[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 24.7.2006

SEC(2006) 999

COMMISSION STAFF WORKING DOCUMENT

Annex to the23rd ANNUAL REPORT FROM THE COMMISSIONON MONITORING THE APPLICATION OF COMMUNITY LAW(2005){COM(2006) 416 final} SITUATION IN THE DIFFERENT SECTORS

TABLE OF CONTENTS

1. INTRODUCTION –STATISTICS 6

1.1. Transposition of directives 6

1.2. Cases referred to the Court of Justice under Article 228 of the Treaty establishing the European Community (developments in 2005) – table 7

1.3. Implementation of the Commission communication on better monitoring of the application of Community law (COM(2002)725) by sector 9

1.4. Infringement proceedings arising from petitions presented to the European Parliament 23

1.5. Consultation with the Member States and Commission departments on “improving the application of Community law” 26

2. THE SITUATION IN THE DIFFERENT SECTORS 26

2.1. Agriculture 26

2.2. Education, training, culture and multilingualism 27

2.3. Employment, social affairs and equal opportunities 29

2.3.1. Free movement of persons 29

2.3.2. Equal treatment of men and women 30

2.3.3. Equal treatment – non-discrimination (Article 13 EC) 31

2.3.4. Working conditions 32

2.3.5. Health and safety at work 33

2.4. Enterprise and industry 36

2.4.1. Chemicals 36

2.4.2. Pharmaceutical products 36

2.4.3. Cosmetics 37

2.4.4. Equipment (gas appliances, measuring equipment, pressure vessels) 38

2.4.5. Mechanical and electromechanical equipment 38

2.4.6. Medical devices 39

2.4.7. Motor vehicles, tractors and motorcycles 39

2.4.8. Construction products 40

2.4.9. Recreational craft 40

2.4.10. Cableway installations 40

2.4.11. Payment delays 40

2.4.12. Cultural goods 41

2.4.13. Preventive rules provided for by Directive 98/34/EC 41

2.4.14. Defective products 42

2.4.15. Weapons 42

2.4.16. Non-harmonised areas (Articles 28 to 30 of the EC Treaty) 42

2.5. Environment 45

2.5.1. Environmental impact assessment 45

2.5.2. Air 46

2.5.3. Water 48

2.5.4. Nature 52

2.5.5. Waste 55

2.5.6. Other sectors 59

2.6. Information society and media 61

2.6.1. Electronic communications 61

2.6.2. Audiovisual policy and media 65

2.6.3. Re-use of public sector information 67

2.6.4. Electronic signature 67

2.7. Justice, freedom and security 68

2.7.1. Transposition of directives on asylum and immigration 68

2.7.2. Free movement of persons 69

2.7.3. Visas 70

2.7.4. Judicial cooperation in civil matters 70

2.7.5. Data protection 71

2.8. Internal market and services 72

2.8.1. Regulated professions (qualifications) 72

2.8.2. Freedom to provide services and freedom of establishment 72

2.8.3. The business environment 76

2.8.4. Free movement of capital (application of Articles 56 et seq.) 78

2.9. Health and Consumer Protection 79

2.10. Energy and transport 81

2.10.1. Energy 82

2.10.1.1. Internal market for electricity and natural gas 82

2.10.1.2. Energy efficiency 83

2.10.1.3. Hydrocarbons 83

2.10.1.4. Biofuels 84

2.10.1.5. Euratom Treaty 84

2.10.2. Transport 85

2.10.2.1. Road transport 85

2.10.2.2. Rail Transport 86

2.10.2.3. Intermodal transport 88

2.10.2.4. Air transport 88

2.10.2.5. Maritime transport 90

2.10.3. Transposition of energy and transport directives 92

2.11. Fisheries and maritime affairs 93

2.12. Taxation and Customs Union 94

2.13. Financial programming and budget 95

2.14. EU statistics 96

2.15. Regional policy 98

2.16. Enlargement 98

2.17. Trade 99

2.18. External relations and European neighbourhood policy 99

2.19. Competition 99

2.19.1. Electronic communications 100

2.19.2. Directive on transparency and other State aid cases 100

2.20. Administration 101

Each year the European draws up a report on the monitoring of application of Community law, in response to requests made by the European Parliament (resolution of 9 February 1983) and the Member States (point 2 of Declaration No 19 annexed to the Treaty signed at Maastricht on 7 February 1992). The report also responds to the requests expressed by the European Council or the Council in relation to specific areas of activity.

INTRODUCTION –STATISTICS

Transposition of directives

The percentages set out in the various tables which follow show the efforts made by the Member States to notify the Commission of national implementing measures (MNE) adopted.

The table below provides an overview of the directives for which the deadline for implementation had expired on 31 December 2005 and the directives for which implementing measures had been notified by the Member States. It is possible to see that, as this reference publication permits a degree of control/monitoring and the Commission supplies information to the Member States, the transposition rates have improved as a result of a sustained effort on the part of the Member States:

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To make comparison easier, the data are set out here in the form of tables, in columns and ranked by Member State, for the two reference dates given:

- 4 January 2006:

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These percentages reflect the efforts made by the Member States to notify the Commission of the national implementing measures adopted. The tables include all the communications received through official channels by the Secretariat General for all directives. All directives (both those in force and those that have been repealed) listed in the “Infringements” database[1] are included. The regular updating of this data involves changes to each new edition. The data on the notification of national implementing measures is published on the EUROPA website[2] every two months (six times a year) for information. The information set out above is taken from the final list for 2005.

Cases referred to the Court of Justice under Article 228 of the Treaty establishing the European Community (developments in 2005) – table

New cases tried in 2005 are in bold.

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C = Closed / D = withdrawn / Blank = before the Court.

Implementation of the Commission communication on better monitoring of the application of Community law (COM(2002)725) by sector

In the education and culture sector , as regards access to education and vocational training, Member States may not, under Article 12 of the EC Treaty, allow any direct or indirect discrimination on grounds of nationality. The legal bases for which DG Education, Training, Culture and Multilingualism is responsible therefore include Articles 12, 149 and 150 of the EC Treaty. DG Education, Training, Culture and Multilingualism is not responsible for monitoring application of the directives.

Infringement procedures are initiated following complaints. Complainants must be dealt with in accordance with the Commission’s Code of good administrative behaviour, as required by the Communication. DG Education, Training, Culture and Multilingualism keeps complainants informed systematically of the progress of the infringement procedure which concerns them. If an infringement procedure cannot be initiated as a result of a complaint, the complainant is informed and, if appropriate, is advised to use the legal remedies available at national level.

In sensitive cases, DG Education, Training, Culture and Multilingualism organises meetings with the Member States’ authorities to discuss any problems and remind them of their duty to comply with Community law. A working party was set up with the participation of the Member States’ authorities following the Court judgment in Case C-209/03; it discussed the consequences of this judgment, and of judgments C-65/03 and C-147/03.

DG Education, Training, Culture and Multilingualism cooperates with the SOLVIT Problem Solving Network, which deals with individual cases which do not entail any problems of incompatibility of national law with Community law.

Since the infringements which DG Education, Training, Culture and Multilingualism is responsible for monitoring undermine the fundamental principle of equal treatment under Article 12 EC, it has not as yet called upon the priority criteria relating to the seriousness of cases. It has successfully taken action against all the cases of non-compliance with this principle in the field of access to education.

In the employment sector , infringements for which DG Employment is responsible cover the panoply of the priority criteria set out in the 2002 Communication.

On the one hand, a number of cases concern the presumed wrong application of treaty articles and/or secondary legislation rules (i.e. provisions in regulations) in the area of social security and the free movement of workers: they concern in particular infringements that risk to undermine the foundations of the rule of law (i.e. criterion a) and/or the smooth functioning of the Community legal system (criterion (b). On the other hand, infringements in the area of labour law, health and safety at the work place, as well as in the area of non discrimination (directives ex Article 13 EC, for which the deadline of transposition expired in 2003), mostly concern a lack of communication of the necessary national transposition measures or incorrect transposition (criterion c). The infringements in the area of equal treatment between men and women mainly deal with non conformity issues (usually originated by individual complaints, written questions or petitions). Furthermore, in all the areas concerned, a systematic follow-up has been provided, if necessary, in cases where a Member State has failed to comply with a judgment of the ECJ for violation of its obligations under Community law.

In respect of the use by the 'EU-15' Member States of the safeguard clauses provided for in the transitional provisions of the Accession Treaties for the free movement of migrant workers, and related similar issues, the relevant national legislation(s) has been examined and, if necessary, infringements were launched.

Unfortunately a systematic examination of all the potential (non) conformity issues raised could not always be provided, due to lack of resources and of availability of the necessary translations. In particular, it has been nearly impossible to systematically follow-up on all potential issues raised in QE and petitions. Furthermore, it has proven impossible to systematically pursue all individual situations which, at first sight, did not necessarily amount to (or revealed) a constant administrative practice contrary to Community law.

However, in this context, for instance the Advisory Committee on Social Security for Migrant Workers (Commission Administrative), a network of intergovernmental experts and representatives established under Regulation 1408/71, has proven to be a very useful and successful network both by effectively trying to solve existing problems and by intervening in the upstream, fact-finding phase, thus preventing and pre-empting problems. Furthermore, it regularly addresses a considerable number of questions and issues concerning the interpretation of the existing Community legislation applicable and presumed wrong application, as well as the technical implications and possible solutions for administrative, more technical problems in relation to the existing legal framework.

Through the combined use of existing expert groups in the different areas, cooperation at a more technical level, bilateral meetings and contacts, ad hoc missions, sectorial package meetings, participation in training, information and transparency campaigns (such as the 'TRESS' network), as well as continuing the pre-accession monitoring contacts, a number of potential non conformity problems could also be tackled efficiently or effectively solved.

In 2003, DG Enterprise and Industry introduced a preventive mechanism to offer advice and assistance to Member States in implementing “difficult” directives in certain sectors. The aim was to anticipate problems which might arise with national implementing measures. In 2005 this mechanism was called upon for the implementation of the legislative package “Review 2001” which includes Regulation (EC) No 726/2004 and Directives 2004/27/EC and 2004/28/EC and reviews in depth the regulatory framework applicable to pharmaceutical products.

The work of the following working parties was mainly concerned with interpreting “Review 2001” in preparation for its transposition and implementation by the Member States:

- the Pharmaceutical Committee in its meetings of June, September and December 2005,

- the Committee for Veterinary Medicinal Products and

- the “Notice to applicants” group, which at its monthly meetings in 2005 examined the various chapters of the guidelines for notices to applicants by interpreting the requirements of the legislation as regards requests for marketing authorisation.

The Committee on Technical Standards and Regulations met three times in 2005. It raised a variety of questions with the Member States and applicant countries, such as the proper use of the notification procedure and its role as an instrument of transparency, prevention and mutual monitoring.

DG Enterprise and Industry also took part in various forums, such as those organised by the European Medicines Agency or the Member States, to present guidelines for the transposition and implementation of legislation. The most important meeting was the regular meeting of the heads of the medicines agencies.

Four package meetings were organised in 2005 with particular Member States (Germany, Denmark, France and Slovenia) in connection with the application of Articles 28-30 of the Treaty. Of the 28 cases discussed, 10 were resolved or are on the point of being resolved. Of the rest, there are only three cases left in which there are major differences between the positions of the Commission and the Member States.

Now that the harmonised and non-harmonised products sectors are both the responsibility of DG Enterprise and Industry, all important bilateral problems relating to the transposition of directives in these sectors will in future be included on the agenda of these package meetings.

In the environment sector , despite being a very powerful tool to address implementation problems, infringement proceedings pursuant to Articles 226 and 228 of the Treaty are not the only way to improve Member States’ compliance with EC environmental law. In order to ensure an effective implementation, the Commission is making use of a wide range of non-legal instruments and initiatives aimed at promoting better implementation and at identifying and addressing potential problems as early as possible. This is in line with the 2002 Communication of the Commission on better monitoring of the application of Community law[3].

These non-legal instruments include the production of interpretation and guidance documents for many pieces of legislation. In the waste sector a guidance document was issued in 2005 on the end-of-life vehicles Directive[4] and on Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment ("WEEE" Directive) and on Council Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment ("RoHS" Directive)[5]. In the air sector the Commission adopted in December 2005 a guidance document on allocation plans for the 2008 to 2012 trading period of the EU Emission Trading Scheme[6]. As regards impact assessment, a working group involving Member States and Commission experts prepared during 2005 a new guidance document[7] on Article 2(3) of the EIA Directive[8]. Consultants have also prepared a report[9] to the Commission on the relationship between the EIA and SEA Directives[10]. In the nature sector, guidelines are being developed on compensatory measures required under Article 6(4) of the Habitats Directive[11], species protection (Articles 12 and 16 of the Habitats Directive) and marine issues in order to clarify implementation problems. These documents are valuable tools to prevent implementation problems due to a poor understanding of what is actually required under EC environmental law.

In the water sector, the Commission worked closely with Member States during 2005 in the preparation of guidance on key provisions of the Urban Waste Water Treatment Directive[12]. This document should be finalised in 2006. The Common Implementation Strategy of the Water Framework Directive (WFD)[13], an informal collaborative joint effort of Member States and the Commission to provide guidance and exchange of experiences in implementation issues, also continued in 2005. Furthermore, a guidance document on eutrophication assessment[14] was drafted including a read across between different EC environmental Directives, in particular the Water Framework Directive, the Nitrates Directive[15] and the Urban Wastewater Treatment Directive.

Better implementation is also promoted through multilateral contacts with Member States in expert groups and committees to discuss implementation issues. Under some Directives, technical committees are established, for instance the ORNIS Committee created on the basis of Article 16 of the Wild Birds Directive[16], the Habitats Committee created on the basis of Article 20 of the Habitats Directive and the standing Committee on Biocidal Products established by Article 28 Directive 98/8/EC concerning the placing on the market of biocidal products[17]. Furthermore, package meetings between the Commission and the Member States[18] and ad-hoc meetings, workshops and seminars in Member States with the participation of national, regional and local authorities are another means to improve better implementation. For some Directives the Commission gives technical advice to Member States prior to transposition in order to address implementation problems at an earlier stage. In this respect, the Environment Directorate General has begun with the WEEE and RoHs Directives to discuss with Member States how they will implement them before transposition.

Information exchange between implementing authorities through the establishment of informal implementation networks is also a tool for improving implementation.

Since its inception in 1992, the informal EU network for the Implementation of Environmental Law ( IMPEL ) , consisting of European regulators and inspectors concerned with the implementation and enforcement of environmental law, has been a key instrument in discussing the practical application and enforcement of existing legislation.

Along with the 6th Environmental Action Programme the core of IMPEL's activities concerns, amongst others, exchange of information and experiences on implementation and enforcement of existing EU environmental legislation and the development of common views on the coherence and practicality of this legislation.

A new informal network of practitioners focusing on the implementation of EC provisions in the fields of Nature and Forestry, called “ GreenEnforce ” (name still to be confirmed by the members), has been established. This network was created as an informal organisation where experts from the EU-25 and candidate countries can share information and experiences, discuss problems and offer each other practical advice.

Meeting twice in 2005, the Environment Policy Review Group ( EPRG ) provided an opportunity for Directors General of the EU Member States Environment Ministries (or equivalent) to exchange views on key topics of current interest in the environmental domain. These discussions look at innovative approaches on implementation, as well as best practices in pursuit of effective enforcement of legislation.

Created in 2003, the European Forum of Judges for the Environment aims to promote, from the perspective of sustainable development, the implementation and enforcement of national, European and international environmental law. The objectives of the Forum are to share experience on judicial training and on environmental case law and to contribute to the better implementation and enforcement of International, European and national environmental law.

In the field of competition , the Communication on better monitoring of the application of Community law is implemented primarily via the annual report on the implementation of the 2002 regulatory framework for electronic communications , produced jointly with DG Information Society and Media, which involves contacts with the national electronic communications regulators and businesses operating in the sector. At the same time DG Competition, together with DG Information Society and Media, is involved in the consultation mechanism on the market analyses and remedies proposed by the national regulatory authorities in implementation of the new regulatory framework, via communication by national regulatory authorities under Article 7 of the framework Directive 2002/21/EC (more than 100 communications in 2005). Businesses in the sector are also a direct source of information for detecting the incorrect application of the Competition Directive.

In July 2005, the Commission approved an amendment to the “Transparency” Directive[19] , following the ruling by the Court of Justice in the Altmark case[20]. This amendment provides Member States with the necessary legal certainty to allow the “old” Member States to pursue their efforts to transpose the Transparency Directive and the new Member States to fulfil their obligation to notify transposition measures.

In the information and media sector , in line with the Commission Communication on better monitoring of the application of Community law, DG INFSO has put great efforts from the very beginning into preventing the need for formal infringement proceedings.

In the field of electronic communications , the Commission continued to address implementation issues with Member States in the Communications Committee (COCOM) and with national regulatory authorities in the European Regulators Group (ERG). Following discussion in COCOM, several Recommendations on the harmonised application of the regulatory framework for electronic communications were adopted[21], namely two Recommendations concerning the provision of leased lines[22], one Recommendation on broadband electronic communications through powerlines[23], and one Recommendation on accounting separation and cost accounting systems[24]. The latter was based on input from the ERG. Other issues addressed in the ERG included the treatment of voice over broadband services, international roaming and follow-up to the 2004 ERG common position on regulatory remedies. In the field of mobile communications, the Commission set up a website containing information on international roaming tariffs across the EU[25]. This action aimed at increasing consumer awareness and was successful, with over 120,000 visitors to the site within the first week of its launch. Emphasis was also given to the implementation of the single European emergency number 112, in close cooperation with the civil protection unit of DG Environment. This issue was discussed extensively in the Communications Committee, and in October 2005 a conference was organised with public and private stakeholders[26]. In 2005 the Commission also continued to scrutinise draft measures submitted by national regulators under the so called “Article 7” mechanism which grants the Commission certain oversight powers for internal market matters. Over 200 notifications were assessed. Three cases reached the second phase of the procedure[27], for one of them the Commission issued a veto decision[28]. Furthermore, the Commission issued 61 comments letters. In November 2005, a seminar was organised to raise awareness of national judges on the issues related to national appeals for Article 7 proceedings. This was a first step towards improved cooperation with judiciaries in this field. In addition, DG INFSO for the eleventh time prepared for the Commission’s sector specific annual implementation report[29] and thereby continued to monitor the general state of implementation of the regulatory framework, in close contact with the national authorities and other stakeholders.

As regards the Television without Frontiers Directive (TVWF) , the questions of interpretation which might be raised by the application of certain rules have been discussed with the Member States in the contact committee set up under Article 23a of the TVWF Directive. If necessary, the rules in force will be clarified for the public, as was the case in 2004 with the adoption by the Commission of an interpretative communication on the rules on TV advertising[30]. The contact committee met twice in 2005 to facilitate the actual implementation of the Directive. Practical questions were also discussed at these meetings, notably the possibility of conflicts of jurisdiction between Member States over broadcasting companies. Although no such provision is made in the Television without Frontiers Directive, there is also an ad hoc group of regulators, made up of representatives of the Member States’ regulatory authorities, which meets on average twice a year also with the aim of ensuring that the regulatory framework is applied consistently within the European Union. In March 2005 Ms Reding decided that for the first time the Chairmen of these authorities would meet in Brussels to discuss the particular problem of how to apply the ban on programmes inciting hatred when the programmes concerned are transmitted by channels such as Al Manar or Sahar 1, which are based in a third country. It was decided at the meeting that there was a need for the regulators to step up their cooperation.

Regarding the Directive on Public Sector Information (PSI), the Commission has been closely monitoring the transposition process and application of the Directive both before and after the transposition deadline (1 July 2005). The accompanying measures undertaken include mainly four issues. First of all, the Commission organises and chairs the PSI Group, where experts from Member States meet from time to time, in order to provide assistance regarding transposition issues and to facilitate the exchange of good practices. Member States give up-to-date information on the state of transposition of the PSI Directive and provide examples of good practices as practical measures to enhance re-use of PSI, and the Commission gives assistance for example with the interpretation of the key provisions of the Directive. Secondly, the Commission provides expert assistance to Member States through bilateral contacts and contributes to awareness-raising activities by participating in seminars and workshops organised in Member States (in 2005 in Aix-en-Provence, Athens, Birmingham, Bristol, Ljubljana, Paris, Prague, Riga and Vilnius). Thirdly, the Commission has ordered a baseline study on Exploitation of PSI – Benchmarking of the EU Framework Conditions. The aim of this study is to assess the impact of the Directive on the framework conditions for PSI re-use for the review of the Directive (foreseen for 2008). The study will be finalised in April 2006. Finally, the Commission undertakes stimulation and communication actions (e.g. the Commission’s PSI website contains the transposition status of each Member State, as well as examples of good practices and links to national portals), networking across Europe and co-funding PSI show-case projects through the eContent programme.

In the field of justice, freedom and security , and especially with regard to free movement of people and actions of prevention and control, the Commission services held a meeting with Member States' representatives on 27 June 2005 on the state of play of transposition of Directive 2004/38[31] which will replace as from 30 April 2006 the existing acquis on free movement and residence. Such meetings will continue in order to prevent future infringement proceedings and ensure correct application of the Directive.

In the field of judicial co-operation in civil matters priority is given to the publishing of all legal information notified by Member States in the Official Journal of the EU, as well as to conformity checks of national legislation with Community law.

In the field of personal data protection, the "structured dialogue" with the national authorities will continue with view to preventing infringement proceedings and ensuring correct application of the Directive 95/46.

DG Internal Market and Services has continued to promote dialogue and cooperation with the Member States in order to ensure the full and timely transposition of the directives for which it is responsible. Working sessions were organised with all the Member States, either on an informal ad hoc basis or within existing committees, to identify the problems they have encountered when preparing their transposition measures. Sessions of this type were held for the new directives on public procurement (2004/17/EC and 2004/18/EC[32]), the enforcement of intellectual property rights (2004/48/EC[33]) and supervision of institutions for occupational retirement provision (2003/41/EC[34]). DG Internal Market has also continued to organise package meetings devoted specifically to the transposition of directives. In 2005 such meetings were held with Belgium and the Czech Republic, the first of the ten new Member States to be visited. They allowed the best possible use to be made of the transposition periods laid down in the directives by anticipating and wherever possible taking action with the Member States to deal in advance with problems of transposition. In line with the 2002 Communication, DG Internal Market has also pursued its policy of making greater use of the complementary mechanisms to the infringement procedure, one of the most important of which is SOLVIT. In 2005 SOLVIT dealt with 469 cases (63% more than in 2004) and found a solution in 78% of them. These very positive results show how useful and effective this mechanism is.

In the field of health and consumer protection, in 2005 the Commission took the initiative of launching an examination of a number of directives, in particular those relating to blood products and general product safety.

Ensuring compliance with Community provisions on food safety remains one of the Commission’s priorities. To this end, the Food and Veterinary Office (FVO) conducts inspection visits in all the Member States to ensure that Community legislation is being properly implemented and that the Member States are organising official inspections in an efficient manner. The FVO makes recommendations to the competent authority of the country concerned asking it to rectify any irregularities found in the course of the inspections. It asks the competent authority to present it with an action plan showing how it intends to remedy these irregularities. By cooperating closely with the Member States the FVO is successfully achieving a high degree of food safety. If the Commission finds that insufficient progress is being made on implementing the action plan it initiates infringement procedures.

In a number of fields, particularly those dealing with plant protection products, blood products and tobacco products, informal working parties and pilot projects have been set up to discuss the application of the legislation concerned or to encourage administrative cooperation in order to reduce the workload of the national authorities involved.

In the field of prevention, too, the Commission continues to be active. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations requires Member States and Members of the European Free Trade Association who have signed the Agreement on the European Economic Area plus Switzerland to give each other and the Commission prior notification of all draft rules containing technical standards or rules in order to avoid raising new barriers to trade in the internal market. In this context, in 2005 the Commission examined 204 notifications relating to draft regulations affecting public health or consumer protection.

The examination of these draft texts in the above areas led the Commission to issue detailed comments (24 cases) and opinions (12 cases) calling for the notifications to be brought into line with Community law.

In the transport and energy sector , with a view to implementing its 2002 Communication on better monitoring of the application of Community law, the Commission endeavoured to improve its prevention of infringements by reminding Member States of the deadlines for transposing directives (2005 saw a marked improvement in transposition rates).

In the field of nuclear energy, the submission of draft texts on the basis of Article 33 of the Euratom Treaty has emerged as the instrument of choice, allowing appropriate recommendations or remarks to be made, depending on the circumstances, before the finalisation of the national procedure for the adoption of transposition measures, so that any instances of non-conformity can be identified even before the texts are adopted.

Cooperation with the Member States has been strengthened as a result of the exchange of information and best practice at meetings of committees and networks of experts in the fields of both transport and energy.Similarly, the systematic inclusion of an item on the transposition of directives and infringements in the briefings given to the Members of the Commission in preparation for high-level meetings with their opposite numbers in the Member States has helped to consolidate this cooperation.

Checks on the conformity with Community law of measures transposing directives have also been stepped up and have led to twice as many decisions to send letters of formal notice and reasoned opinions in 2005.

In addition, to improve compliance with Community law regular use has been made of the information contained in the reports on inspections carried out in the Member States into aviation security and maritime and nuclear safety.

Finally, information on monitoring the application of Community law has been made available to the public in the form of press releases on DG Transport and Energy’s Europa website.

In the fisheries sector , concerning the implementation of the actions laid down in the Communication, the following comments are relevant as regards the common fisheries policy and in relation to the points in the Communication listed below.

Improving cooperation between the Commission and the Member States in the field of prevention . The Directorate-General for Fisheries carries out regular analyses of the technical regulations in the fisheries sector in connection with the application of Directive 98/34/EC (notification of technical regulations in the context of the internal market).

Providing more information on Community law. To improve transparency concerning the way in which the Member States fulfil their obligations as regards the enforcement of Community regulations, they are requested to notify the Commission each year of the measures they have taken when infringements have been detected.

In this connection, on 30 May the Commission published a Communication to the Council and Parliament on reports from Member States on forms of behaviour which seriously infringed the rules of the Common Fisheries Policy in 2003[35].

In addition, for the purposes of information on the application of Community law by the Member States, the Commission regularly publishes a “scoreboard”[36] which sets out the situation in all the Member States. This scoreboard contains all information on compliance with Community regulations, especially as regards serious infringements and the prosecution of infringements (handling of cases by the Commission and judgments by the Court of Justice of the European Communities).

Effective use of the available instruments in accordance with the seriousness of the infringements and infringements that undermine the smooth functioning of the Community legal system . The Commission has been keeping a very close watch on the infringement proceedings relating to the failure to monitor the fisheries sector as a whole in some Member States (Spain, UK).

It has also brought a case against one Member State for failure to comply with a judgment by the Court of Justice following a referral for non-implementation of Community law (Article 228 of the EC Treaty). This case led to the sentencing of a Member State to pay a lump sum of EUR 20 million and a penalty payment of EUR 57 761 250[37].

Complaints and their importance for monitoring the application of Community law. A complaint lodged by the Regional Government of the Azores, alleging that Spain had infringed a Regulation on the conservation of resources[38] and calling for the adoption of preventive measures under Article 26 of Council Regulation (EC) No 2371/2002[39] and the initiation of the Article 226 EC procedure against Spain, was closed with no further action being taken.

In the field of taxation and the customs union, considering the unanimity requirement in Council, harmonisation of legislation in the area of direct taxation is not very developed and the main source of conflict remains infringements of the freedoms provided for in the Treaty. Although the legislation has already evolved towards a more harmonised system within the area of indirect taxation, the best instrument to provide a correct application of Community law remains mainly the use of an infringement procedure. The increasing case law of the ECJ, also triggered by an increasing number of requests for preliminary rulings by national tribunals, has given further guidance for an enhanced control of infringement cases and a large number of ex officio cases have been initiated.

Nevertheless Member States have shown some reluctance as regards the initiative of DG TAXUD to co-ordinate the follow-up of Court judgements. However, bilateral meetings with Member States are considered a useful tool in the litigation procedure.

As regards value added networks for problem solving, the SOLVIT system has proven useful to conclude conflicts arising from factual disputes whereas this system seems less efficient when it comes to bringing together different legal appreciations.

In the financial programming and budget sector , the principle of sound financial management is applied (as expressed in Article 73 of the Financial Regulation applicable to the general budget of the European Communities). This means in practice that infringements are evaluated under the aspects of their gravity and their impact on the budget and treated correspondingly. Legal action is only taken if preliminary correspondence and/or discussions with Member States in the Advisory Committee for Own Resources do not solve the controversy.

In the field of statistics , the White Paper on European Governance, published by the Commission in 2001, states that responsibility for applying Community law lies in the first instance with the Member States’ authorities and the national courts.

Statistical legislation is no different from other Community law. As soon as it enters into force it must be applied without exception by the Member States. Eurostat must ensure that it is complied with in a way that is unconditional, consistent and strict.

The availability of high quality statistics is not only an operational necessity, it is a legal obligation; Community statistics must be produced in accordance with the principles set out in Article 285 of the EC Treaty and in Regulation (EC) No 322/97[40] as well as in the various sectoral legislative acts. A coherent strategy for compliance with Community law on statistics must be introduced.

In this connection Eurostat has undertaken a comprehensive action to monitor the application of statistical legislation.

To this end, the first step is to check progress on the application of Community statistical legislation by the Member States from the operational point of view; this is followed by an evaluation stage after which decisions are taken on the political and legal implications. The Eurostat management is informed of the situation twice a year and decides on the specific action to be taken in each case.

Overall, the application of Community legislation in the statistical field poses no major problems.

Eurostat is working to develop close cooperation with the Member States in order to prevent infringements and to speed up the process of bringing national texts and practices into line with Community law.

This specific action is based on a global and coherent strategy which rests on these two principles:

1. a realistic legislative policy : Eurostat exercises the Commission’s right of initiative with moderation. New legislative measures are discussed with national experts at all levels and are accompanied by analyses of their effects and consequences.

2. Systematic monitoring of conformity : Eurostat endeavours to identify, upstream and in time, potential sources of error and practices which could influence quality. The DG is in permanent dialogue with data suppliers at operational level and establishes appropriate quality control instruments for each domain.

The working parties and committees will continue to raise Member States’ awareness and push the simple message that legislation which is adopted must be applied .

DG Trade places heavy emphasis on preventing infringements in accordance with the Commission Communication on better monitoring of the application of Community law. In this connection DG Trade makes full use of its participation in Council bodies dealing with trade, particularly the Article 133 Committee, to maintain an ongoing dialogue with the Member States and to ensure that the Community’s powers in trade matters are respected. If necessary, bilateral contacts are also used if there is a danger of unilateral action by a Member State on a trade matter.

These preventive measures can also sometimes be used to put an end to actions by Member States which could be seen as the beginnings of an infringement which could get worse if the Commission did not intervene. DG Trade therefore does its best to make effective use of the available instruments in accordance with the seriousness of the infringements.

As regards directives, DG Trade plays a limited role as it has responsibility for only two directives. However, problems of implementation remain for these two texts. DG Trade maintains regular contacts with the Member States concerned, as required by the Commission Communication, in order to help them in their efforts to transpose the directives.

DG Regional Policy has highlighted the following points in relation to the implementation of the Commission Communication.

On the question of improving cooperation between the Commission and the Member States in the field of prevention (point 2.1. of the Communication), the partnership between the Commission and the national authorities responsible for implementing structural assistance allows an exchange of views on any problems associated with the application of Community law.

In addition, in the case of major projects financed by the ERDF and individual Cohesion Fund projects the Commission has greater scope for intervening in a preventive capacity since it examines the various aspects of the project prior to adoption and can therefore identify the risks of infringement of Community law more easily than in the case of current ERDF operations.

Finally, it should be mentioned that in the context of the management of the Funds transparency plays a role, albeit indirectly, in preventing infringements of Community law. For this reason, DG REGIO encourages initiatives in this area.

Under the heading of providing more information on Community law (point 2.3. of the Communication), the public information provided by DG Regional Policy is concerned with the various aspects of the implementation of Community legislation relating to the Structural Funds and the Cohesion Fund. It does not provide information relating specifically to compliance with Community law.

As regards the effective use of the available instruments in accordance with the seriousness of the infringements (point 3.1. of the Communication), the infringements of Community law uncovered in connection with the Funds are serious, since they may have grave implications for the Community budget.

For reasons which are explained below (see paragraph beginning “Complaints and their importance…”) the number of infringements affecting the actual legislation relating to the Funds is small. However, when an infringement of Community law does occur, the “financial correction” procedure, i.e. the procedure which can lead to the suspension, reduction or termination of aid, is often a more appropriate measure than the initiation of an infringement procedure. Moreover, as the implementation of regional policy is based on the partnership principle, the provisions on financial correction require the Member States to take action themselves in the first instance to rectify any infringement, while at the same time notifying the Commission. This approach has two advantages, it not only allows the Member States to avoid losing Community aid but it creates a culture of respect for Community law within the national authorities.

Complaints and their importance for monitoring the application of Community law (point 3.2. of the Communication). There are very few complaints, and hence infringements, relating to the management of the Funds and this is due to the fact that the legislation is based on the principle of subsidiarity. The most common complaint is that the complainant’s proposal has not been chosen by the managing authority during the project selection process. However, provided that the selection is made in accordance with the programming documents the Commission is not competent to examine the complaint, since the selection has been carried out according to national law. It is unlikely that the Commission can take any action on such complaints within the framework of the Article 226 EC procedure.

This being said, the Commission has had to examine cases in which the full amount of the Community aid had not been received by the recipient because the national authorities had kept a percentage of it, and cases where the project chosen did not correspond to the programming documents.

On the other hand, a large number of complaints and infringements concern the compatibility of projects cofinanced by the Fund with Community legislation on the environment and public procurement. Such cases are examined in the light of the relevant provisions in force (i.e. the “public procurement” directives or the environment directives, depending on the case). However, as conformity with Community legislation is a condition of payment of assistance from the Funds, the Commission must take appropriate financial measures. Thus, an infringement of Community law on the environment, for example, which relates to a project cofinanced by the ERDF or the Cohesion Fund can lead to the suspension, reduction or termination of the aid, provided that there is a direct link between the infringement and the project.

Infringement proceedings arising from petitions presented to the European Parliament

In 2005 DG Enterprise and Industry handled 10 petitions, all of which related to the non-harmonised area. Eight of them concerned slot machines or importation/registration of second-hand cars.

In the area of the environment , petitions to the European Parliament and complaints continue to represent a valuable source of information for the Commission in detecting violations of Community law. This is of particular importance since the Commission does not have any "inspection" powers for verifying the practical implementation of EC law on the ground in situations in the area of the environment.

However, in many cases a citizen simultaneously lodges a complaint with the Commission and a petition with Parliament concerning the same grievance, so that the complaint and petition are handled simultaneously. The treatment of complaints and the parliamentary procedures relating to implementation results in a significant workload for DG Environment, involving communications to the European Parliament and correspondence with the national authorities and with complainants to obtain information, as well as assessment (from a legal and technical point of view) in order to decide whether to open an infringement proceeding or close the dossier.

At the end of 2005, the number of open petitions in the environment sector was 179[41]. Around one third of these petitions revealed a potential breach of community law in the nature, impact, water, waste and air sectors.

Facts brought to the attention of the Commission through both petitions and complaints allow it to verify compliance "on the ground". After examination of these facts and, in most cases, after checking with the authorities concerned, the Commission verifies whether the Member States have correctly applied EC Law. Sometimes, the Commission's intervention helps to resolve potential infringements before they occur. However, some of these complaints and petitions lead to the opening of an infringement proceeding.

This "preventive role", in terms of the Commission's handling of complaints and petitions, provides positive results and helps to ensure better implementation on the ground. However, in the field of the environment it is particularly important that the petitioners/complainants provide clear identification of potential breaches of community law, with supporting data, in order to make it easier to handle the dossiers.

Furthermore, the petitions relating to the environment cover a wide range of issues. Many of the petitions that relate to an ongoing infringement proceeding concern a specific project alleged to be in breach of the obligation under Community law to carry out an environmental impact assessment. A number of projects for building motorways and motorway slip roads in Europe have been handled through infringement proceedings resulting from petitions relating to the failure to carry out an assessment in accordance with Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. When petitions are presented, such projects are also examined by the Commission to ascertain their detrimental effects on special areas of conservation or sites of Community importance.

A major infrastructure project examined by the Commission in this connection is the “Campo de Calatrava” airport project, located in a rare volcanic area. Since 1998 the Commission has been monitoring the development of the project, the proposed site for which was originally in a bird protection area, in terms of its compliance with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and Directive 85/337/EEC referred to above.

At the same time, projects for high-voltage lines have also given rise to complaints and proceedings for infringement of Community law owing to insufficient environmental impact assessment. One of the projects still being studied by the Commission is the high-voltage line crossing the Verdon Gorges in France. The planned line would traverse sites of Community importance proposed for Natura 2000 and areas of Community importance for the conservation of birds. The petitioners raise issues concerning the compliance of the project with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and Directive 85/337/EEC. Similar issues were raised in petitions concerning the detrimental effects of projects to build windfarms. One of the issues frequently raised is the risks for the wild birds in protection areas near the windfarms.

Inadequate protection of wild birds is also the subject of petitions concerning hunting in Malta and Cyprus. In the area of protection of fauna, the protection of wolves has been the subject of two petitions. The situation in all the Member States is being monitored by the Commission, as is the situation of Caretta-caretta sea-turtles in the Gulf of Lagana, which was the subject of two petitions. A petition and a complaint concerning the primates used in research laboratories was also handled by the Commission in 2005.

As regards protection of water in the Community, a number of petitions raised issues concerning urban wastewater, groundwater, bathing water and non-compliance with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption. A case illustrating the problems in the area of urban wastewater, to which considerable attention has been devoted, is the petition concerning the discharge of untreated sewage into the Thames. Some of the petitions concerning the protection of groundwater related to illegal discharge of waste. All the petitions concerning this issue were in relation to a specific situation in a particular site - a type of problem difficult for the Commission to identify, since it lacks “inspection powers”.

Air pollution problems resulting either from a specific project such as construction of a motorway or from the lack of structural measures, were also referred to in some petitions.

Petitions concerning projects with detrimental effects on flora and fauna in Community protection area were also handled. However, a small number of the petitions and infringement proceedings relate to the failure of Member States to designate these protection areas. For example, the Natura 2000 network in Poland, which is alleged to be insufficient, was the subject of one of the first (and as yet rare) petitions giving rise to an infringement proceeding concerning the situation of this new Member State.

With regard to the information society and media , solely in the area of electronic communications the implementation of the Single European Emergency Number (112) was the subject of a petition to the European Parliament (Petition 688/2005), launched on behalf of the “European Emergency Number Association (EENA)” which had also submitted complaints to the Commission and the Ombudsman.

In 2005 DG Internal Market replied to over 100 requests from the European Parliament falling within its area of competence, a quarter of which concerned infringement proceures. Two areas were particularly significant. As regards recognition of diplomas, the petitions concerned delays in the transposition of directives by certain Member States as a result of which immigrants are not able to get their degrees recognised. As regards public procurement, a number of petitions were addressed to the European Parliament concerning urban development laws in the Valencia region in Spain (the petitions covered other areas apart from public procurement). These were the subject of a Commission report on the petitions, which was adopted by the European Parliament on 13 December 2005[42].

In 2005 DG Internal Market and Services (DG MARKT) sent around 130 letters to the European Parliament, was assigned 75 new petitions coming under its area of responsibility and sent replies responding to the specific current concerns of members of the public in areas of their daily lives. Around a quarter of the petitions concerned infringements.

Recognition of diplomas is the main concern, accounting for 30% of the replies provided by DG MARKT. The professions to which the highest number of petitions relate are health practitioners (doctors, nurses) and legal practitioners, in both of which areas there is a significant proportion of immigrants. Some of the replies concerned old petitions in relation to which there are still ongoing infringement proceedings. Requests from the public were very varied and often included a request for analysis and explanation of the decisions taken by the national authorities.

The areas associated with financial services, financial institutions and company law accounted for 25% of the replies sent by DG MARKT. The petitions concerned three areas: shareholders’ rights, the banking sector and the insurance sector. In numerous cases the Commission, after analysis, replied that the question raised did not fall within the province of Community law. In the insurance sector, a number of replies related to the “Lloyd’s” case; the Commission closed the related infringement proceeding when the UK authorities changed their regulations. Other requests concerned the Equitable Life Assurance Society and UK life assurance regulations. Replies were also sent to consumers concerning crossborder payments in euros. In most cases, the problems encountered by people in this area were not owing to poor application of existing Community law but rather to poor information or incorrect interpretation of their rights.

Services is the third area, accounting for around 20% of the replies sent. In 2005 several replies related to two areas: the installation of satellite dishes (regarding which the Commission referred petitioners to Court of Justice case law and the national courts) and the chimney sweeps’ monopoly in Germany, where an infringement proceeding is in progress.

Public procurement accounted for 15% of the petitions handled by DG MARKT. A number of these were addressed to the EP on the subject of the urban development laws in Valencia, Spain (the petitions covered other areas apart from public procurement). As regards public procurement, the Commission brought an infringement proceeding concerning problems relating to public supply contracts. These were the subject of a Commission report on the petitions, which was adopted by the European Parliament on 13 December 2005 (Fourtou report of 5 December 2005). It is not possible to summarise the other petitions handled by DG MARKT.

In the area of taxation and customs union , a number of complainants lodged petition procedures with the European Parliament at the same time as a complaint to the Commission. Given the different procedures involved and the different roles of the two institutions, the two types of case have been handled differently. The petitions concern the problems in different areas of EC customs laws encountered by members of the public when crossing the external borders of the Community or importing a car in a Community Member State. Within the area of indirect taxation, various aspects of car tax is a subject often broached, as are the problems encountered in the reimbursement of VAT. Petitions concerning direct taxation dealt with the differences in the taxation of of residents and non-residents as well as with double taxation.

In the area of regional policy, none of the petitions handled related to infringement proceedings in progress. However, in 2005 the Regional Policy DG had to deal with six petitions concerning management of Community funds, five of which also concerned compliance with environmental legislation.

Consultation with the Member States and Commission departments on “improving the application of Community law”

Following the adoption of its 2002 Communication on better monitoring of the application of Community law (COM(2002)725) and in the wake of EU enlargement, in 2005 the Secretariat General launched two questionnaires, one for Member States and one for the relevant Commission Directorates General. These questionnaires raised questions concerning current practice, asked for evaluations of existing methods and sought suggestions for improvements that could be made. The answers have been fed into an inter-service consultation within the Commission, which is examining a wide range of issues with a view to drawing conclusions in 2006.

THE SITUATION IN THE DIFFERENT SECTORS

Agriculture

In the area of agriculture, monitoring the application of Community law concentrates on two main objectives: removing barriers to the free movement of agricultural produce and ensuring that the more specific mechanisms of the agricultural regulations are applied effectively and correctly.

The trend towards removing the traditional barriers to free movement of agricultural produce was reinforced.

However, the Commission addressed a reasoned opinion to Italy concerning the non-conformity of the Italian law transposing Directive 2000/36/EC of the European Parliament and of the Council relating to cocoa and chocolate products intended for human consumption.

In the area of quality policy, the Commission referred to the Court of Justice a case concerning the refusal of the German authorities to extend the protection provided by Regulation (EC) No 1107/96[43] to the protected designation of origin (PDO) “Parmigiano Reggiano” to include its French translation “Parmesan”, despite the requirements of Article 13(2) of Council Regulation (EEC) No 2081/92[44], which states that names registered at Community level are protected against any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated. The German authorities take the view that “Parmesan” has become a generic name and that it is therefore acceptable to use it for products that do not meet the product specifications for “Parmigiano Reggiano”.

In the area of monitoring existing aid, the Commission filed an action against Luxembourg with the Court of Justice for failing to submit annual reports on all the existing State aid schemes in the agricultural sector, which it is required to do under Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (now Article 88 EC)[45], as implemented by point 23.2.4 of the “Community guidelines on State aid in the agricultural sector”.

As regards the application of Directive 98/34/CE[46], which requires the Member States and EFTA countries to give notification, prior to adoption, of all draft legislation containing technical standards or regulations that risk creating barriers to inter-Community trade in the area of agriculture, numerous draft legislation was notified to the Commission in connection with the application of this directive.

In 2005 154 draft legislative texts relating to the agricultural sector notified by the Member States and EFTA countries were examined with respect to Article 28 of the EC Treaty and secondary legislation.

Education, training, culture and multilingualism

DG Education, Training, Culture and Multilingualism (EAC) is aware of the difficulties that remain regarding the recognition of diplomas . However, there have been improvements in the situation with respect to previous years. Any action taken by the Commission in this field must be strictly within the limits of the powers granted to it by the Treaty, Article 149 of which states that the Community must fully respect the Member States’ responsibility for the content of teaching and the organisation of education systems, as well as their cultural and linguistic diversity. The Commission’s actions in the area of academic recognition are aimed at encouraging full recognition of studies carried out in another Member State. However, harmonising the recognition of academic qualifications through legislation is excluded, and instead the Commission aims to encourage policy cooperation and the approximation of systems and to provide all the necessary instruments to facilitate the recognition of diplomas and qualifications.

The academic recognition of diplomas falls within the province of the Member States. The national authorities have the right to make access to education subject to obtainment of recognition of qualifications. In particular, they can assess whether the training received by the holder of a diploma corresponds to that required under national legislation. However, under Article 12 EC they must avoid any direct or indirect discrimination on the grounds of nationality.

DG EAC dealt with cases relating to the cost and duration of procedures for recognition of academic qualifications.

With regard to the administrative fees charged for academic recognition of diplomas, DG EAC considers that students can be asked to contribute to the costs of handling their applications. However, the contribution required must not be disproportionate with respect to the actual expenses incurred by the national authorities in examining the student’s qualifications. Charging excessively high fees for recognition of qualifications obtained in other Member States can create barriers to the free movement of students between countries and to their access to education. This makes it difficult or even impossible to exercise the rights to free movement guaranteed by the Treaty.

DG EAC launched a proceeding against a Member State in which the fees charged by a university for recognition of university diplomas obtained in another Member State are much higher than the actual costs of examining the diplomas. The Member States cannot evade Community law on the grounds of the autonomy of universities.

An infringement proceeding brought against a Member State by DG EAC for delays in the procedure of academic recognition of diplomas contributed to the adoption of a new national law on the restructuring of the competent national authority.

With regard to the conditions for access to education , Community law as interpreted by the Court of Justice guarantees equal treatment of national students and Community students as regards access to education (Articles 12, 159 and 150 of ECT). Under these Articles, Community students are entitled to be treated in exactly the same way as nationals of the host Member State as regards the conditions of access to higher education. In 1998 DG EAC brought an infringement proceeding against Austria concerning access by Community citizens to Austrian university education, which was referred to the Court in 2004. The Austrian legislation in question stipulated that students who have obtained their secondary school certificate in a Member State other than Austria and who wish to pursue their higher or university studies in a particular branch of the Austrian education system had not only to produce their diplomas but also prove that they fulfilled the conditions for access to higher or university education in the State in which they obtained their diploma (e.g. passing an entrance examination or obtaining a sufficient level for inclusion in the numerus clausus).

Consequently, the national legislation treated students differently, which was detrimental to those who had obtained their seconday school certificates in another Member State. The Court found against Austria and declared that “by not adopting the necessary measures to ensure that the holders of secondary education diplomas obtained in other Member States can have access to higher and university education organised by it under the same conditions as the holders of secondary education diplomas obtained in Austria, the Republic of Austria has failed to fulfil its obligations under Articles 12, 149 and 150 EC”. Austria has adopted certain measures in order to comply with the Court judgment, which are being analysed by the Commission. DG EAC is monitoring this case to ensure that the principle of equal treatment is applied.

DG EAC contacted the authorities of a Member State after receiving several complaints relating to failure to respect the principle of equal treatment with respect to registration fees for nationals of new Member States registered at the universities of the Member State in question prior to accession.

DG EAC continues to receive numerous letters from members of the public regarding students’ entitlement to maintenance grants, loans, etc. following the Bidar judgment (C209/03) in which the Court declared that “assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host Member State to cover their maintenance costs falls within the scope of application of the Treaty for the purposes of the prohibition of discrimination laid down in the first paragraph of Article 12 EC”. As a result of this judgment, maintenance grants and loans are now considered to fall within the scope of the Treaty, and this gives rise to many questions concerning the conditions for awarding such grants and loans to Community nationals.

Employment, social affairs and equal opportunities

In the area of the free movement of workers, the Commission has to tackle problems of incorrect application of certain provisions of the EC Treaty and the applicable regulations brought to its attention by complaints from individual members of the public, written questions and petitions. However, in the other areas (working conditions, health and safety at the workplace, non-discrimination under Article 13 EC and equal treatment for women and men), the main problems giving rise to infringement proceedings are non-conformity and failure to notify transposition measures.

Free movement of persons

In the field of free movement of persons, problems remain owing to flawed application of the relevant provisions of the Treaty (Articles 39 and 42 EC) and Regulations (EEC) Nos 1408/71 and 1612/68[47]. A large number of proceedings already initiated were continued. One example related to the difficulty of obtaining recognition in the public service in several Member States of work experience acquired in another Member State. The cases against Belgium, France and Italy still continue despite the fact that progress has been made in achieving conformity with Community law. However, the action against Austria has been closed.

Following the judgment by the Court of Justice[48] concerning a family benefit during a career break ( allocation d’interruption de carrière ), payment of which is conditional upon the beneficiary residing in Belgium, Article 228 proceedings were brought against Belgium. A proceeding was also brought against Belgium concerning a similar residence condition which needs to be fulfilled in order to qualify for pre-retirement benefit, although progress has been made in bringing national law into line with Community legislation after Belgium was sent a reasoned opinion.

Proceedings continued against Denmark and Finland under Article 228 EC concerning the obligation of an employee to register (and therefore pay registration tax on his vehicle), in the Member State in which he is resident, a vehicle made available to him by his employer established in another Member State, following the Court judgment[49] which found that such a system constituted an unjustified restriction on the free movement of workers under Article 39 EC.

Furthermore, following the decision to apply once again to the Court of Justice under Article 228 EC, the proceeding against Italy for failure to notify national measures taken in order to comply with the Court’s ruling[50] against it for non-recognition by certain Italian universities of the acquired rights of former foreign-language assistants ( 'Lettori' ), is still pending[51]. Since this judgment has not yet been fully and properly enforced by Italy, the Commission has asked the Court to impose a penalty payment of €309.750 for each day of delay.

The proceedings against the Netherlands and Finland concerning the possibility of taking into account pensions paid by another Member State when calculating sickness and maternity insurance contributions in cases where this insurance risk is their responsibility, and the compatibility of their national legislation in this field with Regulation No 1408/71, are still pending, following the decision to apply to the Court of Justice[52].

Equal treatment of men and women

With regard to infringement proceedings for non-notification , a reasoned opinion was sent to the Czech Republic for failure to notify the national measures transposing Directive 86/378[53] and amending Directive 96/97.

Following the judgment of the Court of Justice[54], Article 228 proceedings for non-conformity were brought against Luxembourg for incorrect transposition of Directive 96/34/CE on parental leave, concerning the restriction of the right to parental leave to parents of children born after 31 December 1998 (or in respect of whom adoption proceedings were initiated after that date) and the substitution of maternity leave for parental leave without the possibility of deferring the portion of the parental leave which the parent was unable to take. The proceeding against Austria for incorrect transposition of the same Directive (96/34) is still running after it was sent a reasoned opinion.

As regards Directive 76/207/EEC, the proceeding against Austria concerning the general prohibition on women working in high-pressure environments and atmospheres and in underground mines in contravention of Articles 2 and 3 of this Directive was closed after Austria took the necessary national measures following a Court ruling[55]. The proceeding against Germany[56] concerning the compatibility with Directive 76/207/EEC (in particular Articles 1 and 2 thereof) of national legislation that precludes part-time employees in the public sector from serving on staff committees, which was referred to the Court of Justice, was withdrawn after the necessary measures were taken. The Commission considers that in reality this has a greater effect on female workers and therefore constitutes indirect sex discrimination contrary to this Directive.

The case against Italy for imposing an absolute ban on night work in the manufacturing industry from the start of pregnancy until seven months after the birth, in contravention of Directive 76/207, and in particular Article 2(3) thereof, was closed for procedural reasons after an additional reasoned opinion had been sent.

Equal treatment – non-discrimination (Article 13 EC)

Following the judgment by the Court of Justice for failure to take and notify national transposition measures for EC Directive 2000/43/EC[57] (on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ), due for transposition by 19 July 2003, the Article 228 proceedings initiated against Germany[58], Austria[59] and Luxembourg[60] for failure to notify continued. However, the proceeding against Finland[61] was closed after the necessary transposition measures were taken.

With regard to Directive 2000/78/EC[62] (establishing a general framework for equal treatment in employment and occupation ), due for transposition by 2 December 2003, the Article 228 proceedings against Germany[63], Austria[64], and Luxembourg[65] for failure to notify continued following the ruling of the Court of Justice. The proceeding against Finland[66] was recently withdrawn after the necessary national transposition measures were taken.

Working conditions

As regards ( non) transposition of Directive 2001/86[67] ( involvement of employees - the statute for a European company) , due for transposition by 8 October 2004, the infringement proceedings for failure to notify against certain Member States continued. Reasoned opinions were sent to Greece, Spain, Ireland, Luxembourg and Slovenia.

With regard to Directive 2002/14[68] (informing and consulting employees) , due for transposition by 23 March 2005, the infringement proceedings for failure to notify against the Member States that had not reported their national transposition measures by the deadline also continued. Reasoned opinions were sent to Belgium, Estonia, Greece, Spain, Ireland, Italy, Luxembourg, Malta and Poland.

As regards the (non) transposition of Directive 1999/63[69] ( working time of seafarers ) due for transposition by 30 June 2002, the infringement proceeding against France[70] for failing to notify its national transposition measures by the deadline continued to run at the Court of Justice. However, those against Austria[71] and Italy[72] were withdrawn or discontinued following adoption of the necessary transposition measures.

Following the ruling of the Court of Justice for failure to transpose Directive 2000/34[73] (working time – sectors excluded), the Article 228 proceedings against France[74] and Luxembourg[75] continued.

With regard to Directive 2000/79 ( European agreement on the organisation of working time of mobile workers in civil aviation ), the infringement proceedings against certain Member States for failure to notify also continued. It was decided to refer the case against Greece[76] to the Court of Justice. Following the recent ruling by the Court of Justice[77], the proceeding against Ireland continued under Article 228 EC. However, the proceedings against Italy[78] and Sweden[79] were withdrawn after these countries adopted the necessary measures to transpose the Directive.

With regard to proceedings for non-conformity of the national measures transposing Directive 93/104/EC ( working time )[80], initiated following adoption of the report on progress in transposing this directive[81], the case against the UK[82] is still running before the Court of Justice. Following a Court ruling, the proceedings against Sweden and Belgium[83] were terminated after the adoption of the necessary national measures.

The action against Germany[84] for non-conformity of its transposition of the posting of workers Directive[85] continued under Article 228 EC following the judgment[86] of the Court of Justice on the interpretation of the concept of “minimum wage rates”. A reasoned opinion was sent to Luxembourg for incorrect transposition of the same Directive (96/71).

A reasoned opinion was sent to France for incorrect and insufficient transposition of Directive 80/987 ( insolvency ), in particular Article 8.

As regards Directive 98/59/EC[87] on collective redundancies , the infringement proceedings against Italy[88] and Portugal[89] for non-conformity were closed when the necessary measures were taken to comply with the Court of Justice judgment.

Health and safety at work

With regard to the protection of employees’ health and safety at work, the infringement proceedings against Member States which had failed to notify the national measures transposing Directives 1999/38/EC[90] and 2000/39/EC[91] continued. With regard to Directive 99/38, the proceeding against Austria under Article 228 EC continued following a ruling of the Court of Justice[92]. However, with regard to Directive 2000/39, the proceeding against Austria[93] was terminated following a Court sentence.

The proceeding against Austria under Article 228 EC for failure to report the national measures transposing Directive 1999/92/EC[94] continued following the Court of Justice sentence[95]. However, the case against Luxembourg[96] for failure to transpose the same directive was terminated following the adoption of the necessary national transposition measures.

As regards (non) transposition of Directive 2001/45/EC[97], due for transposition by 19 July 2004, infringement proceedings were brought against Member States that had failed to notify the national transposition measures within the time limit. A reasoned opinion was sent to Austria and Belgium (the case against Belgium was closed when it adopted the necessary national transposition measures) and the cases against Ireland[98] and the UK[99] were referred to the Court of Justice.

With regard to the non-conformity of the transposition of framework directive 89/391/EEC [100] and its individual directives, many proceedings already in progress continued. The proceeding against Sweden[101] was still before the Court of Justice and it was decided to refer the case against France[102] to the Court. Regarding transposition of the same directive by the UK, it was also decided to refer the case concerning application and the conformity of this directive with the “so far as is reasonably practicable” (SFAIRP) clause to the Court of Justice[103]. However, the case initiated against Ireland concerning the same problem was closed when the necessary national measures were taken. Following a Court ruling, proceedings continued under Article 228 against Luxembourg[104], Spain[105] and Austria[106]. However, the proceeding against the Netherlands[107] was terminated when the necessary national measures were adopted.

With regard to individual directives, following a Court of Justice ruling the proceeding against Italy[108] for incorrect transposition of Directive 89/655/EEC (work equipment) continued under Article 228EC and a reasoned opinion was sent under that Article. However, this case was closed recently after adoption of the necessary national measures. The proceeding against Austria for failure to transpose Directive 90/269/EEC[109] in all the Länder was also closed after adoption of the last transposition measures required.

Enterprise and industry

Chemicals

In the chemicals sector three directives fell due for transposal in 2005 (in one other case the due date was 31 December 2004). This represented a significant drop compared with 2004, when seven directives had to be transposed. At the same time a regulation was adopted on drug precursors and three regulations entered into force, confirming the tendency to replace directives with regulations.

There were considerably fewer cases of Member States failing to notify implementing measures. A total of 52 infringement proceedings were initiated against Member States in 2005 for failure to notify national measures by the prescribed deadline. However, the great majority of these proceedings and those commenced in previous years were terminated following the notification of national measures. In December 2005 only 11 infringement proceedings for failure to notify were still pending.

Article 228 proceedings continued against Luxembourg for its failure to comply with the judgment given by the Court of Justice on 2 October 2003 in Case C-89/03. The point at issue was a failure to transpose Directive 93/15/EEC on the placing on the market and supervision of explosives for civil uses. However, Luxembourg notified national implementing measures in December 2005 and, after having referred the matter to the Court, the Commission withdrew its case.

Four complaints had been received in 2004 concerning incorrect transposal of Directive 99/45/EC by Denmark and Sweden. To clear up this matter, the Commission departments responsible held meetings with the Danish authorities and examined the findings of a study designed to check whether transposal was correct in these two countries.

A complaint was also registered relating to incorrect transposal in the Netherlands of Directive 2001/90/EC. The case concerns wood treated with creosote and is complicated by the fact that the Netherlands enjoys derogations under Article 95(5) EC.

Infringement proceedings were commenced against Lithuania, Latvia and Luxembourg for incorrect application of Directive 2004/10/EC of the European Parliament and of the Council on good laboratory practice, in particular Article 3(2) thereof.

Pharmaceutical products

The Commission decided to bring actions before the Court of Justice against France and the Netherlands for failure to notify measures implementing Directive 2001/20/EC on the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use and Directive 2003/94/EC laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use. A few weeks after its decision, the Netherlands notified measures transposing the two Directives.

The Commission sent 20 letters of formal notice for failure to notify measures to implement Directive 2004/24/EC amending, as regards traditional herbal medicinal products, Directive 2001/83/EC.

As regards the legislative package forming part of the “review of pharmaceutical legislation”, the Commission sent 18 letters of formal notice for failure to notify measures to transpose Directive 2004/27/EC amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, and 21 letters of formal notice for failure to notify measures to transpose Directive 2004/28/EC amending Directive 2001/82/EC on the Community code relating to veterinary medicinal products.

Following the judgments handed down by the Court of Justice in cases brought against Germany for failure to notify measures transposing Directives 2000/37/EC (Case C-118/03) and 2001/38/EC (Case C-139/03) on pharmacovigilance, Germany notified national implementing measures for the above Directives in 2005 and the Commission was able to terminate the proceedings.

Discussions continued with a number of Member States regarding the application of Directives 2001/83/EC and 2001/82/EC.

In the clinical trials field, the Commission departments responsible set up a working group with the Member States ( Ad hoc group for the development of implementing guidelines for Directive 2001/20/EC) to facilitate application of Directive 2001/20/EC and its implementing Directives. This group met several times in 2005.

There are still problems in a number of Member States with the application of Directive 89/105/EEC relating to the transparency of measures regulating the prices of medicinal products and their inclusion in the scope of national health insurance systems. The Commission feels that the Member States in question do not comply with the Directive’s procedural requirements regarding decisions on the price of and reimbursement for medicines. In 2005, discussions on the application of the Directive were begun with Austria, Malta, Poland and the Czech Republic. Talks also continued with Belgium, Spain, Greece and Italy. Finally, complaints against a number of countries are currently being investigated.

Cosmetics

In 2005 the Commission adopted four Directives designed to adapt the Cosmetics Directive to technical progress. Two Directives fell due for transposal during the year (the deadlines for the other two are in 2006).

Infringement proceedings were commenced in 2005 against Member States for failure to notify national measures implementing these Directives: eight relating to Directive 2005/42/EC and seven relating to Directive 2005/9/EC.

Equipment (gas appliances, measuring equipment, pressure vessels)

In the gas appliances sector, one case concerning incorrect application of Directive 90/396/ECE was terminated, as there was no evidence of any infringement on the part of the French authorities. Complaints against Germany required detailed investigation to clarify the situation regarding the conditions on the entry into service of such appliances. A complaint against Spain for incorrect application of the Directive was terminated after the Spanish authorities took steps to comply with the Directive.

In the pressure vessels sector, a complaint is currently being investigated concerning barriers to the entry into service in Germany of equipment that meets the requirements of Directive 97/23/EC as regards the fixing of intervals for periodic inspections. A complaint was also lodged against Greece concerning obstacles to the entry into service of equipment that meets the Directive’s requirements. The Commission departments responsible continued to examine two complaints relating to incorrect application of the Directive in Italy as regards inspections on entry into service.

In the measuring equipment sector, Commission departments continued their dialogue with the UK authorities to ensure the implementation of Directive 80/181/EEC on units of measurement. Progress has been achieved in the use of the metric system in administration, on public websites and in the distribution sector. Dialogue is continuing with a view to finding an appropriate solution for setting a date for the use of the metric system in the few remaining sectors, in particular road signs, in accordance with Article 1(b) of the Directive.

Mechanical and electromechanical equipment

The Commission sent reasoned opinions to Greece, Ireland and Portugal, the only Member States not to have notified measures transposing Directive 2002/88/EC amending Directive 97/68/EC on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery.

Directive 2004/26/EC amending Directive 97/68/EC on emissions from internal combustion engines to be installed in non-road mobile machinery also fell due for transposal. Nine reasoned opinions were sent to Member States for failure to notify implementing measures by the deadline. The main reason for failure to transpose the Directive appears to be delays in internal implementation procedures.

In connection with Directive 98/37/EC on machinery, a reasoned opinion was sent to France because of the obstacles to the free movement of industrial dry-cleaning machinery. Discussions are continuing with the French authorities with a view to amendment of the disputed national provisions.

As regards Directive 95/16/EC on lifts, a case of incorrect application concerning the minimum height of landing doors on lifts in residential buildings was terminated after the Dutch authorities took steps to comply with the Directive.

In the proceedings brought against Germany for incorrect application of Directive 89/686/EEC on personal protective equipment, following the judgment given by the Court of Justice in Case C-103/01, a letter of formal notice was sent under Article 228 of the Treaty. This ultimately led to the revision of the German legislation, and the proceedings have been terminated accordingly. Another case of incorrect application of this Directive – relating to the technical characteristics of jackets and vests with high-visibility retro-reflective strips worn by drivers of vehicles parked on the carriageway – was closed following measures taken by Italy to comply with the Directive.

Medical devices

In 2005 the Commission terminated three cases against Cyprus for failure to notify measures implementing Directive 84/539/EEC on electro-medical equipment used in human or veterinary medicine, Directive 2003/12/EC on the reclassification of breast implants in the framework of Directive 93/42/EEC concerning medical devices and Directive 2003/32/EC introducing detailed specifications as regards the requirements laid down in Council Directive 93/42/EEC with respect to medical devices utilising tissues of animal origin.

In three other cases infringement proceedings for failure to notify implementing measures have been withdrawn (this is equivalent to termination): two cases against Italy concerning Directives 2003/12/EC and 2003/32/EC and one against France concerning Directive 2003/32/EC.

Three cases for failure to notify national measures are still in motion: two against Latvia concerning Directives 2003/12/EC and 2003/32/EC and one against Estonia concerning Directive 84/539/EEC.

Motor vehicles, tractors and motorcycles

In 2005 the number of infringement cases was kept down by effective monitoring of transposal by the Member States. Six directives - on the type-approval of motor vehicles, agricultural and forestry tractors and motorcycles - fell due for transposal in 2005. The Commission commenced 22 proceedings for failure to notify measures implementing these Directives. In 14 of these cases the proceedings were soon terminated following notification by Member States of their implementing measures.

However, some Member States did not notify any transposal measures despite proceedings being opened against them. The Commission therefore decided to send a reasoned opinion to Belgium concerning Directive 2003/97/EC and brought a case before the Court against Slovakia in relation to Directives 2004/78/EC and 2004/11/EC.

The proceedings already opened against Austria (Directive 2004/86/EC) and Slovakia (Directive 2004/86/EC) were terminated during the year. The Commission also ended two cases relating to tyres (brand restrictions) against Austria and Germany, following an expert study on tyres.

Nevertheless, the complexity of the legislation and the constant evolution of technology still give rise to problems of interpretation regarding the type-approval of vehicles, which calls for close and constant cooperation between the Commission and the type-approval authorities.

Construction products

Infringement proceedings were brought against seven Member States (Spain, Germany, United Kingdom, Austria, Sweden, Netherlands and France) concerning their implementation of Council Directive 89/106/EC, as some provisions of their national legislation are not in line with the Directive.

Since most of these proceedings are based on complaints, in two cases (France and Germany) the Commission first sent a warning letter to the relevant authorities in the Member State in order to be sure of the facts relating to the complaint before sending a letter of formal notice.

In June and December 2005, the Commission published in the Official Journal a consolidated list of measures, updated with the titles and references of the standards harmonised under the Directive. *

Recreational craft

At the end of 2005, the Commission terminated the infringement proceedings brought against 12 Member States which had failed to notify before the end of 2004 their transposal measures for Directive 2003/44/EC amending Directive 94/25/EC on recreational craft.

Cableway installations

At 31 December 2005, all 25 Member States had transposed Directive 2000/9 on cableway installations designed to carry persons. No infringements were detected during 2005.

Payment delays

During 2005 the European Commission received complaints leading to the opening of infringement proceedings for non-conformity (Greece) and incorrect application (Italy) in respect of this Directive. Proceedings against Italy for non-conformity are pending before the Court of Justice. The Maltese authorities communicated an amendment to their national implementing measures, leading to the closure of infringement proceedings.

Cultural goods

In connection with the return of cultural objects unlawfully removed from the territory of a Member State (Directive 93/7/EC, amended by Directives 96/100/EC and 2001/38 EC[110]), the Commission continued proceedings against Poland for partial failure to notify national implementing measures. However, the Commission also terminated proceedings opened in 2004 against Malta and Slovakia for failure to notify national measures.

In December 2005 the Commission adopted its second report to the Council, Parliament and the Economic and Social Committee on the application of the Directive, covering the period between 1999 and 2003[111].

During the year two parliamentary questions were put to the Commission on the application of the Directive[112].

Preventive rules provided for by Directive 98/34/EC

Directive 98/34/EC (as amended by Directive 98/48/EC) lays down an information procedure enabling the Member States and the Commission to exercise prior checks on draft technical rules relating to products and draft rules relating to information society services. In 2005 the Commission was notified of 800 draft standards (31 of them relating to information society services), including 61 from EFTA countries. The new Member States played an active part in this process, notifying 196 draft texts (around one third of notifications received from the Member States as a whole).

The number of notifications increased significantly compared with 2004 (up by 30%), notably because of enlargement. The Commission issued 73 detailed opinions and 247 observations in response to drafts notified in 2005, whereas the Member States issued 45 detailed opinions and 219 observations. The Commission also “blocked” adoption of 4 notified texts for 12 months because the projects concerned a field covered by a proposal for harmonisation at Community level.[113]

Apart from potential infringements of the EC Treaty, and in particular Article 28 thereof, many of the detailed opinions sent by the Commission, as in previous years, warned the addressees that their drafts were liable to infringe Community directives on the free movement of goods or of information society services. In 2005 the Commission also received eight notifications from Member States relating to national coexistence measures in the field of GMOs; in four cases the Commission reacted by sending a detailed opinion.

Where it detects an infringement of Directive 98/34/EC, either through the adoption of legislation containing technical rules that have not been notified as required by the Directive or through failure to comply with the status quo periods provided for by it, the Commission engages in dialogue with the Member State in question to have the situation remedied (for example through notification of a fresh draft repealing the disputed text and its subsequent adoption) or commences infringement proceedings. At the end of 2005, seven infringement proceedings were under scrutiny, while four proceedings were terminated after the Member States concerned remedied their failure to fulfil their obligations under Directive 98/34/EC.

The organisation of briefing sessions on the operation of the notification procedure, which had proved most valuable in previous years, was continued in 2005 in Portugal, Spain and France. These seminars are an opportunity to elucidate the application of the procedure for notifying technical rules relating to information society services. At a conference in Brussels in 2005, 200 participants, representing the Member States, the Commission and the industry, reviewed the situation regarding Directive 98/34/EC and discussed the industry’s expectations for the future development of the Directive.

Finally, the Commission departments continued their work on extending Directive 98/34/EC to services other than information society services, in particular by finalising a draft impact assessment.

Defective products

In 2005 two infringement proceedings for non-conformity were still pending:

- 1998/2245 against France. The French authorities notified the amending legislation, which brought it partly into line with the Court’s judgment in Case C-52/00. The Commission pursued the issues still outstanding, after calculating a reduced fine.

- 2003/2063 against Denmark.

Weapons

All the new Member States have notified texts designed to transpose Directive 91/477 (firearms). No infringement proceedings were opened against them or any other Member State.

Non-harmonised areas (Articles 28 to 30 of the EC Treaty)

Contrary to the trend noted in 2004, there was an increase in the number of complaints registered in 2005, mainly because of the accession of new Member States. This shows that EU citizens and businesses are making full use of the possibilities for action offered by European law. The Commission pursued its work on complaints and infringement proceedings in various fields ranging from the registration of second-hand vehicles to parallel imports of medicines and plant protection products. By the end of the year, 130 cases were under scrutiny, while more than 60 cases were terminated in the course of 2005. The most frequent complaint was that the Member State of destination was failing to apply the principle of the mutual recognition of products lawfully manufactured or marketed in other Member States.

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