The functional overlap of enforcement and implementation tools

Abstract

This article argues that notwithstanding the doctrinal distinction between enforcement and implementing measures, there are effective points of functional overlap between enforcement powers and certain types of implementing tools, which are lawful in that they serve other aims and purposes than enforcement. Since the Commission employs these measures in conjunction with the general infringement procedure or as an alternative with the less discernible aim of ensuring compliance, a comprehensive EC enforcement analysis must take note of them. Potential legal constraints on the Commission in employing these instruments, such as the proportionality principle, are among the questions raised. In addition, the article explores how any perceived misuse may have ramifications for the Commission's ability to have future implementation powers established in secondary law.