EN Official Journal of the European Union C 204/9

Opinion of the European Economic and Social Committee on the Communication from the Commission A Europe of results — Applying Community law

COM(2007) 502 final

(2008/C 204/02)

On 5 September 2007 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Communication from the Commission: A Europe of results — Applying Community law

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 27 February 2008. The rapporteur was Mr Retureau.

At its 443rd plenary session, held on 12-13 March 2008 (meeting of 12 March), the European Economic and Social Committee adopted the following opinion by 59 votes, nem. con. with two abstentions.

1. Introduction

1.1 In its Communication, the Commission states that out of over 9 000 legislative measures, nearly 2 000 are directives each requiring between 40 and 300 transposition measures. Noting the large number of Europeans who could query their rights under these laws, the Commission considers that in pursuing the objective of Better Regulation, high priority must be given to the application of law and to identifying why difficulties in implementation and enforcement persist. It therefore proposes to improve the present method of handling issues related to application and enforcement of Community law.

1.2 The Commission identifies four possible avenues for improving application: a) prevention: better impact assessments, risk assessments included in Commission proposals, inclusion of a correlation table in each proposal; training of national authorities in Community law; b) effective, appropriate reaction: improvement of information exchange with businesses and the public and also with national authorities, with the introduction of ‘package meetings’ across the board playing a particularly important role here; c) better working methods: designation of a central contact point in each Member State, responsible for liaising between the relevant national authority and the Commission; more efficient management of the infringement process, setting priorities in particular; d) strengthening dialogue and transparency: more effective interinstitutional dialogue; publishing of general information on the effectiveness of the ‘new approach’.

1.3 The EESC endorses the Commission's intention to enhance the relevant instruments so as to ensure better application of Community law by the Member States. In this connection it would like to make the following comments:

2. Identifying the problem

2.1 Most failures to apply or implement Community law properly arise from failure to transpose directives. Transposition can be defined as the process by which a Member State to which a directive is addressed takes all the necessary measures to incorporate it properly into its national legal system using appropriate regulatory instruments.

2.2 To transpose a directive, Member States have to do two things: — firstly, incorporate all the legal content of the directive into national law; — secondly, repeal or amend all existing national rules which are not in line with the directive.

2.3 The same applies to the inclusion of the Framework Decisions referred to in Article 34 of the Treaty on European Union (TEU), which, like the directives referred to in Article 249 of the Treaty establishing the European Community (TEC), are‘binding upon the Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods’.

2.4 The transposition of Framework Decisions is equally likely to give rise to difficulties. However, in contrast to the procedure for failure to take the necessary measures laid down in Articles 226 and 228 TEC, the Treaty on European Union does not provide for the Commission taking any such supervisory action in the event of failure to transpose or incorrect transposition. This does not, of course, make Member States' obligation to transpose the Framework Decisions any less binding.

2.5 It should be noted that the Member States are still finding it difficult to adapt their processes for drafting transposition provisions, which, although this may not be apparent, give rise to complex legal constraints and at times upset domestic law-making traditions.

3. Outline of the transposition requirement and the difficulties encountered by the Member States

3.1 The Member States have sole authority to decide in what form directives should be transposed and to decide, under the supervision of the national court, the ordinary courts applying Community law, how best to give the directive effect in national law. The Commission's obligation as guardian of the Treaties to ensure proper implementation of the law and the smooth functioning of the single market by bringing action against Member States, when appropriate, using the range of measures available to it (reasoned opinion, appeal to the ECJ, penalty payment), should be stressed here. Lastly, delayed, incomplete or incorrect transposition does not prevent affected citizens from invoking the directive over national law, by dint of the principle of primacy of Community law.

3.2 Thus, proper transposition requires the adoption of binding national rules, which must be published in an official publication (1). The Court can thus censure mere references to Community law masquerading as transposition (2).

3.3 It may be that the general principles of constitutional or administrative law make transposition effected by adopting specific laws or regulations superfluous, but these general principles must still guarantee the full application of the directive.

3.4 Directives must therefore be transposed as faithfully as possible. Directives harmonising national laws must be transposed as literally as possible in order to ensure respect for the need for uniform interpretation and application of Community law (3).

3.5 This seems simple in theory, yet in practice there are instances where Community law concepts whose content is clear and precise (4) have no equivalent in national legal terminology, or where this kind of concept does not include referral to Member States' law to determine its meaning and scope (5).

3.6 There are also instances where the directive contains an article to the effect that the national provisions transposing the directive must make reference to the directive or be accompanied by a reference of this kind when they are published. Ignorance of this clause, known as the ‘interconnection clause’, is penalised by the Court, which refuses to provide for an exception where Member States plead that their existing domestic law already complies with the directive (6).

3.7 The difficulty of transposing directives correctly also derives from the varying degree of latitude permitted in their implementation. There are, in fact, two main types of provisions laid down by directives: — non-explicit provisions, which merely set forth general goals, leaving Member States fairly extensive leeway in choosing national transposition measures; — prescriptive/explicit provisions, which require Member States' transposition measures to comply with the provisions of the directive. These include definitions; prescriptive/explicit provisions, which place specific obligations on the Member States; annexes to directives, which may include lists or tables detailing substances, objects or products; and specimen forms which apply throughout the European Union.

3.8 In the case of non-explicit provisions, evaluation of the full, faithful and effective nature of the transposition does not relate to the actual drafting of the national measures but their content, which must enable the directive's objectives to be achieved.

3.9 Where prescriptive/explicit provisions are concerned, the Commission and the Court focus more on the drafting of national measures, which should comply fully with the directive's provisions.

3.10 Certain Member States encounter serious difficulties when it comes to drafting rules that transpose prescriptive/explicit provisions. The basic problem is that any new provisions drafted must, to ensure legal clarity, be gone over with a fine tooth-comb to remove any redundant or — even worse — contradictory statements. The right balance therefore has to be struck between blind copying and excessively free revising of the provisions in question, and that can be a problem area (7).

4. Transposition methods used by the Member States

4.1 The choice of techniques for drafting transposition measures varies according to whether the provisions to be transposed are non-explicit or prescriptive/explicit. — It seems to be becoming increasingly common for prescriptive/explicit provisions to be transposed by simply transcribing them, as the transposition of this type of provisions leaves Member States no margin of manoeuvre; the Commission and the Court thus focus their attention more on ensuring that the wording of the transposition measures corresponds with, or even is identical to, the prescriptive provisions of the directive. However, the Court has never gone as far as to rule that the obligation to transpose faithfully necessitates direct transcription. — The Commission tends to favour this transcription procedure, while taking particular care to ensure that the definitions included in the directive are faithfully reproduced in the transposition text, so as to prevent any semantic or conceptual disparities which would hinder the uniform application of Community law in the Member States or its effectiveness. — Checking the transposition of non-explicit provisions is, however, more problematic. Here we are talking about cases where, in accordance with Article 249 of the EC Treaty, a directive merely sets out general objectives and leaves it to the Member States to determine the ways and means of attaining them. Evaluation of whether the directive has been transposed fully and faithfully must then focus on the actual content of the national measures, and not on the drafting of them. The Court thus advocates that checking of transposition measures must be done pragmatically on a case by case basis, in the light of the objectives of the directive and the sector concerned; and this may throw the Commission off course (8).

4.2 Lastly, the Member States can also use a reference to transpose technical provisions such as annexes to directives which contain lists of items or specimen forms or which are frequently amended.

4.3 The Netherlands, Slovakia, Austria, Finland and Estonia use a reference to transpose the technical annexes to directives which are often amended by directives adopted under the comitology procedure.

4.4 It is clear that transposition is not as simple an operation as it might seem because of the way that the latitude permitted by directives with regard to their implementation varies. This variation leads to differences between national transposition procedures.

4.5 The United Kingdom uses a fast-track adoption procedure for transposition laws, known as ‘negative declaration’, whereby the government places before Parliament the transposition text decided on in consultation between government departments but it is not subject to a debate, except where a request is made to the contrary.

4.6 Belgium uses an urgency procedure which applies to all laws where a transposition law needs to be adopted quickly because the transposition deadline is about to expire.

4.7 On the other hand, this kind of fast-track legislative procedure for the adoption of transposition laws does not exist in some Member States, such as Germany, Austria and Finland.

4.8 In France, the directives to be transposed are not treated differently (i.e. using a simplified legislative process or a regulatory process) according to the problems they pose.

5. Solutions to be recommended for more effective transposition of directives

— Most importantly, decide how to draw up Community legislation which is easier to transpose and provides the conceptual consistency and degree of continuity essential for business activity and private life;

— take the decision to use a regulatory transposition instrument earlier on, establishing from the outset discussions on the draft directive and an accurate, constantly-updated correlation table, following the example of the United Kingdom;

— speed up the transposition process once the directive has been published in the Official Journal of the European Union, by entrusting domestic coordination to a national contact point which will have a database established for this purpose, as recommended by the Commission in its Communication. The contact point could even be equipped with an early warning system, which would be triggered a few months before the expiry of the transposition deadline. Belgium, Hungary and the Netherlands already have this kind of arrangement;

— encourage transposition by copying where specific, explicit provisions or definitions are concerned;

— allow transposition by means of a specific reference to prescriptive/explicit provisions in the directive such as lists; tables detailing the products, substances or items covered by the directive; specimen forms or certificates annexed to the directive. The reference must be specific as the Court of Justice considers that a national-law text which makes a general reference to a directive does not provide proper transposition (9). The Netherlands, Slovakia, Austria, Finland and Estonia are champions of this method of transposing the technical annexes to directives;

— gear national transposition procedures to the scope of the directive by using fast-track procedures, without neglecting the mandatory domestic consultations prescribed for the adoption of regulatory texts.

6. Conclusion

6.1 Improving the application of Community law, as called for by the Commission, is a sensible goal whose achievement is for the most part the responsibility of the Member States, who are clearly faced with problems that are more complex than they might at first sight appear.

6.2 Member States should not use transposing directives as an excuse to revise parts of their national legislation which are not directly affected by the Community legislation in question (gold-plating), or to ‘downgrade’ domestic legal provisions, reducing people's or businesses' rights and blaming Brussels for these changes.

6.3 Member States should more systematically take the opportunity provided by primary legislation/the Treaties to use collective bargaining when transposing directives, particularly those on social and economic issues. According to the subject, civil society organisations should be consulted during the preparations for transposition (10), on the changes or additions to be made to domestic law on that occasion. Using collective bargaining and consultation procedures encourages and facilitates the subsequent implementation of Community law by appealing to civil society. Consulting civil society before adopting national transposition measures enables the national authorities to take a more informed decision by garnering the views of the social partners, experts and professionals from the sector concerned. It also performs a pedagogical function, as it enables these stakeholders to become more familiar with the details of the forthcoming reforms. Thus the United Kingdom, Denmark, Finland and Sweden, for example, consult their social partners and advisory bodies by sending them the transposition text together with a set of specific questions about it.

6.4 Greater account should be taken of the domestic constitutional arrangements of a number of Member States (federal states, regional devolution and other means of transferring sovereign powers to a sub-state entity). Transposition deadlines should sometimes be extended where Community provisions concern, in particular, powers delegated to local or regional authorities (regional policy, outermost regions and islands etc.).

6.5 National parliaments and regional parliaments or assemblies (such as those in Scotland, Belgium or the German Länder), are particularly involved, bearing particular responsibility, in transposition of Community law in fields in which they can assign powers or have consultative powers. The commissions or committees that they form to this effect should hold hearings of specialists and representatives of relevant sectors of civil society and have special authority to plan discussion of the proposals for transposition laws so as to avoid domestic law ‘emergencies’ pushing the schedules for discussing national transposition measures beyond the deadlines. However, ‘urgency’ measures (delegation of legislative powers to the executive) could be taken in respect of many drafts currently behind schedule which are not essentially sources of dispute between the political parties, in order to severely reduce the backlog of directives which have not been transposed within the deadlines.

6.6 Some of them have already put systems in place designed to speed up the procedures for adopting transposition measures. Others have developed techniques which should improve the quality of transposition; others have not yet taken the plunge and have yet to come into line. For example, ministries and parliaments could set up a transposition bureau to give guidance on transposition work. This is a chance to modernise public action rather than suffering constraints imposed by the Community institutions, first and foremost the Commission. In other words, this is an area where each country must shoulder its responsibilities in European integration and play its part to the full (11).

Brussels, 12 March 2008. The President of the European Economic and Social Committee Dimitris DIMITRIADIS

(1) French Council of State study: ‘Pour une meilleure insertion des normes communautaires dans le droit national’, adopted by the Council of State general assembly on 22 February 2007, Documentation française, Paris, 2007.

(2) ECJ, 20 March 1997, Commission of the European Communities v Federal Republic of Germany, C 96/95, ECR p.1653.

(3) Rapporteur: Mr Van Iersel, OJ C24 of 31.1.2006.

(4) See, for example, ECJ, 26 June 2003, Commission of the European Communities v French Republic, C 233/00, ECR p.I-6625.

(5) ECJ, 19 September 2000, Grand Duchy of Luxemburg v Berthe Linster, Aloyse Linster and Yvonne Linster, C 287/98, ECR p.I-6917.

(6) Established case law, ECJ, 23 May 1985, Commission of the European Communities v Federal Republic of Germany, 29/84, ECR p.1661, ECJ, 8 July 1987, Commission of the European Communities v Italian Republic, 262/85, ECR p.3073, ECJ, 10 May 2001, Commission of the European Communities v Kingdom of the Netherlands, C-144/99, ECR p.I-3541.

(7) Contribution by the French Council of State to the XIXth conference of the Association of the Council of States and Supreme Administrative Jurisdictions of the European Union, The Hague, 14-15 June 2004.

(8) ECJ, 15 June 2006, Commission v Sweden, C 459/04: The Court rejected the action which the Commission had brought against Sweden for failing to fulfil its obligations under Article 7(8) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work. The Court ruled that the Directive should be deemed a Framework Directive which, as such, did not demand total harmonisation of Member States' regulations on the working environment.

(9) ECJ, 20 March 1997, Commission of the European Communities v Federal Republic of Germany, C 96/95, ECR p.1653, mentioned above.

(10) Rapporteur: Mr Retureau, OJ C 24 of 31.1.2006 and rapporteur: Mr Van Iersel, OJ C 24 of 31.1.2006).

(11) In essence, this is the conclusion of the French Council of State study: ‘Pour une meilleure insertion des normes communautaires dans le droit national’, mentioned above.