling agencies and rendering them accountable. The chapter concludes with discussion as to whether the powers of agencies ought to be extended.

2  Rationale for Agencies in the Nation State We have already seen in the preceding chapter that modern democratic polities face a dilemma. The basic tenets of representative democracy tell us that norms of a legislative nature are legitimated through the legislative process. The range of issues over which government has responsibility means, however, that it is not possible for all such matters to be dealt with through primary legislation. This is in part because of time constraints. It is in part because not all eventualities can be foreseen when the primary legislation is enacted. It is in part also because the legislature may lack the technical competence to fill in the interstices of the legislative scheme. The necessary consequence is to delegate power, or to accord some independent legislative capacity to the executive branch of government. If the delegation option is taken this may mean that, for example, a minister is accorded power to make further rules for the topic in question, which will then be subject to scrutiny and control. This may be exercised through the legislative and the judicial process, and there may also be opportunity for participatory input by interested

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

152

ADMINISTRATION AND LAW

parties. This should not disguise the fact that political systems have real problems in legitimating and controlling the passage of such delegated norms. It may, however, be decided that the optimum strategy is not to deal with such matters ‘in house’, but rather to create an agency outside the normal departmental structure. This might be felt preferable for a number of reasons.1 It facilitates the use of experts who are not part of the normal bureaucratic structure. It frees up the parent department itself so that it can concentrate on strategic policy. It insulates the ­resolution of technical regulatory issues from the vagaries of day-to-day political change and hence increases the credibility of the choices thus made.2 It might be felt that certain matters, such as funding for the arts, should be dealt with outside the normal departmental structure to safeguard against possible political bias. It might be thought that an agency is a better option where there are regulatory issues in relation to which the government has a stake, such as the licensing of airline routes. The rationale for choosing an agency might be for a mixture of reasons, as exemplified by the regulation of race and gender equality in the UK. The desire to insulate such matters from the dayto-day political process, greater staffing flexibility, the wish to combine rulemaking and enforcement capabilities, and the government’s desire to immunize itself from adverse political fallout from day-to-day operations, while still taking the credit for such regimes, might all incline the government to choose the agency route. It would be mistaken to think of agencies as a modern creation. They have existed in some states such as the UK for over three centuries.3 There has, nonetheless, been a considerable increase in the use of agencies over the last three decades. This has been linked with what has become known as the regulatory state hypothesis advanced by Majone.4 On this view the principal state function in the modern era is the correction of market failure through rulemaking. It is argued that in the positive state the main institutions were parliament, government departments, and state-owned industry, with the primary political actors being political parties and civil servants. In the r­ egulatory

1 D Hague, W Mackenzie, and A Barker (eds), Public Policy and Private Interests: The Institutions of Compromise (Macmillan, 1975) 362; Report on Non-Departmental Public Bodies (Cmnd 7797, 1980) [10]–[16]; R Baldwin and C McCrudden, Regulation and Public Law (Weidenfeld & Nicolson, 1987) Ch 1; M Thatcher and A Stone Sweet, ‘Theory and Practice of Delegation to Non-Majoritarian Institutions’ (2002) 25 West European Politics 1; J Ziller, ‘Organizing the Central Administration: Policy and Instruments’, Law Department, EUI (2006); T Christensen and P Lægreid (eds), Autonomy and Regulation: Coping with Agencies in the Modern State (Edward Elgar, 2006); M Groenleer, The Autonomy of European Union Agencies: A Comparative Study of Institutional Development (Eburon, 2009). 2  G Majone, ‘Temporal Consistency and Policy Credibility: Why Democracies Need Non-Majoritarian Institutions’, Working Paper RSC No 96/57, EUI (1996); F Gilardi, ‘Policy Credibility and Delegation to Independent Regulatory Agencies: A Comparative Empirical Analysis’ (2002) 9 JEPP 873. 3 D Roberts, Victorian Origins of the British Welfare State (Yale University Press, 1960); W Lubenow, The Politics of Government Growth (Archon Books, 1971); Sir N Chester, The English Administrative System 1780–1870 (Clarendon Press, 1981); H Parris, Constitutional Bureaucracy: The Development of British Central Administration in the Eighteenth Century (Allen & Unwin, 1969). 4  G Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; G Majone, Regulating Europe (Routledge, 1996); G Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17 Jnl of Public Policy 139.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

153

state, by way of contrast, the main institutions are said to be parliamentary committees and regulatory agencies, with the primary actors being regulators, experts, and courts. Indirect political accountability replaces more traditional direct forms of holding ­government to account. Thus ‘regulatory politics combines a rule-bound legalistic policy style, a pluralist political culture and indirect political accountability’.5 The regulatory state thesis was fuelled by changing patterns of government in many European countries over the last three decades, with privatization of nationalized industry and the creation of regulatory bodies to oversee the new market structures.6 Further research on countries in Europe has found much to substantiate the claims about the ‘regulatory state’, with many instances of privatization, liberalization, and delegation to regulatory agencies and a shift away from state ownership. The research also revealed however that several features of the regulatory state were absent, or only partially present, and that there was some real diversity across countries and across different policy areas.7 Where agencies are established political and legal controls are set in place. Political controls may be exercised by the legislature, or the executive, or a combination thereof. There will normally be some degree of judicial review. There may also be rights to participate in formulation of agency policy. The admixture of these controls will depend on the nature of the agency and the constitutional structure of the country.

3  Rationale for Agencies in the EU The fact that the EU should have similar problems to those considered above should not come as a surprise. The resolution of such problems is, however, particularly problematic in the EU because of its decision-making process. We saw in the previous chapter that the Council’s need to delegate power to the Commission was recognized in the original Rome Treaty. Not all matters could be dealt with through the standard process for the making of Community legislation, particularly when they concerned, for example, the detailed regulation of agriculture, where fast reaction to the exigencies of the market was of the essence. The Council was, however, unwilling to give the Commission a blank cheque. It wished to have some control over the delegated norms. This signalled the birth of the management and ­regulatory committees, an institutionalized mechanism for allowing national, normally technocratic interests, to have an input into these norms. It was these committees that formed Comitology. The EC institutional structure was further developed through the creation of agencies. The initial two agencies were established in 1975 and many others have been 5  M Thatcher, ‘Analysing Regulatory Reform in Europe’ (2002) 9 JEPP 859, 867. 6  J Vickers and G Yarrow, Privatization: An Economic Analysis (MIT Press, 1988). 7  Thatcher (n 5) 867–9; V Schmidt, ‘Europeanization and the Mechanics of Economic Policy Adjustment’ (2002) 9 JEPP 894.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

154

ADMINISTRATION AND LAW

c­ reated since then. The nature of these agencies will be examined more fully later. Before doing so, we should reflect further on the rationale for their creation. A variety of factors has motivated national systems to choose the agency route. It is interesting therefore to consider why this institutional option has been increasingly used in the EU. It is unsurprising that factors that led to use of agencies in nation states have also been relevant in the EU. Thus the Commission in its Communication on Agencies stated that agencies ‘would make the executive more effective at European level in highly specialized technical areas requiring advanced expertise and continuity, ­credibility and visibility of public action’.8 It continued in the following vein, claiming that ‘the main advantage of using the agencies is that their decisions are based on purely technical considerations of very high quality and are not influenced by political or contingent considerations’.9 The Commission also emphasized the value of agencies in enabling the Commission to focus on its core function of policy formation, with the agencies implementing this policy in specific technical areas.10 The rationale for the agency option has also been discussed by academics, who have proffered differing views. Kreher saw the prime motivation for agency creation as the fostering of administrative integration.11 Shapiro’s view was less prosaic.12 If direct routes to further political integration were presently unacceptable, then it was best to proceed via creation of small discrete technical units that had the added advantage of not being the Commission, and not being in Brussels. The creation of relatively small agencies, each with a particular remit would also be more likely to lead to the creation of ‘Europe-wide epistemic communities’ of technocrats ‘whose technical truths transcend politics’.13 Dehousse saw more general forces at work.14 He argued that agency creation was a response to conflicting pressures within the Community. There was a sense that legislative harmonization was insufficient to dismantle trade barriers, and that some greater convergence of administrative practice was required. There was also the growing recognition that further delegation of direct administrative responsibility to the Commission was not politically feasible. Regulation by networks, whereby national and Community administrators came together to achieve a uniform response, was said to be the way out of this conundrum. The Comitology process was itself a prime ­example of this form of networking. Many of these committees developed from bodies whose principal function was to oversee the Commission in the discharge of power delegated to it by the Council, into forums through which national administrators could meet to try and 8  The Operating Framework for the European Regulatory Agencies, COM(2002) 718 final, 5. 9  Ibid 5. 10  Ibid 2. 11  A Kreher, ‘Agencies in the European Community—A Step towards Administrative Integration in Europe’ (1997) 4 JEPP 225. 12  M Shapiro, ‘The Problems of Independent Agencies in the United States and the European Union’ (1997) 4 JEPP 276. 13  Ibid 282. 14  R Dehousse, ‘Regulation by Networks in the European Community: The Role of European Agencies’ (1997) 4 JEPP 246.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

155

attain a uniform strategy for implementation. The ad hoc nature of these committee meetings was, however, a drawback, and Dehousse therefore saw agencies as a more permanent institutionalized locus through which such networking could occur.15 Majone placed the increasing use of agencies within a more general conceptual framework concerning the nature of the EU.16 He argued convincingly that the framers of the Rome Treaty rejected the option of separating the functional branches of government in favour of a polity in which the Council, Assembly, and Commission, ­representing respectively the interests of states, the people, and the European interest, combined albeit in different ways depending on the particular legislative process. Institutional balance and institutional autonomy were central to this mode of ‘mixed government’, as they had been in earlier polities in Europe.17 The division of power among different estates had the objective of balancing different interests, and was designed to prevent any single interest or estate from becoming dominant.18 It was against this model of institutional balance within a mixed polity that Majone advocated increased recourse to agencies. He acknowledged that the debate about delegation of power was ‘really a debate about the fundamental political organization of the polity, rather than merely an issue of political and administrative efficiency’.19 Majone argued that delegation of power to agencies was necessary and could be reconciled with ideals of institutional balance. It was necessary because of the credibility problem of traditional Community regulation, as exemplified by the ‘mad cow’ disease crisis. He argued that there was a ‘mismatch between highly complex regulatory tasks and available administrative instruments’,20 exacerbated by the limited administrative, financial, and cognitive resources available to the Commission,21 with the consequence that ‘a growing number of Commission officials and industry representatives feel that the situation can only be improved by creating stronger and more autonomous r­ egulatory institutions at European level’.22 Majone argued that this institutional change was consistent with the idea of institutional balance within a mixed polity by regarding such agencies as a ‘regulatory estate’ to be added to the other estates that form the EU.

4 Evolution (A)  Agency Creation: Three Phases We shall return to these matters in due course when we evaluate the agency model. Before doing so it is necessary to understand the development of the existing agencies.23 15  Ibid 254–5. 16  G Majone, ‘Delegation of Regulatory Powers in a Mixed Polity’ (2002) 8 ELJ 319. 17  Ibid 320, 323, 325–6. 18  P Craig, ‘Democracy and Rule-Making within the EC: An Empirical and Normative Assessment’ (1997) 3 ELJ 105. 19  Majone (n 16) 322. 20  Ibid 329. 21  Ibid 330. 22  Ibid 329. 23 https://europa.eu/european-union/about-eu/agencies_en; https://europa.eu/european-union/about-eu/ agencies/decentralised-agencies_en.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

156

ADMINISTRATION AND LAW

It would be wrong to imagine that the EU suddenly woke up to the importance of agencies. The reality was rather that agencies were created at different periods of time.24 The agency model was initially used in 1975 when two agencies were established. These were the European Centre for the Development of Vocational Training (Cedefop)25 and the European Foundation for the Improvement of Living and Working Conditions (Eurofound).26 It was, however, to be fifteen years before recourse was made to agencies again. This second wave of agencies that occurred in the 1990s saw the creation of ten further agencies. It began with the setting up of the European Environment Agency (EEA)27 and the European Training Foundation (ETF).28 In temporal sequence this decade also saw the establishment of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA);29 the European Medicines Agency (EMA);30 the Office for the Harmonization in the Internal Market (OHIM);31 the European Agency for Health and Safety at Work (EU-OSHA);32 the Community Plant Variety Office (CPVO);33 the Translation Centre for Bodies of the European Union (CdT);34 the European Monitoring

24  D Keleman, ‘The Politics of “Eurocratic” Structure and the New European Agencies’ (2002) 25 West European Politics 93. 25  Council Regulation 337/75/EEC of 10 February 1975 establishing a European Centre for Vocational Training [1975] OJ L39/1. 26  Council Regulation 1365/75/EEC of 26 May 1975 on the creation of a European Foundation for the Improvement of Living and Working Conditions [1975] OJ L139/1. 27  Council Regulation (EEC) 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network [1990] OJ L120/1; Regulation (EC) No 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network (Codified Version) [2009] OJ L126/13. 28  Council Regulation (EEC) 1360/90 of 7 May 1990 establishing a European Training Foundation [1990] OJ L131/1; Regulation (EC) No 1339/2008 of the European Parliament and of the Council of 16 December 2008 establishing a European Training Foundation [2008] OJ L354/82. 29  Council Regulation (EEC) 302/93 of 8 February 1993 on the establishment of a European Centre for Drugs and Drug Addiction [1993] OJ L36/1; Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction [2006] OJ L376/1. 30  Council Regulation (EEC) 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1; Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency [2004] OJ L136/1. 31  Council Regulation (EC) 40/94 of 20 December 1993 on the Community trademark [1994] OJ L11/1; Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark (Codified Version) [2009] OJ L78/1; Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark [2017] OJ L154/1. 32  Council Regulation (EC) 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work [1994] OJ L216/1. 33  Council Regulation (EC) 2100/94 of 27 July 1994 on Community plant variety rights [1994] OJ L227/1. 34  Council Regulation (EC) 2965/94 of 28 November 1994 setting up a Translation Centre for bodies of the European Union [1994] OJ L314/1.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

157

Centre for Racism and Xenophobia (EUMC);35 and the European Agency for Reconstruction (EAR).36 The new millennium saw further use of the agency model in what can be regarded as a third wave. A European Food Safety Authority (EFSA)37 was created, as was the European Maritime Safety Authority (EMSA)38 and the European Aviation Safety Agency (EASA).39 The regulation to establish the European Network and Information Security Agency (ENISA)40 was enacted in 2004, as were the regulations for the European Centre for Disease Prevention and Control (ECDC),41 what is now the European Border and Coast Guard Agency (Frontex),42 and the European Railway Agency (ERA).43 A Community Fisheries Control Agency (CFCA)44 was created in 2005, the European Chemicals Agency (ECHA) in 2006,45 the European Union Agency for Fundamental Rights (FRA) superseded the EUMC in 2007,46 and an Agency for Cooperation of Energy Regulators (ACER) was founded in 2009.47 There were also new bodies established to oversee the financial sector in the wake of the financial crisis:48 the European 35  Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [1997] OJ L151/1. 36  Council Regulation (EC) 2454/1999 of 15 November 1999 setting up a European Agency for Recon­ struction [1999] OJ L299/1. 37  Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1. 38  Regulation (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency [2002] OJ L208/1. 39  Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2008] OJ L79/1 is now the governing regulation. 40  Regulation (EC) 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Agency [2004] OJ L77/1; Regulation (EU) No 526/2013 of the European Parliament and of the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) [2013] OJ L165/41. 41  Regulation (EC) 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for Disease Prevention and Control [2004] OJ L142/1. 42  Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1; Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard [2016] OJ L251/1. 43  Regulation (EC) 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Safety Agency [2004] OJ L164/1; Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Railways [2016] OJ L138/1. 44  Council Regulation (EC) 768/2005 of 26 April 2005 establishing a Common Fisheries Control Agency [2005] OJ L128/1. 45  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency [2006] OJ L396/1. 46  Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights [2007] OJ L53/1. 47  Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators [2009] OJ L211/1. 48 https://ec.europa.eu/info/business-economy-euro/banking-and-finance/financial-supervision-and-riskmanagement/european-system-financial-supervision_en.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

158

ADMINISTRATION AND LAW

Securities and Markets Authority (ESMA);49 the European Banking Authority (EBA);50 the European Insurance and Occupational Pensions Authority (EIOPA);51 and the European Systemic Risk Board (ESRB).52 The first and second waves of agencies were with one exception based on Article 352 TFEU.53 This practice has now been modified. The Commission signalled that henceforth ‘since the regulatory agency is an instrument of implementation of a specific Community policy, it follows that the legal instrument creating it must be based on the provision of the Treaty which constitutes the specific legal basis for that policy’.54 The intent is therefore that Article 352 will only be used when it is the legal basis for the specific action. The discussion thus far has been concerned with agencies set up by Commission initiative. There are, however, agencies that owe their origin to Council action. Some of these, such as Europol,55 are relatively well known. The agreement to set up Europol dates from the Maastricht Treaty. The Europol Convention flowed from a Council act based on what was Article K3 of the TEU. It was ratified by all Member States in October 1998 and Europol became fully operational in July 1999. In 2000 CEPOL, a European Police College, came into existence.56 The European Union Satellite Centre (EUSC) was created in 2001,57 although it was the direct successor of an earlier organization with the same function. Its mission is to support EU decision-making in the context of the Common Foreign and Security Policy (CSFP), and in particular the European Security and Defence Policy, by enhancing the EU’s capability to gather space-related information to help prevent conflicts, support peacekeeping efforts, and provide effective humanitarian aid during man-made disasters. The European Institute

49  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84; https://www.esma.europa.eu/; P Schammo, ‘The European Securities and Markets Authority: Lifting the Veil on the Allocation of Powers’ (2011) 48 CMLRev 1879. 50  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) [2010] OJ L331/12. 51  Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) [2010] OJ L331/48. 52  Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board [2010] OJ L331/1. 53  Kreher (n 11). The exception was the EEA. 54  Operating Framework (n 8) 7. 55  Council Decision 2009/371/JHA of 6 April 2009 establishing a European Police Office (Europol) [2009] OJ 121/37; Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) [2016] OJ L135/53; https://www. europol.europa.eu/. 56  Council Decision 2000/820/JHA of 22 December 2000 establishing a European Police College (CEPOL) [2000] OJ L336/1; Regulation (EU) 2015/2219 of the European Parliament and of the Council of 25 November 2015 on the European Union Agency for Law Enforcement Training (CEPOL) [2015] OJ L319/1. 57  Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre [2001] OJ L200/5; Council Decision 2014/401/CFSP of 26 June 2014 on the European Union Satellite Centre [2014] OJ L188/73.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

159

for Security Studies (EUISS) dates from 2001 and was also established under the CSFP. Its mandate is to help create a common European security culture, to enrich the ­strategic debate, and systematically to promote the interests of the EU.58 Eurojust was established in 2002 to enhance cooperation between the competent authorities responsible for investigation and prosecution of cross-border and organized crime.59 In 2004 the European Defence Agency (EDA)60 was added to the list of those created by the Council, its objective being to support the Member States and the Council in their effort to improve European defence capabilities in the field of crisis management and to sustain the European Security and Defence Policy as it stands now and develops in the future.

(B) Agency Creation and Operation: 2012 Common Approach The evolution of EU agencies charted above had proceeded on a largely ad hoc basis. This was modified to some degree by the introduction of a ‘Common Approach’ in 2012, the result of a joint exercise of the Commission, European Parliament, and Council.61 The 2012 agreement resulted from the work of the inter-institutional working group (IIWG) which studied the issues from 2009 onwards. The IIWG, chaired by the Commission, addressed matters such as the role of the agencies in the EU’s institutional landscape, the creation, structure, and operation of the agencies, together with funding, budgetary, supervision, and management issues. It produced thirty-four fact sheets, which identified the existing situation, the problems, the possible solutions, and their implementation.62 These formed the basis for subsequent negotiations. The European Parliament, Council, and Commission reached an informal agreement in Strasbourg on 12 June 2012, and the Common Approach was signed on 19 July 2012. The principal issues dealt with in the Common Approach were as follows.63 There should be:64 an objective impact assessment before deciding to create a new agency; sunset or review clauses foreseeing the option of merging or closing down agencies; criteria for the choice of the seat and headquarters arrangements; and regular overall 58  Council Joint Action 2001/554/CFSP of 20 July 2001 on the establishment of a European Union Institute for Security Studies [2001] OJ L200/1; Council Decision 2014/75/CFSP of 10 February 2014 on the European Union Institute for Security Studies [2014] OJ L41/13. 59  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1; M Luchtmann and J Vervaele, ‘European Agencies for Criminal Justice and Shared Enforcement (Eurojust and the European Public Prosecutor’s Office)’ (2014) 10 Utrecht Law Review 132. 60  Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency [2004] OJ L245/17; Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency [2015] OJ L266/15. 61 http://europa.eu/rapid/press-release_IP-12-604_en.htm. 62  The materials are available at https://europa.eu/european-union/about-eu/agencies/overhaul_en. 63  Joint Statement of the European Parliament, the Council of the EU and the European Commission on Decentralised Agencies, 19 July 2012, https://europa.eu/european-union/sites/europaeu/files/docs/body/ joint_statement_and_common_approach_2012_en.pdf. 64  Ibid [2]–[9].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

160

ADMINISTRATION AND LAW

evaluations of the agencies’ programmes/activities, including the development of key performance indicators, a multi-annual programming to be linked with multi-annual resource planning, a stronger link between actions performed by the agency and human and financial resources, a streamlined governance structure, and making it clear who does what. There were also important provisions concerning the structure of decision-making in agencies. Thus, the Common Approach embodied a template for the composition of agency management boards. It recommended that there should be one representative from each Member State, two from the Commission, where appropriate one from the European Parliament, and where appropriate a limited number of stakeholder representatives.65 The Common Approach recognized the centrality of the agency director, who was and should be accountable for agency performance. Appointments should therefore be made transparently, and expertise should be central to the appointment process.66 Agencies should adopt annual work programmes and multi-annual strategic programmes; the Commission should be consulted and proffer advice on both documents; the European Parliament should also be consulted, although the outcome of the  exchange of views was not binding on the agency.67 Agency accountability was conceptualized in terms of reporting requirements, internal and external audit, agency ­evaluation, an alert warning system, and transparency, including in this respect ­relations with stakeholders.68 The Commission was accorded responsibility for taking forward the Common Approach, and it published a number of reports on progress in this respect.69 We shall consider the significance of the 2012 Common Approach in the ensuing discussion. Suffice it to say for the present, that while it was helpful in instilling some degree of transversal order into the role of EU agencies, there were also important issues that were not addressed, none more significant than the scope of power that could be accorded to agencies.

5 Classification The preceding analysis reveals the variety of EU agencies. This has prompted attempts at classification, which can be of assistance subject to the following caveat. We should never lose sight of the fact that taxonomy is of instrumental value. It is there to cast light on differences between agencies. It is not an end in itself. We should not allow the desire for ‘order’ to lead to the imposition of a taxonomic Procrustean frame that forces agencies into categories that are ill-fitting. There is, moreover, a tension between 65  Ibid [10]–[13]. 66  Ibid [14]–[19]. 67  Ibid [27]–[29]. 68  Ibid [46]–[66]. 69  Roadmap on the Follow-Up to the Common Approach on EU Decentralised Agencies, 2012; Commission Progress Report on the Implementation of the Common Approach, 2013; Progress Report on the Implementation of the Common Approach on EU Decentralised Agencies, COM(2015) 179 final, https:// europa.eu/european-union/about-eu/agencies/overhaul_en.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

161

g­ enerality and specificity. The more general is the classification then the greater the likelihood that all can be fitted into the category thus fashioned, with the consequential danger that the category loses its utility by grouping together agencies that are significantly different. There are similar dangers in veering too far in the opposite direction, since categories that are too specific can convey a wilderness of single instances, downplaying commonalities at the expense of differences that may be of little significance to the functioning of the relevant body. With these cautionary notes in mind we can spend a little time reflecting on taxonomy.

(A)  The Commission View It is fitting to begin with the official view put forward by the Commission. This has altered over time, and it is therefore necessary to disaggregate the different attempts at classification. (i)  The 2002 Schema The Commission’s initial classification dates from 2002. There are satisfactory and unsatisfactory elements in the Commission’s classification. It is satisfactory in that the Commission distinguishes between executive and regulatory agencies, albeit stressing that some existing agencies do not fall within either category.70 Executive agencies connote those bodies discussed earlier that were set up in post-Santer Commission reforms.71 These led to the creation of a new breed of executive agencies that would be responsible for managing programmes where the Commission had direct administrative responsibility for implementation. These agencies are subject to a specific framework Regulation,72 they are not intended to be independent and are subject to close supervision by the Commission. The agencies listed in the previous section are not executive agencies. The Commission classification is unsatisfactory when we move beyond the basic distinction between executive and regulatory agencies and consider the meaning accorded to the term regulatory agency. The latter agencies are ‘required to be actively involved in the executive function by enacting instruments which help to regulate a specific sector’ and the ‘majority of them are intended to make such regulation more consistent and effective by combining and networking at Community level activities which are initially a matter for the Member States’.73 The Commission properly recognizes that the existing ‘regulatory agencies’ perform different functions. Some, such as the European Medicines Evaluation Agency (EMEA) and the EFSA, provide technical and scientific assistance that is the basis for a decision made by the Commission; ­others, such as EMSA, provide inspection reports to enable the Commission to fulfil its 70  Operating Framework (n 8) 3–4. 71  Ch 3. 72  Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1. 73  Operating Framework (n 8) 4.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

162

ADMINISTRATION AND LAW

role as guardian of EU law; yet others, such as OHIM, CPVO, and EASA, can make individual decisions that are legally binding on third parties.74 In the light of this the Commission states that a distinction should be drawn within the category of r­ egulatory agencies. The distinction is between decision-making agencies, being those empowered to enact legal instruments binding on third parties, and executive agencies, being those with no independent power of decision in relation to third parties, but which perform other regulatory tasks.75 This labelling is confusing. We are presented with an initial distinction between executive and regulatory agencies, followed by differentiation within the latter ­category between decision-making and executive agencies. It is, moreover, as Majone forcefully points out confusing to have a category of regulatory agency and then to delineate within that category a group of bodies that do not have formal regulatory powers, whether of individualized decision-making or rulemaking.76 The instrumental use made of the distinction between decision-making and executive agencies can, as will be seen later, also be questioned, insofar as it informs matters such as the role of the Commission in the choice of agency director. (ii)  The 2008 and 2012 Schema The Commission modified its taxonomy in its 2008 paper on EU agencies, with the classification turning on the primary mission entrusted to the agency.77 Based on this criterion, the Commission distinguished between: agencies adopting individual decisions, which were legally binding on third parties, such as OHIM, EMA, EASA, and ECHA; agencies providing assistance to the Commission and, where necessary, to the Member States, in the form of technical or scientific advice and/or inspection reports, such as the ECDC, EMSA, EFSA, ERA, and EMA; agencies that were charged with operational activities, such as Frontex, Eurojust, Europol, and Cepol; and agencies with responsibility for gathering and analysing information and for networking, such as the EEA, EFSA, EU-OSHA, and ENISA. The Common Approach adopted in 2012 said nothing directly about classification, reflecting in this respect the stance taken by the IIWG paper on definition and classification of European regulatory agency.78 The IIWG paper noted the approach taken by the Commission in 2008, and took the view that classification could be predicated on different criteria, such as time of creation, policy area, powers, and the like. It eschewed any further attempt at classification, save for the fact of stating that the term ‘­regulatory’ could be misleading, ‘in the sense that, while agencies can have regulatory functions, they do not create and set new norms in the relevant sector’, this being distinct from

74  Ibid 4. 75  Ibid 8. 76 G Majone, ‘Strategy of Regulatory Reform’ in G della Cananea (ed), European Regulatory Agencies (ISUPE Press, 2004) 54. 77  European Agencies—The Way Forward, COM(2008) 135 final. 78  Analytical Fiche Nr 1, https://europa.eu/european-union/sites/europaeu/files/docs/body/fiche_1_sent_ to_ep_cons_2010-12-15_en.pdf.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

163

the fact that a few agencies could adopt individual decisions ‘in specific areas where a defined technical expertise is required, under clearly and precisely defined conditions’.79

(B)  An Alternative View The academic literature contains various taxonomies to capture the agencies that have been created under the Community Pillar.80 My own view is as follows. (i)  Regulatory Agencies The term regulatory agency is normally used to refer to bodies that have decisionmaking powers, which can be exercised either through individualized adjudication or through rulemaking. This is how the term is used in relation to the classic regulatory agencies in the US, and many national regulatory agencies conform to this model. Such agencies exercise discretionary power within their designated areas, and agency policy can be developed through either adjudication or rulemaking. The terminology used to describe agencies in the EU does not have to be tied to that used in nation states. This can be accepted, but does not diminish the point being made here. None of the EU agencies created thus far are regulatory agencies in the way that the term is used in common legal and political parlance, the principal reason being that there are legal constraints to the delegation of discretionary power to agencies. The EU agencies might have regulatory input, even though they do not exercise discretionary powers through adjudication and rulemaking. This too can be acknowledged, but does not thereby lessen the contrast between those bodies that do and do not have formal dispositive powers that can be exercised at their own volition, whether through adjudication or rulemaking. It should, nonetheless, be emphasized that it is now increasingly common for EU agencies to be given strong quasi-regulatory powers in the manner set out later. It should also be emphasized that the preceding limit on agency power must now be seen in the light of the ESMA ruling,81 discussed later, where the CJEU held that an agency

79  Ibid 3. 80  E Chiti, ‘The Emergence of a Community Administration: The Case of European Agencies’ (2000) 37 CMLRev 309, 311–17; E Chiti, ‘Decentralisation and Integration into the Community Administrations: A New Perspective on European Agencies’ (2004) 10 ELJ 402, 431–6; D Geradin and N Petit, ‘The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform’, Jean Monnet Working Paper 01/04, NYU School of Law, 43–50; S Griller and A Orator, ‘Everything under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine’ (2010) 35 ELRev 3; E Vos, ‘EU Agencies: Features, Framework and Future’, Maastricht Faculty of Law Working Paper 2013/3; M Everson, C Monda, and E Vos (eds), European Agencies in between Institutions and Member States (Wolters Kluwer, 2014); M Busuioc, M Gronleer, and J Trondal (eds), The Agency Phenomenon in the European Union (Manchester University Press, 2015); M Egeberg, J Trondal, and N Vestlund, ‘The Quest for Order: Unravelling the Relationship between the European Commission and European Union Agencies’ (2015) 22 JEPP 609; M Broberg and J Trondal, ‘Agencification of the European Union Administration: Connecting the Dots’, TARN Working Paper 1/2016. 81  Case C-270/12 UK v Council and Parliament, EU:C:2014:18.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

164

ADMINISTRATION AND LAW

could make acts of general application, provided the discretion accorded to the agency was sufficiently circumscribed and constrained, and provided also that the agency was amenable to judicial review, (ii)  Decision-Making Agencies There are, however, decision-making agencies, which have the power to make individualized decisions that are binding on third parties. OHIM, CPVO, EASA, EBA, ESMA, and EIOPA fall within this category. The official rationale for according this type of decisional power is that in these areas a single public interest predominates and the agency is not called on to ‘arbitrate on conflicting public interests, exercise any powers of political appraisal or conduct complex economic assessments’.82 Whether this accords with reality or not the fact that the rationale is framed in these terms, ­coupled with the repeated injunction that such agencies cannot adopt ‘legislative measures of general application’, or be ‘delegated responsibilities for which the EC Treaty has conferred direct power of decision on the Commission’,83 serves to emphasize the ­limits of the powers accorded to such agencies and the difference between them and classic regulatory agencies. (iii)  Quasi-Regulatory Agencies The EU also has a number of quasi-regulatory agencies with strong recommendatory power.84 This term is admittedly inelegant, but it captures reasonably the powers accorded to certain agencies. The EASA provides a good example of an agency accorded this type of power in the context of air safety. The EASA has actual decisional power in individual cases concerning airworthiness and environmental certification, hence its inclusion in the previous category.85 Its rulemaking role is less well known, but equally important. It is the EASA that in effect drafts the detailed implementing rules passed pursuant to the basic agency Regulation. It has elaborate rulemaking procedures, discussed later,86 the result of which will be a draft set out as a Commission implementing regulation. This requires approval from the Commission, which will, however, often have little if any input into these complex rules. The EASA will, in addition, publish codes, as it is empowered to do, that are in effect complex, highly detailed regulatory provisions regarded as binding by the industry, even though they do not have the force of law.87 The term quasi-regulatory agency is also apt for bodies such as the EMA, EFSA, and the EMSA. They make recommendations to the Commission, which has the final power of decision. The Commission is not bound by the recommendations thus made, but the views proffered by the relevant agency will nonetheless carry considerable

82  Operating Framework (n 8) 8; Analytical Fiche Nr 1 (n 78). 83  Operating Framework (n 8) 8. 84  E Chiti, ‘European Agencies’ Rulemaking: Powers, Procedures and Assessment’ (2013) 19 ELJ 93. 85  Reg 216/2008 (n 39) Art 18. 86  See below, 187. 87  The two main codes issued by the EASA are 279 and 239 pages respectively.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

165

Agencies

weight, more particularly because they will commonly be concerned with technical and scientific matters. This can be reflected in the language of the Regulation, as in the context of the EMEA.88 The willingness to accord agencies with strong quasi-regulatory power is most apparent in relation to the new agencies established in the aftermath of the banking crisis. What is notable about the strategy in this area is the extent to which the primary legislative acts make clear that responsibility for delegated acts resides with the agency, subject to formal endorsement by the Commission. The relevant regulations are similar and hence that dealing with the EBA can be taken by way of example.89 The EBA is given a range of tasks designed to prevent a further crisis in the banking sector.90 It is empowered to make individual decisions in certain instances.91 It is also authorized to draft regulatory standards. The schema is that where the primary regulation delegates power to the Commission to make delegated acts pursuant to Article 290 TFEU, it is the EBA that drafts these acts, which are then endorsed by the Commission, subject to the possibility of veto by the Council or the European Parliament in accordance with Article 290 TFEU.92 The recitals to the Regulation make it clear that the Commission should amend the draft produced by the EBA only in ‘very restricted and ­extraordinary circumstances’, the rationale being that the EBA has the expertise within this area.93 These sentiments are reflected in the Regulation. The Commission is only able to adopt a draft delegated act itself if the EBA has failed to do so within the time specified in the legislative act.94 The Commission must also give a reasoned explanation for departure from the EBA draft rule and cannot make any such change without discussion with the EBA.95 The importance of such agencies in the decision-making process has been recognized by the EU Courts. This story will be told fully later.96 Suffice it to say for the present that they have held that where the Commission departs from the agency recommendation it will normally have to provide good reasons for doing so, and its decision will be annulled if the reasons do not suffice. The significance of the agencies’ work is also evidenced by the courts’ willingness to review their reasoning and findings, notwithstanding the fact that they do not have formal decisional powers of their own. (iv)  Information and Coordination Agencies There are also a significant number of agencies whose main tasks are the provision of information and coordination. Most EU agencies, including those considered earlier, perform some functions of this nature, but for many agencies it is their principal function. The precise tasks performed by these information and coordination agencies vary, but there are common features. Their role will normally be to furnish information and analysis to the Commission, Member States, and related actors whether at the public or private level; to assist the Commission where necessary in the formulation of 88  Reg 2309/93 (n 30) Arts 10, 32. 89  Reg 1093/2010 (n 50). 91  Ibid Arts 17(6), 18(3)–(4), 19(3)–(4). 92  Ibid Arts 10, 13. 94  Ibid Art 10(3). 95  Ibid Art 10(1). 96  See below, 176–7.

90  Ibid Art 1(5). 93  Ibid rec 23.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

166

ADMINISTRATION AND LAW

EU policy and legislation; and to coordinate and interact with other players concerned with the relevant subject matter. What follows are examples of EU agencies that ­perform these functions. The EEA is a prominent example of such an agency. Its principal tasks are the provision of information to enable the EU and the Member States to take the requisite measures to protect the environment, assess the results of such measures, and ensure that the public is properly informed about the state of the environment.97 EU-OSHA is another second-generation agency that has similar features. In order to encourage improvements in the safety and health of workers the agency is charged with providing the EU, Member States, the social partners, and those involved in the field with technical, scientific, and economic information on workplace health and safety.98 The information is intended to identify risks and good practices. The agency is also to supply both the Union and Member States with such information as they require to implement judicious and effective policies to protect workers’ health and safety, and more particularly to provide such information to the Commission when it is preparing legislation in this area.99 In order to better attain its goals EU-OSHA is instructed to set up a network comprising the main elements of national information networks, including national social partners’ organizations, national focal points, and what are called future topic centres. Member States are obliged to inform the agency of the main ­components of their national health and safety information networks, including any institution that could contribute to the work of the agency.100 The EMSA is a more recent example of an agency performing similar tasks within its field. It was established because there was a need for an expert body to monitor implementation of EU policies on maritime safety and pollution and judge the effectiveness of such policies. To this end the EMSA is the technical body charged with providing the EU and Member States with the necessary means to act effectively to enhance overall maritime safety and prevent pollution by ships, and to assist the Commission in updating and developing EU legislation in these areas. The EMSA is also accorded the more specific task of identifying ships that breach the relevant rules concerning safety and pollution in order that the Commission and the Member States can take appropriate enforcement action.101 ENISA is another prominent agency whose principal functions concern the provision of information and coordination. It was established because of the increased importance of communication networks and information systems to modern economic and social development. The security of such networks is important, more especially given that this can be jeopardized by accident, attack, and mistake. ENISA is therefore charged with provision of information concerning such risks and analysing ways of dealing with them. 97  Reg 401/2009 (n 27) Arts 1–2. 98  Reg 2062/94 (n 32) Arts 2, 3(1)(a)–(d), as amended by Council Regulation (EC) 1112/2005 of 24 June 2005 amending Regulation 2062/94 establishing a European agency for safety and health at work [2005] OJ L184/5. 99  Ibid Art 3(1)(e). 100  Ibid Arts 3(1)(f), 4. 101  Reg 1406/2002 (n 38) Art 2(f).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

167

The discussion thus far has focused on information and coordination agencies established under what was, prior to the Lisbon Treaty, the Community Pillar, Pillar 1, normally at the behest of the Commission. The agencies established by the Council under what were Pillars 2 and 3 fulfilled similar functions. Europol and Eurojust were the most important agencies established by the Council acting under what was Pillar 3 (Justice and Home Affairs (JHA)/ Police and Judicial Cooperation in Criminal Matters (PJCC)), and they too have many important roles in relation to information and ­coordination. Thus the objectives of Europol are to enhance effectiveness and ­cooperation between Member States in dealing with offences that come within Europol’s remit.102 It has important tasks concerning the collection and provision of information.103 The centrality of information collation to Europol’s tasks is further emphasized by the importance given to the computerized information system that Europol creates and maintains.104 Coordination and cooperation between Europol and national police forces is also accorded a high prominence and the Europol Convention tries to ensure that this operates as efficiently as possible.105 The same emphasis on information, cooperation, and coordination is apparent in the remit given to Eurojust. It has competence in relation to crimes that fall within Europol’s jurisdiction and other crimes specifically listed.106 Eurojust’s objectives are to  stimulate and improve coordination between the competent authorities of the Member States concerned with investigation and prosecution of these crimes; to improve ­cooperation between such authorities by facilitating execution of international mutual legal assistance and implementation of extradition requests; and otherwise to support Member State authorities in order to render their prosecutions and investigations more effective.107

6 Limits There are, as seen, an increasing number of EU quasi-regulatory agencies, where the agency de facto drafts the detailed delegated regulation and where there are ­constraints on the extent to which the Commission can interfere with this draft. The EU does not yet possess regulatory agencies as that term is commonly used in national parlance. The principal legal constraint comes from the Meroni principle. It will be seen that there are also political limits to the types of power that the Commission is willing to accord to agencies, although the nature of those limits may well be changing.108

102  Dec 2009/371 (n 55) Arts 3, 5. 103  Ibid Art 5. 104  Ibid Arts 10–13. 105  Ibid Arts 6, 8. 106  Dec 2002/187/JHA (n 59) Art 4. 107  Ibid Art 3. 108  M Chamon, EU Agencies: Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press, 2016).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

168

ADMINISTRATION AND LAW

(A)  Legal Limits (i) Meroni The Meroni case109 involved a challenge by the applicant company to a decision requiring it to pay the Imported Ferrous Scrap Equalization Fund a sum of money. The applicant argued that the particular decision was vitiated because of a failure to state adequate reasons. It further contended that the more general decision underlying the particular decision was unlawful because it entailed a delegation of power that was impermissible under the Treaty. The general decision provided that the operation of the financial arrangements for the ferrous scrap regime should be dealt with by the Joint Bureau of Ferrous Scrap Consumers and the Imported Scrap Equalization Fund, bodies with legal personality under private law. The ECJ decided that the contested decision entailed a true delegation of power found and then reasoned as follows. It held that the delegation was unlawful because a delegating authority could not confer on another body powers different from those possessed by the delegator under the Treaty.110 If the High Authority had exercised the power itself then it would have been subject to Treaty rules concerning a duty to give reasons, publish data, and the like. The contested decision did not make the agencies to which power had been delegated subject to the same constraints, such that in reality those agencies had more extensive power than those held by the High Authority under the Treaty. The ECJ also held that it was not possible to delegate power involving a wide margin of discretion. The Court accepted that it was possible for the High Authority to delegate certain power under the ECSC, but imposed limits in this respect.111 The consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy. A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility.

This rationale for limiting the type of power that could be delegated was reinforced by the concept of institutional balance.112 The ECJ held that Article 3 ECSC, which contained eight diverse objectives for the ECSC, not all of which could be simultaneously pursued, was binding not only on the High Authority, but also on the institutions of the Community within the limits of their respective powers. It followed, said the ECJ, from Article 3 that there could be seen in the balance of powers that was characteristic of the

109  Case 9/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority [1958] ECR 133. 110  Ibid 149–50. 111  Ibid 152. 112  Ibid 152.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

169

institutional structure of the Community a fundamental guarantee granted by the Treaty in particular to the undertakings to which it applied. To delegate a discretionary power, ‘by entrusting it to bodies other than those which the Treaty has established to  effect and supervise the exercise of such power each within the limits of its own authority, would render that guarantee ineffective’.113 The ECJ concluded that the power ­delegated to the agencies in the instant case contained significant discretionary power that was not bounded by objective criteria and hence was not compatible with the Treaty. The Meroni principle has stood for sixty years as a constitutional limit to delegation.114 The EU Courts have been willing to uphold delegations of power when they were felt to be warranted, but they have done so largely from within the framework of the Meroni reasoning, rather than straying outside it.115 Thus in Tralli116 the ECJ held that a delegation of power within the organs of the European Central Bank (ECB) to decide on rules as to staff management and contracts was compatible with the Meroni principle. More interestingly in DIR International117 the CFI was willing, in the context of the MEDIA programme designed to enhance the European audiovisual industry, to uphold a delegation of power by the Commission to a private body (EFDO) that decided on funding applications, on the ground that the agreement between EFDO and the Commission in effect made EFDO’s decisions subject to Commission agreement, hence imputable to the Commission and therefore subject to judicial review. The Meroni principle has, moreover, been indirectly reinforced by Article 290 TFEU. It stipulates that for delegation of power to the Commission to be lawful, the legislative act must lay down the essential elements of the area. The Commission cannot make discretionary policy choices in the form of delegated acts. The same stricture applies a fortiori to exercise of analogous power by agencies, as is apparent from the regulations governing the financial supervisory authorities.118 (ii) Romano Romano was decided in 1980.119 The Administrative Commission was established ­pursuant to Regulation 1408/71 dealing with social security payments. Its duties were articulated in Article 81 of the Regulation. They included dealing with administrative questions and questions of interpretation arising from the Regulation and subsequent Regulations, or from any agreement or arrangement concluded thereunder, without 113  Ibid 152. 114  Cases C-154–155/04 The Queen, on the application of Alliance for Natural Health and Nutri-link Ltd v Secretary of State for Health [2005] ECR I-6451, [90]. 115  See, eg, Case C-147/13 Spain v Council, EU:C:2015:299 [62]–[63]; Case C-146/13 Spain v European Parliament and the Council, EU:C:2015:298, [84]–[87]. 116  Case C-301/02 P Tralli v ECB [2005] ECR I-4071, [42]–[52]. 117  Cases T-369/94 and 85/95 DIR International Film Srl and others v Commission [1998] ECR II-357, [52]– [53]. The case was reversed on appeal on different grounds, Case C-164/98 P DIR International Film Srl and others v Commission [2000] ECR I-447. 118  See, eg, Reg 1093/2010 (n 50) Art 10. 119  Case 98/80 Romano v Institut national d’assurance maladie-invalidité, EU:C:1981:104.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

170

ADMINISTRATION AND LAW

prejudice to the right of the authorities, institutions, and persons concerned to have recourse to the procedures and tribunals provided for by the legislation of Member States, by the Regulation, or by the Treaty. The ECJ held that it followed from Article 155 EEC and the judicial system created by the Treaty, in particular by Articles 173 and 177 EEC, that a body such as the Administrative Commission could not be empowered by the Council to adopt acts having the force of law. Whilst a decision of the Administrative Commission might provide an aid to social security institutions responsible for applying Community law, it was not of such a nature as to require those institutions to use certain methods or adopt certain interpretations when they applied the Community rules. A decision of the Administrative Commission did not, therefore, bind national courts. The scope of the Romano ruling, and its relationship with Meroni, continue to be debated in the academic literature.120 Part of the difficulty in this respect flows from  the  fact that the reasoning in Romano denying legal force to acts of the Administrative Commission, drew in part on Article 155 EEC, the principal Treaty provision ­empowering the Commission, and in part from Articles 173 and 177 EEC, which dealt with direct and indirect review by the ECJ. To what extent the infirmity perceived by the ECJ flowed from a conjunction of these considerations, given that at the time there was no express provision for judicial review of a body such as the Administrative Commission, is not clear from the Court’s ruling. The judgment was, however, read narrowly in the ESMA case to which we now turn. (iii) ESMA It is, however, clear from UK v Council121 that power can be conferred directly on an EU agency. ESMA had been given power by a legislative act to take action in relation to short selling on stock in certain defined circumstances. The UK argued that this was unlawful on four grounds, three of which are relevant to the present discussion. First, the UK contended that the direct conferral of power in Article 28 of Regulation 236/2012122 infringed the Meroni principle,123 which limits the discretion that can be given to agencies. The CJEU rejected this argument, stating that the powers exercised by ESMA pursuant to Article 28 were sufficiently delineated and precise so as not to offend the Meroni principle. The CJEU took into account the following factors:124 that the bodies in question in Meroni were entities governed by private law, whereas ESMA 120  Chamon (n 108) 253–6, for discussion of the contending views. 121  Case C-270/12 UK v Council and Parliament (n 81); A Adamski, ‘The ESMA Doctrine: A Constitutional Revolution and the Economics of Delegation’ (2014) 39 ELRev 812; M Chamon, ‘The Empowerment of Agencies under the Meroni Doctrine and Article 114 TFEU: Comment on United Kingdom v Parliament and Council (Short-selling) and the proposed Single Resolution Mechanism’ (2014) 39 ELRev 380; C-F Bergström, ‘Shaping the New System for Delegation of Powers to EU Agencies: UK v Council and Parliament (Short Selling)’ (2015) 52 CMLRev 219; M de Bellis, ‘Procedural Rule-Making of European Supervisory Agencies (ESAs): An Effective Tool for Legitimacy?’, TARN Working Paper 12/2017. 122  Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps [2012] OJ L86/1. 123  Case 9/56 (n 109). 124  Case C-270/12 (n 81) [41]–[55].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

171

was an EU entity, created by the EU legislature; that the contested provision did not  confer any autonomous power on ESMA that went beyond the bounds of the ­regulatory framework established by the ESMA Regulation; and that unlike the case of the powers delegated to the bodies concerned in Meroni, the exercise of the powers under Article 28 of Regulation 236/2012 were circumscribed by various conditions and criteria which limited ESMA’s discretion. These limits were both substantive, through criteria that specified in detail when ESMA could take the contested action; and ­procedural, by detailing the bodies that had to be consulted when such action was taken. Secondly, the UK contended that the grant of authority to ESMA under Article 28 of Regulation 236/2012 to adopt quasi-legislative measures of general application was inconsistent with Romano. The CJEU disagreed. It acknowledged that ESMA was required, under Article 28, ‘in strictly circumscribed circumstances, to adopt measures of general application’,125 but held that this was not inconsistent with Romano: the institutional framework in the TFEU, in particular Article 263(1) TFEU and Article 277 TFEU, expressly permitted EU agencies to adopt acts of general application, with the consequence that it could not ‘be inferred from Romano that the delegation of powers to a body such as ESMA is governed by conditions other than those set out in Meroni v High Authority’.126 Thirdly, the UK argued that Articles 290 and 291 TFEU circumscribed the circumstances in which powers could be given to the Commission, and that the Council and European Parliament had no authority under the Treaties to delegate powers such as those in the instant case to an EU agency. The CJEU acknowledged that Article 28 of Regulation 236/2012 delegated power not to the Commission, but to an EU agency. This required the CJEU to decide whether Articles 290 and 291 were intended to establish ‘a single legal framework under which certain delegated and executive powers may be attributed solely to the Commission or whether other systems for the delegation of such powers to Union bodies, offices or agencies may be contemplated by the Union legislature.’127 The Court noted that while the Treaties contained no express provision allowing this, certain Treaty provisions presumed that such a possibility existed. Agencies were subject to judicial review via Articles 263, 265, and 267 TFEU, which were applicable to EU bodies, offices, and agencies that were given powers to adopt legally binding measures on natural or legal persons.128 The power accorded to ESMA in the present case must, said the CJEU, be seen in the context of the overall purpose of the regulatory scheme to deal with integration of financial markets and prevent the risk of financial contagion. This required that ESMA have power to impose temporary restrictions on the short selling of certain stocks, in  order to prevent an uncontrolled fall in the price of those instruments.129 This 125  Ibid [64]. 126  Ibid [66]. 127  Ibid [78]. 128  Ibid [80]–[81]. The CJEU cited by way of example the ECA, the EMA, the OHIM, the CPVO, and the EASA. 129  Ibid [84]–[85].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

172

ADMINISTRATION AND LAW

‘­conferral of powers’130 did not therefore correspond to the situations in Articles 290 and 291, nor did it undermine them. (iv) Conclusion The ESMA judgment received a mixed reception, with support from some, and criticism from others, the latter being directed, inter alia, at the impact of the ruling on the inter-institutional balance of power in the EU.131 My own view is, however, more positive for the following two reasons. First, there was perforce some measure of discretion accorded to ESMA in the ­determination of when Article 28 of the Regulation should be applied. The CJEU did not, however, deny this, but rather emphasized that the discretion was closely circumscribed substantively, and subject to procedural safeguards, the conclusion being that it was consistent with Meroni. The fact that the EU legislature can delegate power directly to agencies to adopt legal acts, which are not only binding on those to whom they are addressed, but are also binding in general, is therefore subject to the caveat that such delegation to agencies is only permissible if the scope of power thus delegated is circumscribed by ‘criteria and conditions’, so as to ensure that the powers are sufficiently delineated and subject to judicial review, thereby preserving, in this respect, the principle in Meroni.132 Secondly, the meaning and application of the concept of inter-institutional balance is contestable. It is also dynamic, not static, in the sense that the meaning can alter over time. The salient point for present purposes is that the European Supervisory Authorities (ESAs), such as ESMA, reflected a conscious choice by the EU legislature to create agencies with greater power than hitherto, and to constrain the extent to which the Commission could interfere with regulations recommended by the agencies. The CJEU acknowledged that the power accorded to ESMA in Article 28 fell outside the confines of Articles 290 and 291 TFEU. The decision by the EU legislature to vest ESMA with such power directly, nonetheless, cohered with the legislature’s overall vision of the place of such agencies in the schema of EU decision-making. The CJEU rightly concluded that this was acceptable, given that ESMA was amenable to review and that its power was substantively and procedurally circumscribed in the manner adumbrated above.

(B)  Political Limits Meroni not only continues to have a pervasive influence over legal doctrine, it has also shaped the political discourse. This is self-evidently so in the formal sense that Meroni is the oft-cited reason given for the limited powers that can be accorded to agencies. Thus, the background papers prepared by the IIWG for the 2012 Common Approach were predicated on the legal limits in Meroni.133 It should, however, be recognized that 130  Ibid [83]. 131  See n 121. 132  Bergström (n 121) 236–7, 240. 133  Creation of Agencies, Analytical Fiche Nr 2, https://europa.eu/european-union/sites/europaeu/files/ docs/body/fiche_2_sent_to_ep_cons_2010-12-15_en.pdf, 2.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

173

in certain political quarters there is a desire to preserve the limits of delegation laid down by the EU Courts for reasons that go beyond the formal authority of judicial doctrine. Consider in this respect the Commission’s perspective. It may well be true, as Majone relates,134 that there are tensions within the Commission, with certain members ­wishing to move beyond Meroni and create true regulatory agencies. The official Commission view as laid down in its 2002 Communication on Regulatory Agencies was nonetheless premised on the judicial status quo, complete with the limit on delegation of discretionary power that constitutes the block to the creation of real regulatory agencies. This position was reiterated in the Commission’s 2005 proposal for a Draft Interinstitutional Agreement concerning regulatory agencies.135 The 2002 document revealed the Commission’s rationale for preserving this limit that transcended the ­dictates of formal law. The Commission acknowledged the virtues of independence, credibility, and ­expertise as reasons for agency creation, combined with the fact that it enabled the Commission to concentrate on its core policymaking functions. This was, however, balanced by repeated references to the need to preserve and reinforce ‘the unity and integrity of the executive function’ to ensure ‘that it continues to be vested in the chief of the Commission if the latter is to have the required responsibility vis-à-vis Europe’s citizens, the Member States and the other institutions’.136 The participation of agencies should therefore be ‘organised in a way which is consistent and in balance with the unity and integrity of the executive function and the Commission’s ensuing responsibilities’.137 The same language recurs later in the Communication, when the Commission considers the important issue of the composition of agency boards.138 The emphasis placed on the ‘unity and integrity of the executive function’ and its location in the President of the Commission was not fortuitous given the timing of the Communication. It was issued in 2002 during the deliberations in the Convention on the Future of Europe. The most divisive issue in the Convention deliberations concerned the location of executive power and whether this should reside in the Commission, or whether it should be divided between the Commission and European Council. The Commission lost that battle since the Constitutional Treaty and the Lisbon Treaty embody a regime of shared executive power.139 The Commission’s attachment to the ‘unity and integrity of the executive function’ with this continuing to be located in the Commission and its President nonetheless remained strong. The executive function with which it was vested included in principle all that occurred after passage of primary regulations, directives, etc. It was this conception that informed its opposition to management and regulatory committees, and

134  Majone (n 16). 135  Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, COM(2005) 59 final, Art 5(1). The Draft was withdrawn in 2009, [2009] OJ C71/17. 136  Operating Framework (n 8) 1. 137  Ibid 1. 138  Ibid 9. 139  P Craig, ‘European Governance: Executive and Administrative Powers under the New Constitutional Settlement’ (2005) 3 I-CON 407.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

174

ADMINISTRATION AND LAW

its desire to replace them with other controls that might satisfy the Council and European Parliament, while leaving the Commission more autonomous in the making of legislative norms of a secondary nature.140 It is this same conception of the executive function that serves to explain its approach to agencies. It could accept agencies, such as OHIM and CPVO, with individual decision-making power in discrete fields. It could embrace information and coordination agencies, where it continued to have the final say. It was reluctant to create real ­regulatory agencies exercising discretionary power through adjudication and rulemaking, since if such power could be delegated then the Commission’s sense of the unity and integrity of the executive function vested in it would be undermined. This would be more especially so given that the agencies would have a degree of independence and that Member States would continue to exert considerable influence through membership of the administrative boards. The Meroni principle will be evaluated in detail when we consider the possibility of creating real regulatory agencies within the EU. Suffice it to say for the present that more recent developments reveal that the line between real regulatory agencies and quasi-regulatory agencies is becoming increasingly thin. The powers accorded to the EASA have been taken as the model for the even stronger quasi-regulatory powers accorded to the agencies established post the financial crisis. The reality is that these agencies draft the detailed regulatory instruments and although they have to be endorsed by the Commission there are strict legal and political constraints on the extent to which the Commission can diverge from the agency’s view.

7  Legal Control and Accountability (A)  The Agency Regulation The natural place to begin with respect to legal accountability is the regulation through which the agency is created. There are not surprisingly points of similarity and points of difference in these regulations. They are similar in that all agencies are given legal personality. The governing Regulation also makes provision for contractual and non-contractual liability. The former is determined by the law applicable to the contract and the relevant provisions will commonly provide that the CJEU has jurisdiction to give judgment pursuant to an arbitration clause contained in a contract concluded by the agency. In relation to non-contractual liability, the standard format is for the Regulation to replicate Article 340(2) TFEU within the body of the relevant Regulation: the agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or its servants in the performance of their duties.

140  Ch 5.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

175

The differences between the agency regulations are most marked in relation to l­ egality review. There is no standard provision akin to that concerning non-contractual liability. Some Regulations, such as those dealing with OHIM and EASA, contain detailed and explicit provisions on legality review, with a system of internal appeal to a Board of Appeals followed by legality review by the EU Courts.141 Other Regulations, such as that applicable to the EU Agency for Fundamental Rights, contain no provision for internal appeal, but state that the CJEU shall have jurisdiction in actions brought against the Agency under Article 263 TFEU.142 The format used in relation to the ECDC is different yet again, enabling a reference to be made to the Commission concerning the legality of the Centre’s action, explicitly backed by the possibility of recourse to the EU Courts to annul the Commission decision.143 The approach taken in the EU-OSHA Regulation is similar, in the sense that it embodies a system of legality review by the Commission, the difference being that there is no explicit reference to further recourse to the CJEU,144 although the EU Courts would have little difficulty in reading this into the Regulation, since the Commission decision on legality would be an act with legal effects and hence reviewable. In some other instances, such as the EMEA, the Regulation contains no mention of legality review, although this is ­explicable because it is the Commission that makes the final decision and hence it can be reviewed in the normal manner. The regulations in relation to some other agencies, such as EMSA, ENISA, ERA, and CFCA, simply say nothing about legality review. The provisions pertaining to legal accountability in the agencies established by the Council are similarly diverse. It is common to find provisions concerning contractual liability, less common to find rules about non-contractual liability, and uncommon to find anything that relates to legality review.

(B)  The Treaty Given the diversity in the governing regulations pertaining to individual agencies, it is important to consider how far the general Treaty provisions concerning legality review can be used against agencies. Prior to the Lisbon Treaty Article 230(1) EC did not contain any explicit mention of agencies or other bodies among the list of those subject to review. The CFI nonetheless filled this gap in Sogelma.145 The CFI held that a Community agency was subject to judicial review, and relied on the principle in Les Verts:146 the Community was based on the rule of law and therefore judicial review should be available against all acts designed to have legal effects. There were, nonetheless, difficulties with respect to 141  Reg 2017/1001 (n 31) Arts 66–73; Reg 216/2008 (n 39) Arts 40–51; P Chirulli and L de Lucia, ‘Specialized Adjudication in EU Administrative Law: The Boards of Appeal of EU Agencies’ (2015) 40 ELRev 832. 142  Reg 168/2007 (n 46) Art 27(3). 143  Reg 851/2004 (n 41) Art 28. 144  Reg 2062/94 (n 32) Art 22. 145 Case T-411/06 Sogelma—Societá generale lavori manutenzioni appalti Srl v European Agency for Reconstruction (AER) [2008] ECR II-2771. 146  Case 294/83 Parti écologiste—‘Les Verts’ v Parliament [1986] ECR 1339, [23].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

176

ADMINISTRATION AND LAW

agencies established by the Council under Pillar 3, as evidenced by the Eurojust case.147 The ECJ held that judicial review was not available to challenge the particular action complained of and was unwilling to follow the reasoning of Advocate General Maduro and apply the reasoning in Les Verts to what was Article 35 EU. The Lisbon Treaty has simplified the position. Article 263(1) TFEU now explicitly states that the EU Courts can review the legality of acts of bodies and agencies, albeit providing in Article 263(5) that the governing provision for an agency can lay down the more detailed procedures for actions brought by private parties. Moreover, the Pillar system has been dropped from the Lisbon Treaty, with the consequence that the Area of Freedom Security and Justice is subject to the normal Treaty rules, including those of judicial review. The very fact that agencies are now expressly amenable to review influenced the CJEU’s reasoning in the ESMA case.148

(C)  Targeting Judicial Review If judicial review is to be effective, it must be capable of being applied to the institution that made the operative decision. This will not normally be a problem, since either the agency or the Commission will be subject to review in the manner considered earlier. This can, however, be more problematic in relation to those agencies, such as the EMA, where the Commission makes the formal decision, but is heavily reliant on the views of the agency, or one of its committees. It might be thought that if the Commission is amenable to review then this will suffice, since it makes the formal decision. The reality is that in most instances the Commission will simply adopt the agency’s recommendation, and it is intended that this should be so. If review is to be effective, it is necessary for the EU Courts to be able to go behind the Commission decision and consider the agency’s reasoning. The agency itself must be susceptible to review even though it is not the formal author of the decision. The CFI took just this step in Artegodan, which was concerned with withdrawal of authorization to market medicinal products containing ‘amphetamine-like’ anorectic agents, used in the treatment of obesity by accelerating the feeling of satiety.149 The Commission had relied on findings made by the Committee for Proprietary Medicinal Products (CPMP), one of two committees that undertake the scientific work for the EMA. While the Commission was not bound by its opinion, the CFI stressed the importance of the mandatory consultation with the CPMP laid down by the relevant Directive. Given that the Commission could not assess for itself the safety or efficacy of the product, consultation with the CPMP was necessary to give the Commission the scientific evidence from which it could make a reasoned decision.150 The CFI then held that the ‘Community judicature may be called on to review, first, the formal legality of 147  Case C-160/03 Spain v Eurojust [2005] ECR I-2077. 148  Case C-270/12 UK v Council and Parliament (n 81). 149  Cases T-74, 76, 83–85, 132, 137 and 141/00 Artegodan GmbH v Commission [2002] ECR II-4945. 150  Ibid [198].

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

177

the CPMP’s scientific opinion and, second, the Commission’s exercise of its discretion’, in deciding whether to accept that opinion.151 While the CFI acknowledged that it could not substitute its view for that of the CPMP, it could consider its reasoning and whether there was an understandable link between the medical evidence relied on by the CPMP and its conclusions. It was, moreover, incumbent on the CPMP to refer to the main scientific reports on which it had relied and to explain why it disagreed with, for example, divergent scientific opinion presented by the undertakings concerned in the case.152 The case will be examined in more detail later, within the general context of judicial review. Suffice it to say for the present that the logic of the CFI’s reasoning is unassailable: since the Commission would normally follow the opinion of the scientific committee, and had done so in this case, if judicial review was to be meaningful the CFI should be able to consider the CPMP’s reasoning.153

(D)  Applying Judicial Review The discussion thus far has been concerned with the foundations for legal accountability, whether in the agency regulation or the Treaty, and the targeting of judicial review at the institution or institutions that made the contested decision. This still leaves the all-important issue about the application of the precepts of judicial review to the agencies. The chapters in the second half of this book discuss these matters in detail and reference should be made to those for consideration of the procedural and substantive principles of judicial review that are available to an applicant.

8  Political Control and Accountability There is a large literature on control and accountability.154 Commentators take differing views as to the terrain covered by these terms respectively. Bovens has distinguished between broad and narrow conceptions of accountability.155 He acknowledges that some use accountability in a broad sense to connote matters such as transparency,

151  Ibid [199]. 152  Ibid [199]–[200]. 153  The CFI’s decision was upheld on appeal, but the ECJ did not consider this particular issue, Case C-39/03 P Commission v Artegodan GmbH [2003] ECR I-7885. 154  See, eg, T Bergman and E Damgaard (eds), Delegation and Accountability in the European Union (Frank Cass, 2000); C Harlow, Accountability in the European Union (Oxford University Press, 2002); R Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave, 2003); M Bovens, D Curtin, and P ‘t Hart (eds), The Real World of EU Accountability: What Deficit? (Oxford University Press, 2010); M Busuioc, European Agencies: Law and Practices of Accountability (Oxford University Press, 2013); P Craig, ‘Accountability’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press, 2015) Ch 17. 155  M Bovens, ‘Analyzing and Assessing Public Accountability: A Conceptual Framework’ (2007) 13 ELJ 447.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

178

ADMINISTRATION AND LAW

controllability, responsiveness, responsibility, and liability. His preference, nonetheless, is for a more discrete use of accountability, to denote ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences’.156 Accountability in this sense operates ex post, as distinct from control which will often operate ex ante. This sense of accountability is also distinct from issues such as responsiveness and participation. Curtin has, moreover, emphasized the limits of the principal–agent model in assessing accountability of EU agencies.157 The analysis that follows considers a variety of factors that impact on political ­control and accountability of EU agencies. The same issue may well be pertinent at more than one level. Thus, for example, agency composition may have implications for ex ante control and for ex post accountability. It should, moreover, be recognized that formal provisions in agency regulations only take one so far, with the consequence that the reality of the control and accountability between agencies and other institutional players may only be discerned by closer empirical observation of the agency’s workings.158

(A)  Agency Tasks, Criteria, and Reporting It is fitting to begin by considering how far the enabling regulation specifies the ­agency’s tasks and criteria for their attainment. This is important, but is often overlooked in discussion of EU agencies. The basic point is simple: the greater the specification of agency objectives and criteria for attainment, the greater the control exercised over agency choices by the legislature. Vague injunctions as to what the agency is intended to do, coupled with criteria set out at a high level of abstraction, will, other things being equal, leave more power to the agency. This point is especially important where the agency has decision-making power, and even more so where it is accorded discretionary power to make rules and individual decisions. Concerns of this nature have been voiced about grants of power to agencies in the US, leading some to call for revival of the non-delegation doctrine, compelling Congress to set out more specifically the criteria to be used by the agency when making decisions, although the courts have not generally responded to this call.159 Legislative specification of tasks and criteria for their fulfilment are nonetheless ­relevant for EU agencies, a point emphasized in external evaluation of agency 156  Ibid 450. See also M Bovens, P ’t Hart, and T Schillemans, ‘Does Public Accountability Work? An Assessment Tool’ (2008) 86 Pub Admin 225; M Busuioc, ‘Accountability, Control and Independence: The Case of European Agencies’ (2009) 15 ELJ 599; M Bovens, ‘Two Concepts of Accountability: Accountability as a Virtue and as a Mechanism’ (2010) 33 West European Politics 946. 157  D Curtin, ‘Holding (Quasi-)Autonomous EU Administrative Actors to Public Account’ (2009) 13 ELJ 523; D Curtin, ‘Delegation to EU Non-Majoritarian Agencies and Emerging Practices of Public Accountability’ in D Geradin, R Muñoz, and N Petit (eds), Regulation through Agencies in the EU: A New Paradigm of European Governance (Edward Elgar, 2005) 88–119. 158  Busuioc (n 156). 159  A Aman and W Mayton, Administrative Law (West, 2nd edn, 2001) 9–36.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

179

­ erformance.160 This is particularly so for those that have decision-making power, but p it is also apposite for quasi-regulatory and information/coordination agencies. The tasks of these agencies include advising the Commission on legislative initiatives and hence the criteria that should inform such advice remain important. It is impossible within the scope of this chapter to examine all agencies to see how they measure up in this regard. That would require a paper in its own right. Suffice it to say for the present that the general pattern is that the basic agency regulation establishes tasks and criteria for their fulfilment with some real specificity. This is so notwithstanding the fact that the subject matter dealt with by some agencies necessarily leaves interpretive power to the agency to determine whether the criteria have been met. The basic regulation will, moreover, contain provision for implementing regulations to be made to flesh out certain provisions. These regulations are made by the Commission. The agency will contribute to this process, and the more technical the nature of the subject matter, the greater the degree of agency involvement. Thus in the context of aviation safety the two main EASA implementing regulations, which run to 79 and 165 pages respectively, consisted almost entirely of detailed annexes drafted in large part by the EASA. The specification of agency tasks and criteria for their fulfilment has an impact ex ante on the degree of control exercised by the legislature over agency choices. The obligation to report provides some accountability ex post facto. The general pattern is for the regulation to require the agency to send an annual report to the European Parliament, Council, and Commission, and in some instances to the Member States, European Economic and Social Committee (ECOSOC), and the Committee of the Regions. Some agency regulations contain more far-reaching provisions. Thus, for example, the EASA Regulation provides that the European Parliament or Council may invite the director to report on the carrying out of his or her tasks,161 and the ERA Regulation states that the Council and European Parliament can call for a hearing with the agency director at any time.162

(B)  Agency Composition The extent to which agencies can be controlled and held accountable is dependent in part on their composition. Those familiar with the US system will be familiar with changes in agency policy resulting from a new agency head appointed when a President of a different political party takes office. The reality is that no single institution wields this degree of power over agency membership in the EU. The general structure of EU agencies is for there to be an administrative, governing, or management board, an executive director, and in some agencies an advisory forum or a body akin thereto. Control over agency membership is important in any system.

160  Budget Directorate General, Evaluation Unit, Meta-Evaluation on the Community Agency System (2003). 161  Reg 216/2008 (n 39) Art 38(2). 162  Reg 2016/796 (n 43) Art 54(3).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

180

ADMINISTRATION AND LAW

The Commission has sought to increase its power in relation to management boards and the director of the agency, but it has not been notably successful in this regard. The administrative, governing, or management board will normally have the following responsibilities. It will have a role in the appointment of the director of the agency; it adopts the agency’s annual work programme, as proposed by the director; it has overall responsibility for ensuring that the agency performs its tasks; it may play a role in defining the agency’s strategic orientation; and it adopts the annual report on the agency and its financial rules. More recent agency regulations place increased ­emphasis on board members possessing the skills relevant to the area. The board meets twice a year, but there is provision for further meetings at the request of the Chairman, or some of the board members, the normal requirement being two-thirds. Each board member has one vote, and the norm is to require two-thirds majority for management board decisions. The effect is that state equality, in formal terms at least, applies within management boards of agencies. It is interesting to speculate on whether there would be pressure for this to change if agencies were accorded discretionary powers coupled with the authority to make binding rules and decisions. The composition of these boards is important. The paradigm has been for Member State interests to dominate. Thus it was common for agencies created in the 1990s to have one or two representatives from each Member State, somewhere between one and three from the Commission, one or two from the European Parliament, and in some instances representatives from employer and employee organizations. The Commission expressed dissatisfaction with this practice, stating that it failed to take sufficient account of the Community dimension and hence gave insufficient attention to the importance of preserving the unity and integrity of the executive function at European level. It argued in favour of smaller management boards on which it, the Commission, would have a greater percentage of representatives. It pressed for a ­fifteen-member management board, where there would be six Council representatives, six from the Commission, plus three representing interested parties who would have no voting rights.163 The Commission has not been notably successful in this regard. The general pattern for agencies created since the Commission’s Communication in 2002 has continued the same practice as hitherto, with a representative from each Member State, between one and four from the Commission, and some expert professionals in the relevant area, who commonly do not have the right to vote.164 The Commission may, however, wield influence beyond its numerical force.165 The closest that the Commission has come to fulfilling its aspirations has been in relation to amendments to the governing board of

163  Operating Framework (n 8) 9; Draft Interinstitutional Agreement (n 135) Art 11(2). 164  See, eg, Reg 1406/2002 EMSA (n 38) Art 11; Reg 216/2008 EASA (n 39) Art 34; Reg 526/2013 ENISA (n 40) Art 6; Reg 851/2004 ECDC (n 41) Art 14(1); Reg 1093/2010 EBA (n 50) Art 45(2); Reg 1095/2010 ESMA (n 49) Art 45(2). 165  Busuioc (n 156).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

181

EU-OSHA, an older agency.166 The financial supervisory agencies have by way of contrast diminished the Commission’s role in the decision-making process. There is a powerful Board of Supervisors composed of Member State representatives, with only one member from the Commission who has no vote,167 and the management board is composed of the Chairperson plus six other members of the Supervisory Board, and once again there is only one Commission member of the management board who has no vote.168 It is, moreover, noteworthy that the 2012 Common Approach endorsed a general approach to the composition of management boards that emphasized the status quo, in terms of a representative from each Member State, and two members from the Commission.169 The agency director is central to the running of the organization. The incumbent has a number of functions including oversight of the day-to-day work of the agency, drawing up the agency work programme, implementing that programme, budgetary responsibility, and the preparation of the annual report of the agency’s activities. Appointment is normally either by the management board on a proposal from the Commission, or by the Commission on the basis of candidates put forward by the management board. The Commission argued that the latter should be used in relation to those bodies with formal decision-making powers, since it was especially important in such contexts that the director had the Commission’s confidence.170 The reality is that appointment by the management board is the norm, and this has continued to be so even in relation to agencies that have decision-making power. This approach was endorsed in the 2012 Common Approach, subject to the caveat that the candidates should be selected from a list drawn up by the Commission.171 The method of appointment whereby the Commission provides the list of candidates to the agency still leaves the Commission with power over choice of the agency director. The extent of this power has, however, been qualified by three related developments in the regulations governing third-generation agencies. There has been an increased emphasis on the need for the agency director to be independent and to possess the skills relevant to the agency’s area.172 There is provision for the Commission’s list of candidates to be produced after an open competition for the post, which must be advertised in the Official Journal and other relevant sites. There is, moreover, a requirement that the person chosen by the management board as a result of this process must appear before the European Parliament before being formally appointed, make a statement concerning his or her vision for the agency, and answer questions.173 The discussion thus far has been concerned with agencies established under the Community Pillar. Matters were not surprisingly different for Council agencies 166  Reg 1112/2005 (n 98) Art 1(5) amending Reg 2062/94, Art 8. 167  Reg 1093/2010 (n 50) Art 40(1). 168  Ibid Art 45(2). 169  Joint Statement (n 63) [10]. 170  Operating Framework (n 8) 10. 171  Joint Statement (n 63) [16]. 172  Reg 1406/2002 EMSA (n 38) Arts 15–16; Reg 216/2008 EASA (n 39) Art 39; Reg 526/2013 ENISA (n 40) Art 11; Reg 851/2004 ECDC (n 41) Art 16. 173  Reg 178/2002 EFSA (n 37) Art 26; Reg 526/2013 ENISA (n 40) Art 24(2); Reg 851/2004 ECDC (n 41) Art 17.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

182

ADMINISTRATION AND LAW

e­ stablished under what were Pillars 2 and 3, where Member State control over the decision-making process was more pronounced.

(C)  Agency Work Programme The rules concerning agency composition are important for the reasons considered earlier. The extent to which an institution external to the agency is able to exert influence over its work programme is equally significant. Most of the regulatory schemes accord the Commission some input to the agency’s work programme over and beyond that flowing from its membership of the management board, although the precise degree varies from agency to agency. The 2012 Common Approach stipulated that the annual work programme and the multi-annual programme should be drawn up by the agency, subject to consultation and advice from the Commission.174 The provisions in relation to the EMSA give the Commission the greatest influence in this respect. The administrative board adopts the agency’s work programme for the coming year and forwards it to the Member States, the European Parliament, the Council, and the Commission. Where the Commission expresses within fifteen days from the date of adoption of the work programme its disagreement, the administrative board must re-examine the programme and adopt it, possibly with amendments within two months. There must be a two-thirds majority, including the Commission representatives, or unanimity of the Member State representatives on the administrative board for this second reading.175 The same provisions apply to Commission control over the ERA’s176 and the CFCA’s177 work programme. The EMA Regulation falls at the other end of the scale. It stipulates that the director prepares the draft programme of work for the coming year, which is then adopted by the management board and forwarded to the Member States, Commission, Council, and European Parliament.178 There is no explicit provision for any privileged role for the Commission concerning the annual work programme of the kind that exists in the EMSA Regulation. Similarly the EBA Regulation provides for the work programme to be adopted by the Board of Supervisors, which is then transmitted for information to the Commission, Council, and European Parliament.179 The EFSA Regulation occupies an intermediate position. It is for the management board to adopt the annual work programme. There is no mention at this level of any Commission involvement, over and beyond its membership of the board, albeit there is an injunction that the programme should be consistent with the EU’s legislative and policy priorities in the area of food safety and this would serve to give the Commission some leverage. The Commission is in any event accorded influence because the ­director who drafts the annual work programme does so in consultation with the Commission.180 174  Joint Statement (n 63) [28]–[29]. 175  Reg 1406/2002 (n 38) Art 10(2)(d). 176  Reg 2016/796 (n 43) Art 52(2). 177  Reg 768/2005 (n 44) Art 23(2)(c). 178  Reg 726/2004 (n 30) Arts 64(3), 65(9), 66(d). 179  Reg 1093/2010 (n 50) Art 43(6). 180  Reg 178/2002 (n 37) Arts 25(8), 26(2)(b).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

183

Agencies

The Regulation governing the EASA exemplifies another intermediate position, stipulating that the management board shall adopt the annual work programme after receiving the Commission’s opinion, and then forwarding it to the European Parliament, Council, Commission, and Member States.181 This is perhaps the most common ­‘format’ in use. There is little doubt that the regulatory provisions concerning EMSA give the Commission some real leverage over the annual work programme. It is, nonetheless, difficult to determine in reality how much influence the Commission brings to bear over this programme and equally difficult to assess whether there is any causal relationship between the different legal provisions and the degree of influence wielded by the Commission. The empirical evidence indicates that the formal legal provisions are an imperfect guide as to the extent of Commission influence over the agency work programme.182 It is likely that if the Commission feels sufficiently strongly about the direction of an annual work programme and has been unable to get it revised through its members on the management board, then it will seek to exert influence from the outside irrespective of the precise provisions of the particular regulation. The situation in relation to Council agencies was different. The norm was that the board adopted the annual work programme that had been drafted by the director of the agency. There was no formal provision for the Commission to be consulted on this draft by the director or by the board. This was unsurprising given that these agencies were dominated by Member State representatives.

(D)  Agency Transparency Transparency is properly regarded as an important attribute of public decision-­ making. There is both diversity and some degree of uniformity in relation to agencies and transparency. There is diversity in the sense that agency regulations differ considerably as to the extent to which they mention transparency. This may be partly explained by the fact that the agencies deal with different subject matter and that transparency may be relatively more or less important in some areas than others. This explanation is, however, unconvincing, given that basic precepts of transparency are important in all public decision-making. The EFSA Regulation on food safety is an example of transparency being accorded a high status. The EFSA is instructed to carry out its mission with transparent procedures.183 It is told more specifically to make public without delay agendas and minutes of the Scientific Committee and Scientific Panels; the opinions of these bodies immediately after adoption, including minority opinions; the information on which its opinions are based; annual declarations of interest by the management board, director, and others; the results of scientific studies; the annual report of its

181  Reg 216/2008 (n 39) Art 33(2)(c). 183  Reg 178/2002 (n 37) Art 22(7).

182  Busuioc (n 156).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

184

ADMINISTRATION AND LAW

activities; and requests from the European Parliament, Commission, and Member States for scientific opinions that have been refused or modified, together with justification.184 The Regulation also provides that the management board shall generally meet in public and that it may authorize consumer representatives or other interested parties to observe some of the EFSA’s activities.185 A number of other agency regulations contain provisions about transparency,186 albeit not in the detail of the EFSA Regulation. There is, however, uniformity in relation to the aspect of transparency dealing with access to documents. Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices, and agencies shall conduct their work as openly as possible. Article 15(3) TFEU provides a right of access to documents held by the EU institutions including agencies, subject to limits on grounds of public or private interest. A Regulation was introduced specifying the nature of these conditions and limits.187 It will be examined in more detail in a later chapter.188 This Regulation has been applied to agencies. They must also ensure that their proceedings are transparent and must elaborate in their Rules of Procedure provisions regarding access to their documents.

(E)  Agency Networks A theme that appears repeatedly in the agency regulations is that of network,189 connoting the idea that the agency should interact with other key players, whether at national, regional, or international level. In many of the regulatory schemes the network concept is explicit and formalized, as exemplified by the EFSA and food safety. The original Regulation stipulated that the  EFSA should promote the networking of organizations operating in fields that came within the EFSA’s mission, in order to facilitate scientific cooperation through ­coordination of activities, exchange of information, expertise, and the like. Detailed implementation of this idea was to be carried through by a Commission Regulation,190 which was enacted.191 It established the criteria for organizations that are to take part in the network. They must, for example, have scientific expertise in the relevant area 184  Ibid Art 38(1). 185  Ibid Art 38(2). 186  See, eg, Reg 1406/2002 EMSA (n 38) Art 4(2); Reg 526/2013 ENISA (n 40) Art 16; Reg 851/2004 ECDC (n 41) Arts 19–20; Reg 1093/2010 EBA (n 50) Art 81(1)(f). 187  Regulation (EC) 1049/01 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission Documents [2001] OJ L145/43. 188  Ch 12. 189  P Craig, ‘Shared Administration and Networks: Global and EU Perspectives’ in G Anthony, J-B Auby, J Morison, and T Zwart (eds), Values in Global Administrative Law: Essays in Honour of Spyridon Flogaitis and Gerard Timsit (Hart, 2011) Ch 4. 190  Reg 178/2002 (n 37) Art 36. 191  Commission Regulation (EC) 2230/2004 of 23 December 2004 laying down detailed rules for the implementation of European Parliament and Council Regulation (EC) 178/2002 with regard to the networking of organisations operating in the fields within the EFSA’s Mission [2004] OJ L379/64.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

185

and pursue public interest objectives. It is for the Member States to designate competent organizations from their country. The EFSA will check that they meet the relevant criteria. The EFSA fosters networking with these organizations with the help of the Advisory Forum. The Regulation specifies tasks that can be entrusted to organizations on the list, including: dissemination of best practices; collecting and analysing specific data with a view to facilitating risk assessment by the EFSA; producing scientific data contributing to risk assessment; preparing the EFSA’s scientific opinions; and preparing the harmonization of risk-assessment methods. Networks are accorded an explicit role in relation to many other agencies. The ­following are simply examples. Thus, one task accorded to EU-OSHA is to establish, in cooperation with the Member States, and coordinate a network of organizations, taking into account the national, EU, and international bodies providing the type of information concerning health and safety at work that falls within EU-OSHA’s remit. The agency is enjoined to establish a network comprising principal components  of national information frameworks, including social partners’ organizations, national focal points, and future topic centres, in order to exchange information and coordinate initiatives.192 The EASA Regulation makes provision for an information network between the agency, the Commission, and national aviation authorities. Networking is  evident once again in the fact that the agency can enlist the help of national ­aviation  authorities in the issuing of airworthiness certificates, drawing on their expertise in this area, and can work with such national authorities in relation to investigation and enforcement.193 Networking is central to the work of the ECDC, in order for it to be aware of and be able to fight disease. The ECDC therefore interacts with and draws information from national bodies, and promotes cooperation between them.194  The remit accorded to the EMSA to provide for maritime safety, maritime security, and the prevention of pollution necessitates significant interaction between the agency and national authorities in relation to a whole range of matters.195 Networks are also a prominent feature of many of the Council agencies established under Pillars 2 and 3. It is clear that networking makes a good deal of practical sense. It fosters c­ ooperation between national and Union authorities dealing with the same terrain, avoids duplication of effort, and facilitates exchange of information, expertise, and best practice. These benefits are especially significant for those agencies concerned with collation of information and coordination. Networking is equally important for agencies such as the EASA and EMSA, which have been established to foster safety and security in their area. The discharge of these responsibilities not only requires information flows between relevant players at national, EU, and international level. It also necessitates interaction when it comes to matters such as criteria for airworthiness, inspection, and enforcement. The agency model provides a fitting mechanism through which such 192  Reg 2062/94 (n 32) Arts 3(1)(f), 4, as amended by Reg 1112/2005 (n 98). 193  Reg 216/2008 (n 39) Arts 10, 15. 194  Reg 851/2004 (n 41) Arts 5–10. 195  Reg 1406/2002 (n 38).

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

186

ADMINISTRATION AND LAW

­ etworking can take place. It enables the EU to establish a body to act as the focal point n for the network. Scholars have highlighted the benefits of networking and the way in which it is facilitated by the agency model,196 although some are more cautious about the utility of the network concept for explicating the nature of the agency administrative regime.197 The fact that networking is efficacious does not in and of itself tell one much if anything about its implications for political control and accountability. This is in part because so much depends on the type of networking that operates within a particular agency regime, and because networking can have countervailing implications for ­control and accountability. Thus the existence of the type of network that characterizes EU agencies renders control from and accountability to the top more difficult. The very fact that there are multiple players involved (national, sub-national, international, non-governmental), as well as the Union agency, means that implementation of the agency’s agenda may be shaped by these players, who may have an impact on the agenda itself and not merely its implementation. It may moreover, as Shapiro notes, be difficult to differentiate between expert input and policy preference, or to know what the preferences of the other players actually are and how they factor into the practicalities of implementation or shape the policy agenda.198 It is, however, also possible to argue that while networks render control from and accountability to the top more difficult, they nonetheless have other benefits. The inclusion of multiple players, in addition to the agency and the formal Union institutions, could be said to facilitate more pluralist, participatory forms of governance. We should not forget why state, regional, international, and non-governmental parties are included in the networks. They have things to offer, such as expertise and information; they may be concerned with the same problems and hence duplication of effort can be avoided; and their assistance may be required for the agency regime to be operational on the ground. There is, therefore, an admixture of instrumental and non-instrumental reasons for  the involvement of other parties in the development and application of agency policy. The instrumental rationale is that it is hoped that a better policy will result if the  views of those with expertise etc are taken into account. This is complemented by  the non-instrumental rationale, that participation of these parties within agency ­decision-making will enhance their involvement with the polity and render the results more acceptable.

196  Dehousse (n 14); K-H Ladeur, ‘The European Environment Agency and Prospects for a European Network of Environmental Administrations’, Working Paper RSC No 96/50, EUI (1996); T Borzel, ‘Policy Networks—A New Paradigm for European Governance?’, Working Paper RSC 97/19, EUI (1997); T Borzel, ‘Rediscovering Policy Networks as a Form of Modern Governance’ (1998) 5 JEPP 354. 197  Chiti, ‘Emergence’ (n 80) 329–31; Chiti, ‘Decentralisation’ (n 80) 425–8. 198  Shapiro (n 12) 286–7.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

Agencies

187

(F)  Agency Participation There is a proximate connection between networks and participation in agency ­decision-making. Networks enable those who are interested in the agency’s work to participate therein. Participation is, nonetheless, a topic in its own right, since there may be parties that are not part of any network, who wish to have their voice heard on a particular issue. A number of agency regulations make reference to participation/consultation. The EMA provides that Member States and interested parties should be consulted when it draws up guidance on the form in which applications for authorization should be presented and on the collection and presentation of adverse reaction reports.199 ENISA is instructed to engage with interested parties in the context of risk management.200 The EFSA Regulation stipulates that there shall be open and transparent public c­ onsultation during the preparation, evaluation, and revision of food law, except where urgency precludes this.201 The EASA is enjoined to consult interested parties and respond to their comments.202 It is, however, necessary to press beyond the bare regulations to appreciate the reality of agencies and participation. It is clear, for example, that the EFSA makes frequent use of consultations on an ad hoc basis. It is equally clear that the EASA has the best developed practice in this respect. We have touched on the EASA’s rulemaking programme in the previous discussion. The rulemaking procedures are impressive. The EASA publishes an annual rulemaking programme, and any person can propose that an item be included.203 The terms of reference of a particular rule are then set out, explaining the nature of the problem to be addressed, followed by the draft rule, in relation to which the agency conducts a regulatory impact assessment. Notice of the proposed rule is posted on the website and any person can comment through a standardized form. The comments are then aggregated in a comment response document (CRD), enabling interested parties to gain an overview of comments put forward by others.204 These comments are then used by the drafting group when finalizing the rule. The drafting group may be reinforced by additional members, including those who dissented from the draft rule. The entire rulemaking process is easy to access and follow. It could well serve as a model in other related areas.205 The primary regulations for the financial supervisory agencies contain detailed obligations to consult, and it remains to be seen how the agencies structure such participation.

199  Reg 726/2004 (n 30) Arts 26, 51. 200  Reg 526/2013 (n 40) Art 12. 201  Reg 178/2002 (n 37) Art 9. 202  Reg 216/2008 (n 39) Art 52. 203 https://www.easa.europa.eu/document-library/rulemaking-process-overview/rulemaking-explained; https://www.easa.europa.eu/sites/default/files/dfu/EASA%20MB%20Decision%2018-2015%20on%20 Rulemaking%20Procedure.pdf. 204 http://easa.europa.eu/rulemaking/comment-response-documents-CRDs-and-review-groups.php. 205  Reg 1093/2010 (n 50) Arts 10, 15; Reg 1095/2010 (n 49) Arts 10, 15; Reg 1094/2010 (n 51) Arts 10, 15.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

188

ADMINISTRATION AND LAW

9  Financial Control and Accountability Financial accountability is important for any public institution. The original agency regulations contained provisions about budgets, revenue, and the like. These have now  been amended and made more uniform. The catalyst for this change was the new Financial Regulation,206 considered in a previous chapter,207 Article 185 of which ­stipulated that a further regulation should be made applying relevant principles of the Financial Regulation to Community bodies that have legal personality and received grants charged to the budget. This Regulation was enacted in 2002,208 and the current version dates from 2013.209 It leaves certain choices open to agencies, but nonetheless closely structures and confines their options. The budgetary principles of unity, annuality equilibrium, universality, specification, sound financial management, and transparency contained in the Financial Regulation are made applicable to EU bodies,210 as are the important rules concerning budget implementation. The division between authorizing and accounting officer, which was central to the new Financial Regulation, is extended to these bodies. The director is presumptively the authorizing officer for the agency, although he can delegate these powers to a staff member who comes within the Staff Regulations.211 The authorizing officer is responsible for implementing revenue and expenditure commitments in accordance with the principles of sound financial management and for ensuring that requirements of legality and regularity are met.212 Financial control systems must be put in place. The authorizing officer is the key figure in the financial regime. Every item of expenditure has to be committed, validated, authorized, and paid. Budgetary commitment must precede legal commitment, and it is the authorizing officer who does both. The authorizing officer is responsible for validating the expenditure, which entails verification that the relevant task has been performed and the amount of the claim.213 The officer then authorizes the expenditure, although the actual payment is made by the accounting officer.214 There are numerous checks built into the system. Before any particular operation is authorized it must be verified ex ante by a staff member other than the one who initi206  Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1; Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 [2012] OJ L298/1. 207  Ch 3. 208  Commission Regulation (EC, Euratom) 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) 1605/2002 [2002] OJ L357/72. 209  Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council [2013] OJ L328/42. 210  Ibid Arts 5–28. 211  Ibid Arts 39–40. 212  Ibid Art 39. 213  Ibid Arts 44–46. 214  Ibid Art 50.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

189

Agencies

ated the operation.215 The controls ex post are dealt with by a different person yet again.216 There is provision for a staff member to blow the whistle if the person believes that he or she is being required to agree to something by a superior that is irregular or contrary to principles of sound financial management and this applies a fortiori in the event of illegality, corruption, or fraud.217 There are provisions requiring the authorizing officer to pay compensation if expenditure is authorized that does not comply with the Financial Regulation and the implementing rules.218 Where power is ­delegated the director as the original authorizing officer remains responsible for the effectiveness of the internal management and control systems put in place and for the choice of the person to whom the power has been delegated.219 There is an internal audit regime, and the internal auditor advises the agency on matters such as internal management and control systems.220 This is complemented by external audit through the Court of Auditors,221 and the requirement of budgetary discharge exercised by the European Parliament on recommendation from the Council.222 In addition to these financial controls, it is now common practice to specify that the agency is subject to investigation by the European Anti-Fraud Office (OLAF), thereby providing a further check on fraud. These rules are likely to have an impact on agency decision-making that goes beyond financial accountability per se. The authorizing officer is responsible for the budgetary and legal commitment on expenditure; he or she is responsible for validating the expenditure; and it is the authorizing officer that issues the payment order. It means that the agency director as authorizing officer will be acutely aware of agency decisionmaking that involves any expenditure and mindful of the penalties that can flow if errors are made. The director is, as we have seen, responsible for the day-to-day running of the agency and the planning of its work agenda. The financial rules locate, subject to any delegation, financial responsibility with the director. This conjunction of responsibilities is likely to be beneficial for the smooth running of agencies, ensuring that policy and financial planning/implementation are closely linked, and that the director maintains control over the agency, notwithstanding the networks that feed into it. It also facilitates oversight by the management board, which has the power to adopt the work programme and budget, both of which will have been drafted by the director.

10  The Current Agency Regime (A)  The Current Regime Agencies have become a settled feature of the EU’s institutional landscape. There are controls and mechanisms designed to foster accountability from the top and the 215  Ibid Art 45(5). 219  Ibid Art 44(2).

216  Ibid Art 46(3). 220  Ibid Arts 82–84.

217  Ibid Arts 39, 48, 53. 221  Ibid Arts 107–111.

218  Ibid Art 53. 222  Ibid Art 109.

OUP CORRECTED PROOF – FINAL, 11/10/18, SPi

190

ADMINISTRATION AND LAW

bottom. These are not perfect, and agencies could learn much from exchange of ‘best practices’ in relation to matters such as procedures, transparency, and consultation. While there is room for improvement, the existing regime, when viewed with the financial provisions, secures a reasonable measure of accountability. External e­ valuation of agency performance has been quite positive, albeit with some recommendations for improving agency efficiency and internal agency management structures.223 It should, moreover, be remembered, as Dehousse forcefully reminds us, that prior to the Lisbon Treaty the alternative to agencies was not a genuine political dialogue between Council and Parliament, but regulation through yet another Comitology committee with the problems that this entails.224 It is difficult to argue that Comitology fared better than agencies judged by the accountability criteria considered earlier.225 The Commission view is that agencies will remain part of the institut