be implemented as intended (Scharpf 1988: 254-255). In other words, implementation
depends on the maintenance of the chain of command from the supranational institutions
to implementing agencies.
The Infringement Procedure
One of the EU’s most important responses to the problem of maintaining the chain
of command for implementing EU policy is the infringement procedure. When the
Commission determines that a Member State is implementing a directive improperly, it
initiates an infringement case against the Member State. Under article 169 of the Treaty,
the infringement procedure has three stages: the letter of notice, the reasoned opinion and
referral to the European Court of Justice (ECJ). This section discusses the stages of the
infringement procedure as well as its most important flaw. The infringement procedure is
a flawed oversight mechanism because it applies only to the Member State governments
themselves and not to the administrative agencies.
The letter of notice identifies a potential problem and requests that the Member
State explain how it has or has not implemented the directive. This stage can serve as a
warning to the Member State that the Commission is watching its progress. Frequently,
the Commission issues letters of notice to several Member States at a time for failing to
transpose directives by the stipulated deadline. This was the case in 1990 when the
Commission issued letters of notice to Belgium, Denmark, Italy, Luxembourg and
Portugal for failure to implement directive 86/188/EEC regarding the protection of
workers from noise. While issued at the same time, the Commission deals with each case
separately and each Member State resolves the case against itself on its own.
Convention