# EUR-Lex - 52012DC0714 - EN

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# 52012DC0714

**REPORT FROM THE COMMISSION 29TH ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW (2011) /* COM/2012/0714 final */**

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Report from the Commission
29th Annual Report on Monitoring the Application of EU Law
(2011)

Introduction

The
European Union cannot achieve its policy goals if Member States do not apply EU
law effectively on the ground. The respective responsibilities for the
Commission and the Member States are clearly defined in the Treaties.  The
Member States are responsible for the correct application of the acquis[1], with the
obligation to transpose directives in a correct and timely manner.  The
Commission has the responsibility for monitoring the Member States’ efforts and
ensuring compliance with EU law, including the resort to formal legal
procedures.

With a
view to effective policy implementation, the Commission works in partnership
with the Member States to try to solve in an efficient and satisfactory manner,
problems and complaints from citizens, business, NGOs and other stakeholders,
concerning the application of EU law before starting formal infringement
procedures.

Should
these problem solving efforts not be successful, the Commission may launch
formal infringement procedures (under Article 258 TFEU[2]).  These
procedures may concern late or incorrect transposition of directives or bad
application of the law.

This
Report reviews performance on key aspects of the application of EU law and
provides an overview of strategic issues.  Performance and challenges in the
application of EU law by sector and by Member State are examined in the Staff
Working Documents accompanying this Report.

1.
Transposition of directives
1.1.
Overview of the 2011 transposition work

Member
States had to transpose more directives in 2011 compared to the previous year
(i.e. 131 in contrast to 111 directives in 2010).

There
has been a significant increase in late transposition in 2011 compared to the
previous year.  The Commission launched 1185 late transposition infringements
in 2011 compared to 855 in 2010 and 531 in 2009.  Compared to the end of 2010,
763 late transposition cases were open at the end of 2011, representing a 60%
increase. Monitoring late transposition is a Commission priority[3] and the
Commission proposes fines under the special penalty regime established by
Article 260(3) TFEU against Member States if they do not transpose directives
in time (details in point 1.2 below).

The
following chart contains the key figures[4]
on late transposition infringements initiated by the Commission during 2011:

The following
table shows late transposition infringements by Member State:[5]

The
three policy areas where the most late transposition infringements were
launched in 2011 were transport (240 procedures), internal market &
services (198) and health & consumers (164).

Many of
these cases concerned a large number of Member States.  For example, the
Commission launched procedures against 23 Member States concerning late
transposition of the directive on energy-efficient transport vehicles.[6] Similarly, 22
Member States were involved in late transposition infringements under the
directive on road infrastructure safety management,[7] 23 were
launched concerning the directive on public procurement in the defence and
security sector[8]
and the UCITS recast directive[9]
triggered the same number.  Late transposition infringements were launched
against 12 Member States concerning the market authorisation of medicinal
products.[10]

1.2.
Referrals to the Court under Articles 258 /
260(3) TFEU

Under
Article 260(3) TFEU, when referring a late transposition infringement to the
Court according to Article 258 TFEU, the Commission may specify financial
penalties without having to wait for a first judgment.

The
purpose of this innovation in the Lisbon Treaty is to give a stronger incentive
to Member States to transpose directives within the deadlines laid down by the
legislator and hence to ensure that Union legislation is genuinely effective.

The
Commission referred the first late transposition infringement to the Court with
a request for financial sanctions under Article 260(3) TFEU in late 2011.[11] Five Member
States were involved in nine such decisions in 2011: Austria (1 case), Germany (3), Greece (1) Italy (1) and Poland (3). The proposed daily penalty ranged from
€ 44,876.16 to € 215,409.60 (lump sum payments were not requested).

The
Member States’ infringement profiles in the Staff Working Document contain more
detailed information on these cases.

2.
Incorrect transposition and bad application of EU
laws

While
the Commission in its duty as guardian of the Treaty conducts its own enquiries
to detect infringements of EU Law (point 2.1.2), citizens, businesses and stakeholder
organisations make a significant contribution to such monitoring task by
reporting shortcomings in the transposition and/or application of EU law by
Member State authorities (see complaints under point 2.1.1).  Once detected,
problems are followed up by bilateral discussions between the Commission and
the Member State concerned in order to remedy them, to the extent possible,
using the EU Pilot platform.

2.1.
Detection of problems and informal solutions
2.1.1.
Complaints

Complaints
are submitted by citizens, businesses, NGOs or other organisations. They are
handled in line with the Commission’s Communication on the handling of
relations with the complainant in respect of application of Union law[12] which sets a
target of 12 months for the closure of a case or the launch of the formal
procedure from the registration of a complaint. The chart below shows the key
data[13]
on citizens’ complaints in 2011:

3115
new complaints – The three Member States against which
the most complaints have been filed were Italy (386 complaints), Spain (306) and Germany (263). Citizens, businesses and organisations reported irregularities
especially in connection with environment, internal market & services and
justice affairs (604, 530 and 434 complaints, respectively).

3078
processed complaints – Following an initial
assessment of more than three thousand submissions in 2011, the Commission
opened bilateral discussions with the Member State concerned in relation to 619
complaints in order to clarify whether EU rules had been breached.[14] Complaints
that led to bilateral discussions were most frequently related to environment,
internal market & services and taxation & customs union (149, 101 and
87 pre-infringement files, respectively). Bilateral discussions with Member
States are dealt with within EU Pilot (see under point 2.1.3).

Petitions
by citizens to the European Parliament continued to point out deficiencies in
the way how Member States apply EU law. Environment, employment, justice &
fundamental rights, regional policy and health & consumers issues received
particular attention from the European Parliament. Detailed information on
petitions is provided in the Staff Working Document (Part II).

2.1.2.
Own initiative cases

The
Commission’s own findings also reveal potential EU law infringements. Similarly
to complaints, the Commission initiates first a bilateral discussion with the Member State concerned with a view to find a speedy solution. 1271 investigations were
launched during 2011. Environment, transport and taxation & customs union were
the three policy areas where the most potential infringements were identified
(376, 178 and 177 new files, respectively). The Member States primarily
concerned were Italy, Spain and Poland (125, 113 and 81 new files,
respectively).

Some
formal infringement procedures were launched directly by the Commission,
without using EU Pilot, by sending a letter of formal notice under Article 258
TFEU. These exceptional cases included:

· The actions of 20 Member States within the OIV (Organisation
Internationale de la Vigne et du Vin); and

· The bilateral agreement between Italy and China exempting holders of
diplomatic passports from the visa requirement.

2.1.3.
Partnership with Member States: EU Pilot

EU
Pilot is a Commission initiative aimed at responding to questions and
identifying solutions to problems related to the application of EU law.  It is
supported by an on-line data base and communication tool.  EU Pilot provides
the opportunity to resolve problems before entering into formal infringement
procedures. Given that cases should, in principle, be dealt with within 20
weeks, EU Pilot dialogue facilitates speedy resolution of problems.

Participation
of Member States in EU Pilot has been phased in gradually. By the end of 2011,
25 Member States had signed up and preparatory work was well advanced with the
remaining two.[15]
The following chart contains the main EU Pilot figures[16] for 2011:

1201
new dossiers during 2011 – This figure is composed of
510 complaints confirmed by the Commission and 691 new own initiative files.

700
files were closed during 2011 – Of the 700 EU Pilot files in
2011, the Commission closed 508 files because the Member State provided a
satisfactory response. This is a 72.5 % resolution rate for the Member
States (an 8.5 % decrease from the 2010 rate of 81%).[17]

1096
files remained pending – By the end of 2011, most of
the EU Pilot files were addressed to Italy (371), followed by Spain (365) and Germany (193). From the point of view of policy areas, environment was the leading
field with 335 open dossiers before internal market & services (129) and
taxation & customs union (117).

The
Commission closed 183 EU Pilot files last year by launching formal infringement
procedures. Negative outcomes of the procedure under EU Pilot were most
frequent in dossiers on environment (49 such cases), taxation and customs union
(24) and transport (21 refusals).  Italy, Poland and Spain had the highest
number of such transfers to infringement proceedings (21, 15 and 14 files,
respectively).

The
latest Evaluation Report on EU Pilot[18]
provides more detailed information.

2.2.
Infringement procedures

If a Member State does not resolve the alleged breach of EU law, the Commission launches
infringement procedures under Art 258 TFEU[19]
and may refer the dispute to the Court of Justice of the European Union (the
“Court”).

At the
end of 2011, 1775 infringement cases were open.[20] The number of
open infringement cases has been falling year on year - 2100 cases in 2010 and
nearly 2900 cases in 2009. The following charts break down infringements
according to Member States and policy areas:

Discussions
between the Member State and the Commission continue during the formal
procedure, in order to bring national law in line with EU legislation.
Statistics confirm that Member States make serious efforts to settle their
infringements without Court procedures.[21]
During 2011:

· the Commission closed 203 infringements after sending the letter of
formal notice;

· a further 167 cases were solved after reasoned opinion were sent to
the Member State; and

· 29 infringements were closed (or withdrawn from the Court) after the
Commission decided to refer the case to the Court.

In
total, 399 infringement cases were closed because the Member State has demonstrated its compliance with EU law. The Court had delivered 62 judgements under
Article 258 TFEU in 2011, out of which 53 judgments (85 %) were in favour
of the Commission.

Member
States usually take the necessary measures to comply with the judgment of the
Court in a timely manner. However, at the end of 2011, the Commission still had
to continue 77 infringement procedures under Article 260(2) TFEU given that
Member States failed to comply with Court judgments. Most of these cases
concerned Greece (13), Italy (12) and Spain (8). Almost half of the Article
260(2) TFEU infringements related to environment (36) with a few cases also in
the fields of internal market & services (10) and transport (8).

Out of
these 77 cases, 11 had already been referred to the Court for the second time
at end-2011. Only two Court judgements were delivered under Article 260(2) TFEU
last year, against Greece[22]
and Italy[23].
In principle, a Court judgment under Article 260(2) TFEU imposes lump sum
and / or daily penalty on the defaulting Member State. The latter
must pay immediately the lump sum while paying the daily penalty until it
reaches full compliance with the first Court judgment.

3.
Infringements in the Policy cycle
3.1.
Infringement data - a trigger for action

The
data on performance of Member States in the application of law feeds into the
policy cycle.  A high frequency of infringements points to possible
implementation problems which need solutions (e.g. amending existing rules,
clarifying the interpretation of existing laws or possibly preparing new
laws).  Some of the strategic initiatives in the 2011 Commission Work Programme
were designed specifically in response to implementation problems.

· The new legislative proposal for posting of workers aimed at
improving “the implementation and application in practice of Directive 96/71/EC
on Posting of Workers”[24];

· The proposal for a new legal framework on the freezing and
confiscation of proceeds of crime acknowledges that due to the unclear existing
EU legal framework, “several provisions have not been transposed or properly
implemented into national legislation”[25];

· The initiative to amend the Capital Requirements Directives (CRD IV)
argued that “numerous national options and discretions in the earlier CRD
prevented a consistent implementation of the capital requirements across Europe...”[26].

3.2.
Better Preparation and Planning for
Implementation

Understanding
the challenges of transposition and application of law are essential at the
early stages of policy development (for example, at the stage of the impact
assessment).  In order to be able to assess whether a proposal is sound, the
Commission needs to have an idea at an early stage of how it might be
implemented in the Member States.

Looking
at the implementation challenge at the impact assessment phase facilitates
further work on implementation downstream.  The Commission can support the
competent national authorities in ensuring the correct transposition and
application of EU rules by identifying the main risks for timely and correct
implementation of new (or amended) pieces of legislation and recommending
actions to mitigate those risks in implementation plans.

The
Commission prepared a number of implementation plans for strategic initiatives
in 2011. These included insider dealing and market manipulation (market abuse)[27]; alternative
dispute resolution for consumer disputes[28];
amendments to Directive 2006/43/EC on statutory audits of annual accounts and
consolidated accounts[29];
and the Common Consolidated Corporate Tax Base[30].

Other
forms of support to the Member States include bilateral contact between the
national administrations and the Commission, convening of expert groups and the
release of guidelines, handbooks, interpretative notes and working papers.

3.3.
Sharing Information – Towards a Better Knowledge
Base

It is
essential for 'Smart Regulation' objectives that citizens and businesses
understand how EU legislation is being applied in Member States. In 2011 a
long-standing disagreement between EU institutions in this area could be
solved.  The disagreement concerned the way Member States have to explain in
detail how they transpose directives into their legal order (see the section on
"Correlation tables" in the previous Annual Reports on Monitoring the
Application of EU Law).

The
solution agreed between the EU institutions is set up in Joint Political
Declarations and took effect as from 1 November 2011[31]. Under these
arrangements the Commission may request, on a case-by-case basis and with
proper justification, the transmission of 'explanatory documents' by the
Member States. If the Member States consider it useful these documents can also
take the form of a correlation table. Explanatory documents have to illustrate
the relationship between national transposing rules and the specific provisions
of a given directive. The directive’s preamble will contain a recital referring
to the Member States’ political commitment to submit to the Commission one or
more explanatory documents.

The
first review to see whether these Declarations achieved their objectives will
be done by 1 November 2013.

4.
conclusions

The
correct application of EU law continues to present challenges for the Member
States. Problems are frequent in the early stages of implementation, with late
transposition becoming increasingly problematic.  Late transposition
infringements have steadily increased for the past three years, indicating a
worrisome trend.  However, once the Commission opens infringement procedures,
national measures are usually notified swiftly.

Problem
solving mechanisms are working.  During 2011, a further 7 Member States joined
EU Pilot, bringing the total number of participants up to 25.  The problem
solving discussions under EU Pilot allowed for timely resolution of nearly two
thirds of potential infringements in 2011.

The
number of formal infringement procedures launched continued to decrease as did
the number of cases referred to the ECJ.  This reflects in part the success of
EU Pilot and that Member States have made serious efforts to bring their laws
or practices in line with EU law once a procedure is launched.

The
Commission as Guardian of the Treaties will continue to actively monitor the
application of EU law.  With implementation being key for successful and
efficient policy-making at EU level and an integral component of the
Commission's Smart Regulation agenda, infringement performance data is also
being more systematically fed into the policy development cycle, in particular
into evaluations.

[1]               By the end of 2011, the acquis of the EU
consisted of 8862 regulations (2010: approx. 8400) and 1885 directives (2010:
approx. 2000) in addition to the primary law (the Treaties).

[2]               It should be noted that infringement procedures can
also be initiated under other provisions of EU law, for example Article 106
TFEU in combination with Articles 101 or 102 TFEU.

[3]               Commission Communication on 'A Europe of results –
Applying Community law', COM(2007)502
final, p. 9.

[4]               From the sum of the 2010 open LTIs and the 2011 new LTIs
(470+1185=1655), the number of closed LTIs is deducted (1655-893=763).

[5]               The table below indicates the number of late
transposition infringements open on 31 December 2011, irrespective of the year
when the infringement was opened. By contrast, the section “Transposition of
directives” in the Member State pages of Annex I shows how many new late
transposition infringements were initiated against the Member States in 2011.

[6]               Directive
2009/33/EC on the promotion of clean and energy-efficient road transport
vehicles

[7]               Directive
2008/96/EC on road infrastructure safety management

[8]               Directive
2009/81/EC on the coordination of procedures for the award of certain works
contracts, supply contracts and service contracts by contracting authorities or
entities in the fields of defence and security

[9]               Directive 2009/65/EC
on the coordination of laws, regulations and administrative provisions relating
to undertakings for collective investment in transferable securities (UCITS)

[10]             Directive
2009/53/EC amending [previous directives], as regards variations to the
terms of marketing authorisations for medicinal products

[11]             The Commission Communication
on the Implementation of Article 260(3) of the Treaty on the Functioning of the
European Union contains detailed guidelines on how the Commission applies this
Article.

[12]             COM(2002)141
final This Communication has been replaced by COM(2012)154
on 2 April 2012.

[13]             From the sum of the 2010 open complaints and the 2011
new complaints (2197+3115=5312), the number of processed complaints is deducted
(5312-3078=2234).

[14]             The rest of the complaints have not been further
processed because either EU laws were not breached or the Commission lacked
competence or the correspondence did not qualify as complaint. It is also noted
that in urgent and exceptional cases, the Commission may decide to address a
letter of formal notice (Article 258 TFEU) to the Member State without prior
bilateral discussion.

[15]             Belgium, Poland Latvia and Romania joined EU Pilot in
January 2011, followed by Cyprus in March. After France and Greece had entered in September 2011, only Luxembourg and Malta remained outside the system in 2011.

[16]             From the sum of the 2010 open EU Pilot files and the
2011 new EU Pilot files (1384+1201=2585), the number of processed files is
deducted (2585-804=1781).

[17]             28th Annual
Report on Monitoring the Application of EU Law (2010)

[18]             Second Evaluation Report
on EU Pilot, published on 21 December 2011

[19]             Or under other provisions of the TFEU, see footnote 2
above.

[20]             This includes all procedures where the Member State has received at least a letter of formal notice from the Commission under
Article 258 TFEU.

[21]             The following figures were calculated for
complaint-based and own initiative cases and do not include data on late
transposition infringements, which are discussed in point I above.

[22]             Commission v Greece, C-407/09
(lump sum payment amounting to € 3.000.000,00)

[23]             Commission v Italy, C-496/09
(lump sum payment amounting to € 30.000.000,00)

[24]             Roadmap
and Proposal
to a directive on the enforcement of Directive 96/71/ec on posting of workers

[25]             Roadmap
and Proposal
for a directive on the freezing and confiscation of proceeds of crime

[26]             Roadmap
and Proposals (1,
2)
to amend the Capital Requirements Directives (CRD IV) 2006/48/EC and 2006/49/EC

[27]             COM(2011) 651 final

[28]             COM(2011) 793 final

[29]             COM(2011) 778

[30]             COM(2011)
121/4

[31]
         Joint Political Declarations on explanatory
documents dated 28 September 2011 (OJ
C 369, 17.12.2011, p. 14–14OJ C 369, 17.12.2011, p. 14–14) and 27 October
2011 (OJ
C 369, 17.12.2011, p. 15–15)