Nature of the procedure

Nature of the procedure: Comm initiates either on its own, or in response to complaint.

    • Comm has acknowledged that citizens’ complaints is a significant source, suggesting procedure contributes to a more participatory Community – Dentist Airdrie
      • Developed standard complaint form in 1999 to facilitate indiv use
    • But also emphasised that enforcement procedure NOT primarily meant as means of redress for indivs, rather it is objective mechanism for ensuring MS compliance – Comm’s discretion in deciding whether to initiate proceedings, and bilateral (not trilateral) nature.
      • Even where there are clear violations, this does not compel Comm to bring enforcement proceedings! Comm still has a discretion, though in a Communication of 2002, Comm itself said if there’s clear evidence it will start proceedings.
    • Hence, the indiv’s role is imprecise and varies.
    • But since establishment of Ombudsman’s office, indivs have complained about Comm’s procedures, and Ombudsman held investigation of own initiative in 1996.
      • Comm stopped practice of failing to inform indiv Cs where case was terminated.
      • In 2002, Comm published consolidated version of internal procedural rules in a Communication, allowing Ombudsman to assess Comm’s performance. Also aided transparency/good admin.
      • ➔ includes standard form for complaints to be submitted to Comm
    • Access to documents: complainants/interested parties often complain of difficulty in accessing docs related to infringement, while Comm uses exception in Reg on access to docs (see previous sup’s notes) on ‘inspections, investigations and audits’. ECJ generally supports Comm.
      • Petrie v Comm, 2001: CFI underscored bilateral nature of infringement proceedings
      • Cf Bavarian Lager II, 2007: CFI held disclosure of docs relating to proceedings closed 6 years ago would not jeopardise Comm’s investigations, hence not within exception.
      • Sweden/API v Comm, 2010: ECJ held there is general presumption that disclosure of pleadings would undermine protection of those proceedings, but rebuttable! Also, after ECJ has delivered judgment for art 258 proceedings, docs relating to Comm’s investigations in Dentist Airdrie and in context of these proceedings are NOT within exception, even if art 260 proceedings are still pending (no presumption of undermining art 260 case)!


Comm’s discretion? Concerns that the Comm uses discretion to bring proceedings in arbitrary manner, or unfairly/oppressively. Comm might have political motivations.

    • Art 258(2): indicates that after it issues reasoned opinion indicating breach, Comm has discretion whether to refer to ECJ or not [between stages (3) and (4)].
      • ECJ carries out objective analysis: will only examine if infringement alleged by Comm exists – will not look at Comm’s motives for bringing the action (Comm v UK, 1988). Comm also acts in ‘general interest’, hence does not have to have specific interest!
      • Here, UK tried to argue that Comm was acting for political reasons. But ECJ affirmed Comm has full discretion as to why it will pursue a certain breach.
    • Also generally agreed that Comm has discretion whether/when to issue reasoned opinion.