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December 14, 2018

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Brace for Impact: Abandoning the EU Pilot

July 23, 2018

 

In 2008 the Commission announced a new initiative for handling potential cases of infringement of EU law. This new method, named the EU Pilot, essentially comprised a database that linked each Directorate General (DG) to a Member State ‘Contact Point’. It was a file management system that could be audited by the Secretariat General (SG) who takes ultimate responsibility for monitoring the application of EU law. Before the introduction of the EU Pilot, infringement cases for failure to fulfil the obligations of EU law were brought against Member States only after a protracted and undocumented phase diplomatic negotiation. If this failed, investigations into Member States would progress to a ‘fiche’ (or file) presented to the College of Commissioners. Different DGs appeared to have their own process for handling files, and progressed at different speeds. At monthly meetings the College would agree whether the formal steps of the infringement process, detailed in the treaty in Article 258 TFEU would begin (formal letter, reasoned opinion, referral to CJEU). 

 

After the introduction of EU Pilot, the diplomatic unstructured dialogue phase was formalised into a structured (yet flexible) discourse. Notional 10-week deadlines were introduced for the Member State and Commission to respond to each other, and then a decision had to be made whether to close the file or progress to the formal letter stage and officially open up a case file. In the first iteration, the Pilot was to handle only complaints from citizens; then it was widened to include Commission investigations and Petitions from the European Parliament. There was a distinctive internal benefit for EU Pilot – it could be overseen by the SG and the individual DGs would not be able to sit on potential infringements for lengthy periods of time. So its rationale was increasing the rate at which files were dealt with – through internal scrutiny and a dedicated Contact Point in each Member State – but it was also a response to the enlargement of the EU which had exploded the Commission’s enforcement work. It was a particular product of its time, especially since (and this is still the case) the Commission believes there is rarely a problem that cannot be solved through the magical tool of databases.

 

At the time of its introduction, I wrote rather critically about the ability of this new system to decrease time whilst adding yet another step to an already lengthy infringement process. I was not a fan for a number of reasons. Deadlines were so flexible they might as well not exist, and thus I could not see the difference between structure and unstructured diplomatic dialogue. It required an adjustment to the rights of complainants, and not for the better. The Commission’s initial evaluation of EU Pilot however was very positive, and so Pilot persisted. I have written about this pros and cons of this system here in more detail. 

 

Until 2016, EU Pilot was the preferred method of dealing with potential infringements. However in the 2016 annual report on monitoring the application of EU Law, and in EU Law: Better results through better application, the Commission announced that EU Pilot was to be abandoned. It then confirmed this new policy in the 2017 report, and the statistics illustrate this: from 1502 files opened in 2013, to only 178 files open in 2017. Pilot is on its final descent. The reason given for this is that (as I suspected 10 years ago) after all it was not as efficient as previously claimed, despite two positive evaluations by the Commission extolling its virtue. Abandoning Pilot comes hand in hand with the decision to stop pretending that the Commission pursues all infringement cases. This is a big relief, for the Commission and researchers alike, since many a false hypothesis has been constructed on the basis of the accuracy of 258 data as a predictor of non-compliance. Of course, the Commission never pursued all breaches of EU law because it never had the resources to do so – but now it freely admits that it will take a ‘strategic approach’ in line with its Better Regulation agenda. 

 

There are other potential benefits for abandoning EU Pilot for the Commission. There has been a noticeable increase in agitation by the European Parliament for access to the data associated with Pilot so that it can properly monitor the Commission’s executive discretion. There has also been a suggestion that the Commission in fact did not appear to have a legal basis for EU Pilot – an inaccurate assessment in my view since Article 17 TEU stipulates that the Commission is guardian of the treaties, and is under a duty to ensure the application of EU law. This is a zone of experimentation and executive discretion where the Commission has the capacity to invent tools and techniques to ensure the application of EU law, including EU Pilot. It is an administrative function and the Commission does not require a separate legal base for this. 

 

The abandonment of Pilot fits squarely within a wider picture – the Commission is taking fewer infringement cases altogether. Being strategic with infringements means that the Commission is engaging a much wider selection of tools and techniques for enforcement of EU law than ever before. This new approach to enforcement is explored in the forthcoming paper entitled ‘Mapping the Regulatory Landscape of the EU’ by Dr Melanie Smith and Dr Sara Drake.

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