Guarding the guardian: ‘Article 258 TFEU complaints’ before the European Ombudsman

Abstract

The infringement procedure of Article 258 TFEU has been consistently viewed by the EU administration and judges as a bipolar bargaining game between the European Commission and the defaulting member state, in which individuals have no role to play. The European Ombudsman's efforts to triangularize the infraction process have resulted in the introduction of a number of soft-law, non-justiciable commitments for the Commission, which are currently set out in the 2012 Communication on its relations with complainants. This article considers the Ombudsman's contribution in the field of infringement complaints by empirically examining the application of the principal provisions of the Commission's Communication in his decision-making. The resulting finding is that Article 258 TFEU complainants have substantially benefited from the Ombudsman's creativity beyond the tight constraints of legality.

Points for practitioners

The analysis brings to the fore a number of key soft-law, non-justiciable commitments that the European Union administration is expected to honour in its everyday dealings with the European citizenry. The discussion also explores the transformative impact that extra-judicial means for the delivery of administrative justice can have on the ethos and praxis of supranational management. The European Commission's reaction to the European Ombudsman's investigative pressure and the resultant restraints on the former's discretionary powers are useful lessons, which transcend the European Union context and could set the tone for relevant developments in the domestic spheres of the EU member states.