Administrative Cooperation as a Supporting Competence in Article 197 TFEU

Introduction1 The EU legal system is largely based on a system of indirect administration.This is confirmed by Article 291(1) of the Treaty on the Functioning of the European Union ('TFEU'), which provides that, apart from exceptional cases, EU law is implemented and enforced at the national level.The latter thus remains competent to designate the administrative authorities competent to implement and enforce EU law and provide for the necessary tools to do so.It is thus essential for these authorities to be able cooperate to effectively implement EU law.While the notion of 'effective' implementation is not defined in EU primary law or in case law (Nicolaides and Geilmann), it appears in Article 197 TFEU, the only article of Title XXIV on 'Administrative cooperation'.2 This provision emphatically states, in its first paragraph, that effective implementation of EU law is to be considered 'a matter of common interest'.This provision does not require uniform or consistent implementation practices (Jancewicz, Van Cleynenbreugel, and Bois) but merely allows the Union to 'support the efforts of the Member States to improve their administrative capacity to implement Union law'.Its role as a 'supporting' competence (confirmed by Article 6(g) TFEU) excludes any measures harmonizing Member States' administrative structures (Craig).3 The second paragraph clarifies that such actions on the side of the EU, carried through regulations adopted in accordance with the ordinary legislative procedure, may include 'facilitating the exchange of information and of civil servants as well as supporting training schemes' and that ' [N]o Member State shall be obliged to avail itself of such support'.4 Finally, Article 197(3) clarifies that the setting up of mechanisms fostering the administrative capacity of the Member States to effectively apply EU law 'shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission' as well as 'to other provisions of the Treaties providing for administrative cooperation among the Member States and between them and the Union'.5 The supporting and 'residual' nature of Article 197 TFEU, as well as its vagueness in terms of scope, has raised questions of its added value (Section B).These doubts can be confirmed when examining its concrete application both as a legal basis and by the Court of Justice of the European Union (CJEU) (Section C).Administrative cooperation has instead developed independently from Article 197 TFEU.It is, first, based on sectoral legal bases for specific policy areas (Mildebrath and Manko).Administrative cooperation is notably mentioned in the Chapter on the Area of Freedom, Security and Justice (Section D), however, the concrete use of Article 74 TFEU remains scarce.Administrative cooperation is also very often formally mentioned and established in secondary legislation (Section E), and de facto is present in virtually all EU policy areas (Section F). B. The Concept of Administrative Cooperation under Article 197 TFEU6 Before the Treaty of Lisbon, there was no provision on administrative cooperation within the Treaties, as it was not envisioned among the matters conferred to the Union.While the initial conversations on reforming the Treaties dealt with matters of good governance, efficiency, and transparency, they rapidly came to include cooperation among national authorities, and between the latter and Union authorities (Chiti, 2012).The origins of Article 197 TFEU can thus be seen in the Convention on the Future of Europe and the final report of Working Group V on 'Complementary Competencies' from 2002.The provision was eventually drafted and adopted in line with this report, noting that the implementation of EU law is a matter of common interest, and giving the EU powers to adopt certain

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