The Transposition of EC Directives: A Comparative Study of Instruments, Techniques and Processes in Six EU Member States

This is a report on a research project into processes, instruments and techniques of transposition of EC Directives in six Member States of the EU. The project was commissioned by the Dutch Government (Ministry of Justice) in 2005. Summary of findings & recommendations: The central question of the research project was: What kind of transposition instruments and techniques are used in Germany, Denmark, France, Italy, the United Kingdom, and Spain to transpose EC directives into the national legal order in a timely, precise and legally correct way? The premise of this research is that the Netherlands can learn from the experiences of other Member States. In answering the central question - and the various sub questions resulting from it - this project has made an inventory of the available transposition instruments and techniques, which has been analyzed in relation to the context of national policy processes. The different dimensions of national policy processes play an important role concerning the timely and correct transposition of EC directives. We have performed a comprehensive comparative analysis of relevant secondary sources combined with a series of in-depth expert interviews to gain as rich and accurate as possible insight into the different national transposition instruments and techniques as well as the way in which the techniques and instruments used are embedded in the national policy processes. Interviews have been conducted in Denmark, France, the United Kingdom and Spain, based on the comparability of these countries with the Netherlands and the variety of legal instruments and techniques involved. The analyses of Italy and Germany are based on relevant written documentation only. Based on our comparison of the six countries, we have reached the following conclusions: - the introduction of special legal instruments and techniques for the transposition of EC Directives is not in and of itself an explanation for the improvement of timeliness in the transposition of directives; - the regular national legal system (including the common legislative procedures and legal instruments) is the point of departure for transposition. As a consequence, the national legal system is commonly used in the countries involved in this research; - there does not seem to be a preferred or best technique for the transposition of directives that is not already being used in the Netherlands; - delays in transposition are caused by combinations of several constitutional, legal, political and operational factors whose effect cannot be judged independently. Rather, these effects can only be considered interrelated elements of the national system; - important sets of legal factors improving the speed of transposition are the transposition of directives with delegated instruments (subordinated legislation), avoiding national "extras" when transposing directives and avoiding complications at the transposition stage by anticipating transposition issues during the negotiation stage of a directive; - important political factors are: giving priority to transposition and activating the national Parliament at the negotiation stage; and - important operational factors include clear-cut lines of administrative responsibilities for transposition, working with multidisciplinary project teams, and accurate and frequent monitoring of progress. Of these conclusions we have highlighted those which are particularly relevant for the Dutch situation. On the basis of these findings, we have recommended the Dutch government the following: - involve the Dutch Parliament by introducing a parliamentary scrutiny reserve, - pursue an active strategic policy with respect to the transposition of EC directives by organizing more efficiently responsibilities for the monitoring of progress for the transposition, - transpose the directive by the lowest possible legal instrument and use the existing legislative system and instruments to the full extent, instead of introducing new, special transposition instruments or procedures, that are alien to our constitutional system; - try to generate broadly-based and joint Dutch influence on European dossiers