Edited by Sara Drake and Melanie Smith
Chapter 2: The visible, the invisible and the impenetrable: innovations or rebranding in centralized enforcement of EU law?
The infringement process contained in Article 258 TFEU is the traditional centralized mechanism of enforcement of EU law. It requires the Commission, as guardian of the treaties, to monitor the performance of Member States in relation to the implementation and application of EU norms. When performing this task, the Commission enjoys a wide discretion afforded to it by the Court of Justice. So far, so familiar to most legal scholars. However, this traditional picture of the centralized enforcement mechanism is far from complete. Centralized enforcement is a layered and mostly opaque process. There is the formal (familiar) legal process set out in the treaties and, in its shadow, the informal administrative process where most of the enforcement work is actually carried out. The various layers within layers of enforcement behaviour make it particularly challenging to judge the effectiveness of this regime, since what occurs in these hidden layers of enforcement is largely unknown and thus little researched. This chapter presents a model of centralized enforcement which captures these different layers and, in unearthing the various enforcement behaviours, explores to what extent there has been genuine innovation in the context of centralized enforcement or whether and to what extent such innovations have merely followed the evolution of regulatory theory, representing an exercise in (re)discovery and rebranding.
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