EN Official Journal of the European Union C 18/95

Opinion of the European Economic and Social Committee on the ‘25th Annual report from the Commission on monitoring the application of Community law (2007)’

COM(2008) 777 final

2011/C 18/17

Rapporteur: Mr LECHNER

On 18 November 2008 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

25th Annual report from the Commission on monitoring the application of Community law (2007)

COM(2008) 777 final.

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 2 March 2010.

At its 462nd plenary session, held on 28 and 29 April 2010 (meeting of 29 April 2010), the European Economic and Social Committee adopted the following opinion by 120 votes to four.

1. Conclusions and recommendations

1.1 Some Member States still encounter difficulties when it comes to drafting rules that transpose the provisions of Directives. When it comes to implementation, Directives permit various degrees of latitude, from non-explicit provisions leaving Member States fairly extensive leeway in choosing national transposition measures, to explicit or prescriptive provisions. The right balance has to be found here between blind copying and excessive leeway.

1.2 The Committee endorses the Commission’s main objectives, namely:

— to deal with the problem of extensive late transposition of directives;

— to step up preventive measures, including the continuing need to develop the analysis of implementation and compliance issues when preparing Impact Assessments;

— to improve information and informal problem-solving in the service of citizens and business; and

— to prioritise the most important cases and work closely with Member States to accelerate correction of infringements.

1.3 The Committee welcomes the Commission’s assertions that priority will continue to be given to problems which have a wide-ranging impact on fundamental rights and free movement. It also welcomes the priority given to infringements where citizens are extensively or repeatedly exposed to direct harm or serious detriment to their quality of life.

1.4 The Committee would suggest a more pro-active approach, e.g.:

— drawing up ‘easier to transpose’ Community legislation;

— establishing an accurate and constantly updated correlation table from the outset;

— allowing transposition by means of a specific reference to prescriptive or explicit provisions in a Directive.

1.5 However, the Committee would also draw attention to those areas in which planning, drafting and transposition of legislation should be based on the pro-active law approach; in this connection the EESC notes that provisions and rules are not always the only, and certainly not always the best, way of achieving the desired objectives.

1.6 The Committee considers that the Commission should improve the management of infringement procedures, especially on how the Commission implements this accelerated process to follow up on late transposition.

1.7 The Committee considers that other problem-solving mechanisms - such as SOLVIT, IMI, the information exchange system in the context of posting workers and EU PILOT - are good opportunities to reduce the Commission’s workload when dealing with infringement procedures.

1.8 The Committee considers that it is necessary to improve the way in which civil society and the public are provided with information on the various complaint mechanisms available via the ‘Europa Portal’, in respecting the exception based on the protection of the public interest, as defined by the jurisprudence.

1.8.1 The Committee also suggests further increasing the information available on the relevant website and publishing Commission decisions relating to infringements, from registration of the complaint to completion of the infringement procedure.

1.9 EU-wide collective redress mechanisms are also to be examined, with a view to completing the initiatives currently underway in the areas of consumer and competition law to strengthen self-regulating mechanisms in the Member States.

1.10 The Committee suggests that the Commission regularly request an opinion from it on the Annual Report, so as to register the views of organised civil society and thus strengthen the application of legislation in the EU.

2. Report from the Commission (1)

2.1 As guardian of the Treaty, the Commission has the authority and responsibility to ensure respect for the law of the European Union, verifying that Member States respect Treaty rules and secondary legislation. The rules of the Treaty – 10 000 regulations and over 1 700 directives in force for 27 Member States - make up a substantial body of law. Issues and challenges in the application of law are inevitably many and varied. Certain areas face particular implementation challenges.

2.2 In September 2007 the Commission adopted a Communication on ‘A Europe of results – applying Community law’ (2) stating that it would ‘develop the focus of its Annual Report on strategic issues, evaluation of the current state of the law in different sectors, priorities and programming of future work’ to ‘assist strategic inter-institutional dialogue on the extent to which Community law achieves its objectives, the problems encountered and possible solutions’.

2.3 The report highlights challenges in the application of law, indicating three main priority areas of action: 1) prevention, 2) information and problem-solving for citizens, and 3) prioritisation in handling complaints and infringements. It further stresses the importance of a strong partnership between the Commission and Member States, working in expert groups to manage the application of the legal instruments and co-operating pro-actively to resolve problems.

2.4 Sector analysis: complaints and infringement procedures are numerous in the spheres of the environment, the internal market, taxation and customs, energy, transport, employment, social affairs and equal opportunities, health and consumer issues, and fundamental rights, freedoms and security. In some other sectors as agriculture, education and culture there are hardly delays in transposition of Directives (3).

2.4.1 In 2007, late transposition of Directives led to new infringement procedures in the various spheres as follows:

— the internal market and services: 206 procedures;

— Community provisions on the free movement of goods: 227 procedures;

— health and consumer protection: over 330 procedures;

— Community environmental law: 125 procedures.

2.5 The following specific examples illustrate the varying degree of transposition problems and their consequences for citizens.

Public procurement:

— 344 public procurement infringement files were handled in 2007. Of these, 142 cases (4 %) were closed; only 12 (about 3.5 %) had to be referred to the Court. Around 200 of these 344 files were infringement cases, 25 % of which were priority cases.

— During 2007 infringement procedures were opened against 7 of the 10 Member States who had not notified their national transposition measures before the deadline in relation to the transposition of the public procurement Directives (4). By the end of that year only three Member States – Belgium, Luxembourg and Portugal – had not yet notified their transposition measures. Now Luxembourg is the only Member State remaining under an infringement procedure (5).

Consumer affairs:

— The deadline for transposition of the Directive concerning unfair business-to-consumer commercial practices in the internal market (6) expired on 12 June 2007. Twenty-two Member States had failed to notify transposition measures to the Commission by that date, which led to the Commission sending out formal letters of notice to them. Six Member States then notified transposition measures before the end of 2007.

— During 2007, the Commission also verified transposition by the ten countries that joined the EU in May 2004 of Directive 93/13/EC on unfair consumer contracts. Varying degrees of transposition problems were identified in nine of those Member States and pre-infringement letters sent.

— A number of potential transposition proems were identified with the Directive on distance marketing of consumer financial services (7), but no complaints were registered in 2007 as a result of public dissatisfaction with its implementation.

2.6 Further details on the situation in the different sectors of Community law, as well as the lists and statistics concerning all infringement cases are contained in Commission Staff Working Documents annexed to the report (8).

3. General comments

3.1 The report and attached working documents, which are very difficult to understand in parts, show that some Member States still encounter difficulties when it comes to drafting rules that transpose the provisions of Directives. Although transposition may appear to be simple in theory, in practice there are instances where Community law concepts, which seem clear and precise, have no equivalent in national legal terminology (9), or where the Community law concept does not include referral to Member States’ law to determine its meaning and scope (10).

3.2 Moreover, when it comes to implementation, Directives permit various degrees of latitude, from non-explicit provisions leaving Member States fairly extensive leeway in choosing national transposition measures, to explicit or prescriptive provisions such as definitions, lists or tables detailing substances, objects, or products which require that Member States enact ‘simple transposition measures’ to comply with the provisions of the Directive.

3.3 Any new provisions drafted must ensure legal certainty: in other words, any redundant or contradictory statements must be removed from national law. The right balance has therefore to be found between blind copying and excessive leeway.

3.4 However, transposition is not only a matter of drafting Community law legal concepts into national law; it is also matter of concrete process. In this respect, once a Directive has been published in the Official Journal of the European Union, Member States should speed up their transposition processes by entrusting national implementation authorities - which could and should have an updated database established for this purpose - to cooperate with the authorities of other Member States via a network where they could exchange experiences and explain their difficulties in transposing particular provisions.

3.5 The Commission highlights the need to:

— deal with the problem of extensive late transposition of directives;

— step up preventive measures, including the continuing need to develop the analysis of implementation and compliance issues when preparing Impact Assessments;

— improve information and informal problem-solving in the service of citizens and business; and

— prioritise the most important cases and working closely with Member States to accelerate correction of infringements.

3.5.1 Concerning the latter point, the Committee considers that prioritisation of infringement procedures is a good idea. It also notes that it involves political and not merely technical decisions without external scrutiny, control or transparency. In this respect, civil society should be duly consulted by the Commission over decisions to prioritise the treatment of infringements. However, the Committee is satisfied that some of its previous recommendations, in particular regarding consultation of civil society organisations, the social partners, experts and professionals during the preparation of the transposition process (11) have been taken into account.

3.5.2 The Committee also welcomes the Commission’s assertions that priority will continue to be given to problems which have a wide-ranging impact on fundamental rights and free movement. It also welcomes the priority given to infringements where citizens are extensively or repeatedly exposed to direct harm or serious detriment to their quality of life.

3.6 The Committee would like to take this opportunity to suggest a more pro-active approach. In order to facilitate correct transposition of EC Law, the Committee suggests that several rules should be respected, including:

— drawing up ‘easier to transpose’ Community legislation, by providing conceptual consistency and a degree of continuity, which are essential for legal certainty; in 2007 national courts in the Member States sought a preliminary ruling from the European Court of Justice under Article 234 of the EC Treaty in 265 cases (12);

— establishing an accurate and constantly updated correlation table with national law from the outset of discussions on draft directives. (This is already a reality in many Member States. It should generalised to all of them);

— allowing transposition by means of a specific reference to prescriptive or explicit provisions in a Directive, such as tables annexed to the Directive.

3.7 However, the Committee would also draw attention to those areas in which planning, drafting and transposition of legislation should be based on the pro-active law approach (13); in this connection the EESC notes that provisions and rules are not always the only, and certainly not always the best, way of achieving the desired objectives. Sometimes the best way for the regulator to support valid objectives is precisely by not regulating, and if appropriate encouraging self-regulation and co-regulation. Where this is the case, the key principles of subsidiarity, proportionality, precaution and sustainability have greater importance and scope.

4. Specific comments

4.1 In 2007, 1 196 new infringements concerned a failure to notify, or late notification of national measures relating to the transposition of Community Directives. 12 months is the general maximum reference period of the Commission (14), which may not be exceeded for referral to the Court of Justice to decide or close a case, even if this may require close examination. The Committee considers that more rapid action should be required for cases of this type that do not demand special analysis or evaluation. The Commission should improve the management of infringement procedures, especially on how the Commission implements this accelerated process to follow up on late transposition.

4.1.1 However, it should be noted that national implementation measures have already been notified in the case of 99.4 % of total Directives adopted (as at September 2009) (15).

4.2 The Committee supports the idea of creating networks and information exchanges between national implementation authorities, as long as this system does not create new administrative burdens or add more opacity to the current situation.

4.3 The Committee considers that other problem-solving mechanisms such as SOLVIT, the Internal Market Information system (IMI (16), the information exchange system recommended by the Commission in the context of posting workers (17) and EU PILOT are good opportunities to reduce the Commission’s workload when dealing with infringement procedures, provided that the Commission continues to carry out systematic and exhaustive risk-based conformity evaluations of transposed texts.

4.4 The Committee agrees that there is a need for ‘continued pro-active’ cooperation between Member States and the Commission, as highlighted in the Commission’s report. This cooperation would be still more efficient if it came at an earlier stage and took the form of training courses for national officials on the implementation of EC Law. The Commission could help in identifying training needs.

4.5 The Committee considers that it is necessary to improve the way in which civil society and the public are provided with information on the various complaint mechanisms available on the ‘Europa Portal’. It is currently a challenge for an ‘average citizen’ to understand under which circumstances s/he should submit a complaint to the Commission, or whether it would be preferable to use other means, such as seeking national redress mechanisms or consulting the national Ombudsman (18).

4.6 The Committee welcomes the Commission’s new working method (EU PILOT), under which requests for information and complaints received by the Commission will be directly forwarded to the Member State concerned when an issue requires rapid clarification of the factual or legal position in the Member State.

4.7 EU-wide collective redress mechanisms should be examined, with a view to completing the initiatives currently in the pipeline in the areas of consumer and competition law (19) to strengthen self-regulating mechanisms in the Member States.

4.8 The Commission has set up a website, ‘Application of Community law’ (20), which already provides important information on the transposition of Community law, in respecting the exception of the protection of the public interest as defined by the jurisprudence.

4.8.1 The protection of the public interest justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with infringement proceedings and relating to inspections, investigations and court proceedings (21). It is important, nevertheless, to point out that the Commission cannot confine itself to invoking the possible opening of an infringement procedure as justification, under the heading of protecting the public interest, for refusing access to the entirety of the documents identified in a request made by a citizen (22).

4.9 In addition, since an efficient policy relies on an efficient information and communication system, the Committee suggests that the available information be posted on relevant Internet sites, publishing the infringement decisions adopted by the Commission from the registration of the complaint to the end of the infringement procedure, subject always to the protection of the public interest as defined in case-law.

4.10 This is the first time that, at the Committee’s initiative, the Commission has consulted the Committee on its Annual Report on Monitoring the Application of Community Law. The Committee suggests that the Commission regularly request an opinion from it on the Annual Report in future, so as to register the views of organised civil society and thus strengthen the application of legislation in the EU.

Brussels, 29 April 2010. The President of the European Economic and Social Committee Mario SEPI

(1) COM(2008) 777 final; SEC(2008) 2855; points 1 and 2.

(2) COM(2007) 502 final, 5.9.2007. See also the related EESC opinion, OJ C 204, 9.8.2008, p. 9.

(3) http://ec.europa.eu/community_law/docs/docs_directives/mne_sector_na_20091124_en.pdf.

(4) OJ L 134, 30.4.2004, p. 1 and OJ L 134, 30.4.2004, p. 114.

(5) COM(2008) 777 final, SEC(2008) 2854, 18.11.2009, p. 206.

(6) OJ L 149, 11.06.2005, p. 22.

(7) OJ L 271, 09.10.2002., p. 16.

(8) COM(2008) 777 final; SEC(2008) 2854.

(9) ECJ26 June 2003, Commission v French Republic, C 233/00 ECR I, p. 6625.

(10) ECJ19 September 2000, Grand Duchy of Luxembourg v Berthe Linster and Yvonne Linster, C 28798, ECR I p. 6917.

(11) OJ C 24 of 31.1.2006, p. 39; OJ C 24 of 31.1.2006, p. 52.

(12) COM(2008) 777 final, SEC(2008) 2854, Annex VI, p. 1.

(13) OJ C 175, 28.7.2009, p. 26.

(14) Meanwhile the Commission has improved Impact Assessment evaluation of implementation requirements in the revised Commission Guidelines on Impact Assessment adopted in 2009.

(http://ec.europa.eu/governance/better_regulation/impact_en.htm#_guidelines) and others and plan to adopt a policy statement on the application of Article 260 TFEU for the imposition of financial sanctions by the ECJ.

(15) See http://ec.europa.eu/community_law/directives/directives_communication_en.htm.

(16) See EESC 1694/2009, 5.11.2009 on Delivering the benefits of the single market through enhanced administrative cooperation.

(17) See OJ C 85, 4.4.2008, p. 1.

(18) See http://ec.europa.eu/community_law/your_rights/your_rights_en.htm.

(19) OJ C 128, 18.5.2010, p. 97.

(20) See http://ec.europa.eu/community_law/index_en.htm.

(21) Judgment of the Court of First Instance of 5 March 1997. WWF UK (World Wide Fund for Nature) v Commission of the European Communities. Case T-105/95 points 63 and following.

(22) Judgment of the Court of First Instance of 11 December 2001 In Case T-191/99, David Petrie et.al. vs. Commission.