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The European Commission has absolute discretion in proceedings under Article 258 TFEU. It is free to decide against what kind of violation and against which Member State it will initiate proceedings as well as on the timing of these proceedings. The reasons of this wide discretion (limited resources, political considerations, efficient compliance management) and the arguments against it (the obligation of the Commission as the ‘Guardian of the Treaty’, the reasonable time limit requirement, the accountability approach opposing any unlimited discretion) are explained in this article. The Court’s unlimited jurisdiction under Article 260 TFEU entails that it can impose financial sanctions without taking account of the proposal by the Commission. This may violate the principles of legal certainty and institutional balance. This article sheds light on the bureaucratic dimension which may contribute to a deeper understanding of the Court’s sustenance of the absolute discretion and the role of bureaucratic self-interest in reluctance to give access to documents.
