COUNCIL RESOLUTION

of 29 June 1995

on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market

(95/C 188/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to Declaration (No 19) on the implementation of Community law, annexed to the Final Act of the Treaty on European Union, adopted by the Conference of Representatives of the Governments of the Member States on 7 February 1992,

Having regard to the Council resolution of 7 December 1992 on making the Single Market work (1),

Having regard to the Commission communication to the Council of 22 December 1993 entitled: 'Making the most of the internal market - strategic programme` (2),

Having regard to the Council resolution of 16 June 1994 on the development of administrative cooperation in the implementation and enforcement of Community legislation in the internal market (3),

Having regard to the Commission communication to the European Parliament and the Council of 3 May 1995 on the role of penalties in implementing Community internal market legislation (4),

Whereas in the field of the internal market the Community has moved from an intensively legislative phase to a phase focusing on the effective operation of common rules; whereas, in particular, it is a matter of ensuring that directives are properly transposed into national law and, more generally, that Community rules are uniformly and effectively implemented, in accordance with the conclusions of the Essen European Council (1994);

Whereas effective penalties are one component of the total package of measures intended to ensure that internal market rules are applied;

Whereas Article 5 of the Treaty states that the Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community;

Whereas, according to Declaration (No 19) on the implementation of Community law, while recognizing that it is for each Member State to determine the best way of applying the provisions of Community law, having regard to its own institutions, legal system and other national circumstances, it is considered essential, for the smooth operation of the Community, that the measures taken in the various Member States should result in Community law being applied there with the same effectiveness and thoroughness as national law;

Whereas, in particular, the absence of effective, proportionate and dissuasive penalties for breaches of Community law could undermine the very credibility of joint legislation and affect the situation of citizens of the Union, in certain cases possibly harming conditions of competition and the general interests referred to in the common rules;

Whereas certain Community acts contain provisions on the penalties applicable in the event of failure to comply with the measures laid down in them;

Whereas, as in clear from decisions of the Court of Justice (5), if a Community regulation makes no specific provision for a penalty in the event of a breach or refers to national laws, regulations or administrative provisions on this point, Article 5 of the Treaty requires the Member States to take any appropriate measures to guarantee the scope and effectiveness of Community law by, inter alia, making the chosen penalty effective, proportionate and dissuasive;

Whereas particular attention should be paid, in appropriate ways, to the internal market;

Whereas a consistent joint approach to the effectiveness of penalties applicable within the single market may help to ensure both fair competition under fair conditions and the protection of the general interests referred to in the common rules;

Whereas penalty provisions must also be considered in the context of the transposition of Community acts into the national legal systems of the Member States;

Whereas, having regard to the occasionally significant differences the Commission has noted in its analysis of the transposition and application of common rules, it is important to ensure transparency, by improving it, in national penalty arrangements so as to enable their effectiveness, proportionateness and dissuasiveness to be confirmed, as the Commission emphasized in its communication presented on 3 May 1995;

Whereas if there prove to be serious difficulties for the smooth operation of the internal market due to disparities in national penalty arrangements, solutions will have to be sought, when necessary, so that penalties are such as to ensure that legislation is applied equally effectively throughout the Union, with due regard for the respective jurisdictions of the Community and its Member States and the principles of Member States' national law, in the light of the subsidiarity and proportionality principles, in accordance with the conclusions of the Edinburgh European Council (1992);

Whereas other measures also contribute to the smooth operation of the internal market, in particular the development of administrative cooperation and improving the efficiency of complaints procedures;

EMPHASIZES, like the Commission, that the proper application of Community law depends first of all on the correct and effective transposition of common rules into national legislation and smooth administrative cooperation, itself based on transparency; that, in accordance with the Council resolution of 16 June 1994 referred to above, and in the light of the outcome of the studies conducted by the Commission, such administrative cooperation must be strengthened, where necessary, in sectors where it is under-developed and must in any event satisfy the requirements of effective uniform application of Community rules;

CONFIRMS that for the smooth operation of the Community it is essential to increase mutual trust and transparency between administrations and, accordingly, to ensure the effective, uniform and efficient enforcement of Community legislation in all Member States;

RECOGNIZES that both the scope of internal market legislation and the specific nature of the areas concerned call for a soundly based pragmatic and sectoral approach to the question of penalties;

AGREES that the transparency of national penalty arrangements applicable in the event of failure to comply with the obligations arising from Community law is necessary to enable the Community to ensure that such national arrangements are proportionate and dissuasive and that such transparency is, therefore, likely to restrict Community intervention in this area to that which is strictly necessary for the smooth operation of the internal market in each sector concerned; that if there prove to be serious difficulties for the smooth operation of the internal market due to disparities in national penalty arrangements, solutions will have to be sought when necessary, so that penalties are such as to ensure that legislation is applied equally effectively throughout the Union, with due regard for the respective jurisdictions of the Community and the Member States and the principles of Member States' national law, and in the light of the subsidiarity and proportionality principles;

REQUESTS the Member States to:

(a) give active support to the discussions on penalties in the internal market;

(b) respond to the Commission's invitation to cooperate in the studies it has already begun on these questions;

(c) take action to ensure that, when Community acts are transposed into national legislation, Community law is duly applied with the same effectiveness and thoroughness as national law and that, in any event, the penalty provisions adopted are effective, proportionate and dissuasive;

(d) ensure that they forward to the Commission, when necessary, in the context of informing it of the transposition and application of Community law, any useful information on their own penalty arrangements in force;

ENCOURAGES the Commission, in its role as watchdog of the Treaties and in the framework of its power to act, to:

(a) ensure that directives are correctly transposed into national legislation and, more generally, ensure that Community internal market legislation, including legislation in the matter of penalties, is effectively and efficiently implemented and to continue its efforts to develop administrative cooperation where necessary and to improve the efficiency of complaints procedures;

(b) continue and extend the studies which it has already initiated in areas where particular problems are experienced and for which specific responses could be prepared;

(c) include, where necessary, in future Community Acts proposals provisions on penalties, taking into account the examples of forms of words suggested in its communication referred to above of 3 May 1995;

(d) ensure that the applicable penalty provisions henceforth form part of the measures the notification of which is explicitly required under the Community internal market provisions;

(e) take the necessary action or formulate proposals for providing appropriate solutions for problems appearing in the context of the transparency thus organized, including, if necessary, proposals for ensuring that penalties are such as to ensure that legislation is applied equally effectively throughout the Union, with due regard to the respective jurisdictions of the Community and the Member States and for the principles of Member States' national law, in the light of the subsidiarity and proportionality principles;

(f) consider the problem of the penalties applicable for breaches of Community law in its annual report on the effective application of Community law;

UNDERTAKES to examine openly and constructively any proposals which the Commission may formulate over the coming months, in order to ensure that penalties applicable to breaches of the internal market rules are effective, proportionate and dissuasive.

(1) OJ No C 334, 18. 12. 1992, p. 1.

(2) COM(93) 632 final.

(3) OJ No C 179, 1. 7. 1994, p. 1.

(4) COM(95) 162 final.

(5) ECR 1989, Case 68/88, points 23 and 24, p. 2984.