EN Official Journal of the European Union CE 51/66

Wednesday 14 September 2011

Annual report on monitoring the application of EU law (2009)

P7_TA(2011)0377

European Parliament resolution of 14 September 2011 on the twenty-seventh annual report on monitoring the application of European Union law (2009) (2011/2027(INI))

2013/C 51 E/08

The European Parliament,

— having regard to the Interinstitutional Agreement on better law-making (1),

— having regard to the twenty-seventh annual report on monitoring the application of European Union law (2009) (COM(2010)0538),

— having regard to Commission staff working documents (SEC(2010)1143) and (SEC(2010)1144),

— having regard to the report from the Commission entitled ‘EU Pilot Evaluation Report’ (COM(2010)0070),

— having regard to the Commission Communication on the implementation of Article 260(3) TFEU (SEC(2010)1371),

— having regard to the Commission Communication of 5 September 2007 entitled ‘A Europe of results – applying Community law’ (COM(2007)0502),

— having regard to the Commission Communication of 20 March 2002 on relations with the complainant in respect of infringements of Community law (COM(2002)0141),

— having regard to its resolution of 25 November 2010 on the twenty-sixth annual report on monitoring the application of Community law (2008) (2),

— having regard to the Commission’s reply to its resolution of 25 November 2010 on the twenty-sixth annual report on monitoring the application of Community law (2008),

— having regard to Rule 119(1) of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on the Internal Market and Consumer Protection and the Committee on Petitions (A7-0249/2011),

A. whereas the Lisbon Treaty entered into force on 1 December 2009 and introduced a number of new legal bases intended to facilitate the implementation, application and enforcement of EU law,

B. whereas according to Article 298 TFEU, in carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration,

1. Takes the view that Article 17 TEU defines the fundamental role of the Commission as that of ‘guardian of the Treaties’; in this context, the Commission’s power and duty to bring infringement proceedings against a Member State that has failed to fulfil an obligation under the Treaties, including obligations in relation to fundamental rights of citizens, is a cornerstone of the EU’s legal order and as such is consistent with the concept of a Union based on the rule of law;

2. Emphasises the fundamental importance of the rule of law as a condition not only for the legitimacy of any form of governance and administration and for genuine democracy in which specific actions comply with the general norms laid down, but also for the predictability and objective soundness of decisions, and as a guarantee that citizens can fully and effectively enjoy their rights as provided by law;

3. Stresses that the twenty-seventh annual report on monitoring the application of EU law shows that, despite a fall in the number of infringement cases opened by the Commission, it was still dealing with around 2 900 complaints and infringement files at the end of 2009, and that Member States were still behind schedule with their transposition of directives in more than half of the cases, a situation which is far from satisfactory and for which the Member States’ authorities bear most of the responsibility;

4. Notes that the infringement procedure consists of two phases: the administrative (investigation) stage and the judicial stage before the Court of Justice; considers that the role of citizens as complainants is vital in the administrative phase when it comes to ensuring compliance with Union law on the ground, which is again acknowledged by the Commission in its above-mentioned Communication of 20 March 2002; considers it therefore of paramount importance to guarantee transparency, fairness and reliability of the procedures that empower citizens to detect infringements of Union law and to bring these to the Commission’s attention;

5. Notes that through the EU Pilot Project the Commission is aiming to increase ‘commitment, cooperation and partnership between the Commission and Member States‘ (3) and is considering, in close cooperation with national administrations, how to deal with the application of EU law; considers that this initiative partially responds to the new need for cooperation between all institutions of the European Union following the adoption of the Lisbon Treaty, but urges the Commission to guarantee that citizens are always included when dealing with compliance with EU law;

6. Notes that on the one hand citizens are portrayed as having an essential role in ensuring compliance with EU law on the ground (4), whilst on the other – in EU Pilot – they risk being further excluded from any subsequent procedure; considers that this outcome should be avoided by treating the Pilot as a ‘mediation’-type alternative in which citizens are fully involved and integrated as the initiating complainant; takes the view that this would better reflect the Treaty aims that ‘decisions are taken as openly as possible and as closely as possible to the citizen’ (Article 1 TEU), that ‘the Union institutions … shall conduct their work as openly as possible’ (Article 15 TFEU) and that ‘[I]n all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions’ (Article 9 TEU);

7. Notes the number of petitions for which no solution can be provided under EU secondary legislation or directly applicable treaty norms, but which nevertheless indicate violations of the principles required for entering the Union that correspond to the values laid down in Article 2 TEU, with Article 7 TEU regulating the procedures for upholding these values;

8. Notes that the discretionary power conferred by the Treaties upon the Commission in dealing with the infringement process must respect the rule of law, the requirement of transparency and openness and the principle of proportionality and must never endanger the very first aim of that power, which is to guarantee timely and correct application of Union law; reiterates that ‘absolute discretion coupled with an absolute lack of transparency is fundamentally contrary to the rule of law’ (5);

9. Asks the Commission to bring more transparency into ongoing infringement procedures and to inform EU citizens as soon as possible, and in an appropriate manner, of the action taken on their requests; encourages the Commission to propose a benchmark for the Member States’ compliance with Court of Justice rulings;

10. Notes that in order to make the EU Pilot operational, the Commission has created a confidential on-line database for communication between Commission services and Member State authorities; reiterates the lack of transparency vis-à-vis complainants in the EU Pilot and Parliament’s request to be given access to the database where all complaints are collected in order to enable it to perform its role of scrutiny of the Commission’s role as guardian of the Treaties;

11. Welcomes the Commission’s commitments, but considers that further efforts are needed by all concerned – Member States, the Commission, the Council and Parliament – in order to make the Union and its internal market a tangible reality for citizens, their organisations and enterprises;

12. Takes the view that the ‘EU Pilot’ initiative might make a contribution to solving problems faced by individuals and businesses in the single market and calls on the Commission to extend the initiative’s coverage from 24 to 27 Member States;

13. Welcomes the Commission’s emphasis on the need to improve the prevention of infringements by using all existing tools and ensuring that sufficient means are available;

14. Emphasises that preserving consistency in the application of EU law by the Member States and ensuring the role of the Court of Justice in this respect would require that the Commission carefully investigate and, if necessary, initiate infringement proceedings when a petition or complaint is directed against a refusal by a national court to request a preliminary ruling when it would have been obliged to do so under the treaties and the acquis;

15. Welcomes the shorter timeframes needed for investigating alleged infringements through use of the pilot project method, but considers that clarification and further information is needed from the Commission in order for Parliament to be able to judge the success of this method from the point of view of actual compliance by Member States;

16. Notes that in the Commission’s reply to its resolution of 25 November 2010, reference is made only to Court cases (6), which would confirm the need for the Commission to ensure the confidentiality of documents which relate to infringement proceedings and pre-infringement proceeding investigations; reminds the Commission that the Court of Justice has never denied in those cases that an overriding public interest might well justify access to documents; also notes that the Ombudsman has showed a positive approach to the release of documents related to infringement procedures (7);

17. Considers that greater access to information on infringement files could be provided without jeopardising the purpose of the investigation and that an overriding public interest might well justify access to these files, particularly in cases where human health and irreversible damage to the environment may be at stake; would welcome also the facilitation of access to already publicly available information on infringement files;

18. Calls therefore once again on the Commission to propose a procedural law in the form of a regulation under the new legal basis of Article 298 TFEU, setting out the various aspects of the infringement procedure, including notifications, binding time-limits, the right to be heard, the obligation to state reasons and the right for every person to have access to her/ his file, in order to reinforce citizens’ rights and guarantee transparency;

19. Notes that many petitions refer to conflicts of interest among decision-makers and strongly supports the adoption of a regulation on EU administrative procedures which should also include general principles on infringement proceedings;

20. Notes in this context the Commission’s reply to Parliament’s request for a procedural law in which it expresses doubts about the possibility of adopting any future regulation based on Article 298 TFEU because of the discretionary power conferred by the Treaties upon the Commission ‘to organise the way in which it manages infringement proceedings and related work to ensure the correct application of EU law’; is convinced that such a procedural law would not in any way limit the discretional power of the Commission but would only guarantee that when exercising its power the Commission would respect the principles for ‘an open, efficient and independent European administration’ as referred to in Article 298 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union;

21. Welcomes the decision of the Committee on Legal Affairs to include Petition 1028/2009 calling for binding norms on infringement proceedings in the work of the Working Group it has set up on Article 298 TFEU;

22. Reminds the Commission that the above-mentioned Communication of 20 March 2002 concerning the relations with the complainant in respect of infringements of EU law contains procedural steps that the Commission finds acceptable in respect of regulating its discretion and that there should therefore be no obstacle to basing a regulation on this instrument; notes the Commission’s intention to review that communication; urges the Commission not to make use of soft law when dealing with the infringement procedure but to propose a regulation in order for Parliament to be fully involved as co-legislator in such an essential element of the EU’s legal order;

23. Notes in particular that the Commission plans a review of its general policy on the registration of complaints and relations with complainants in the light of experience of the new methods now being tested; is worried about the Commission’s renouncement of the use of the infringement procedure as an essential tool to ensure that Member States apply Union law in a timely and correct way; underlines that this is a duty imposed upon the Commission by the Treaties which cannot be unilaterally renounced; urges the Commission to prove, by means of consistent data, the declared success of those ‘new methods’ with detailed pre- and post-EU Pilot data and to include in the future regulation principles and conditions for the registration of complaints and any other complainant’s rights;

24. Welcomes the new element contained in Article 260 TFEU which allows the Commission to ask the Court of Justice to impose financial sanctions on a Member State for late transposition of a directive when bringing a case before the Court under Article 258 TFEU; calls on the Commission to provide information on the use of this new discretionary power, with a view to guaranteeing greater transparency;

25. Considers it of the utmost importance that the Commission should use this and all other possible means to guarantee that Member States transpose Union legislation in a timely and correct way, especially with reference to environmental cases;

26. Stresses that timely transposition of EU directives is essential for the smooth functioning of the single market for the benefit of consumers and enterprises in the EU; welcomes the progress made towards this goal, but remains concerned about the high number of infringement cases opened for late transposition of directives;

27. Endorses the initiatives taken by Member States to optimise the transposition of single market directives, including establishing appropriate incentives for the relevant departments and setting up warning systems when the transposition deadline is approaching;

28. Calls on the Commission to continue promoting ‘best practices’ in the transposition of single market legislation, building on its recommendation of 29 June 2009 on measures to improve the functioning of the single market (8);

29. Notes that the national courts play a vital role in applying EU law and fully supports the EU’s efforts to enhance and coordinate judicial training for national judges, legal professionals, officials and civil servants in the national administrations;

30. Stresses that, whilst the Commission is correct in pointing out that it is primarily the duty of Member States’ judicial systems to act on infringements of EU law, citizens often face considerable difficulties stemming from national court procedures, which can prove expensive or too lengthy; considers, therefore, that the guidelines laid down in the Stockholm Programme should be followed;

31. Welcomes the Commission’s greater use of fact-finding missions to investigate infringements in situ and considers that coordination and synergies should be sought with the missions carried out by the EP, notably the Committee on Petitions, whilst respecting the independence of each institution.

32. Notes that the possibility for citizens, enterprises or civil society interests to bring their own proceedings before Member States’ administrative review bodies, courts or tribunals concerning the application of EU law is separate, independent and not in contradiction with the conduct of infringement proceedings by the Commission;

33. Regrets that too many infringement procedures take a long time to be closed or brought before the Court of Justice; calls on the Member States and the Commission to intensify their efforts to resolve infringement procedures and asks the Commission to prioritise infringements in different sectors in a more systematic and transparent manner;

34. Is concerned about the high number of infringements in the fields of recognition of professional qualifications, services and public procurement; is of the opinion that further clarification of the legal framework in these fields would be useful in order to help national authorities with the implementation process;

35. Welcomes the creation of a public database of legislation and case-law in the field of unfair commercial practices; takes the view that similar initiatives should be considered in other areas;

36. Recalls the importance of SOLVIT in helping EU consumers and businesses enjoy their rights in the single market; welcomes the progress made in improving the functioning of SOLVIT and calls on the Commission and the Member States to reinforce it further;

37. Considers it important to inform EU citizens more fully, and in a practical manner, about their rights in the single market; supports the further development of the Your Europe portal;

38. Points out that judicial proceedings are costly and time-consuming for both individuals and businesses and represent a significant burden on EU and national courts, which are already overloaded; underlines the importance of preventive measures and proper alternative dispute resolution mechanisms in order to reduce this burden;

39. Points out that the petition mechanism continues to be used by citizens, civil society organisations and enterprises mainly to report on, and complain about, non-compliance with EU law by Member State authorities on different levels, the main issues invoked being related to the environment and the internal market, with freedom of movement, fundamental rights and citizenship featuring prominently;

40. Considers that many petitions refer to the Charter of Fundamental Rights, even when the Charter is not applicable to Member States’ acts, whilst others invoke the values on which the EU is founded; is concerned that citizens feel misled about the actual scope of application of the Charter, and considers it highly important to clarify the scope of applicability and enforcement of the Charter of Fundamental Rights; stresses that the subsidiarity principle, which is a basic pillar of the European Union, needs to be properly explained to ensure that citizens are not confused about the Charter’s applicability;

41. Welcomes the specific section on petitions contained in the 27th annual report, as requested by Parliament, in which the Commission gives a breakdown of new petitions received and states that ‘even if most petitions do not concern infringements they provide Parliament and Commission with useful information on citizens’ concerns’;

42. Demands that the Council, in accordance with its own statement in point 34 of the Interinstitutional Agreement on better law-making, require Member States to draw up and publish tables illustrating the correlation between directives and national transposition measures; stresses that such tables are essential in order for the Commission to be able to monitor implementation measures in all Member States effectively;

43. Instructs its President to forward this resolution to the Council, the Commission, the Court of Justice, the European Ombudsman and the parliaments of the Member States.

(1) OJ C 321, 31.12.2003, p. 1.

(2) Texts adopted, P7_TA(2010)0437.

(3) EU Pilot Evaluation Report, p. 2.

(4) See the Commission’s above-mentioned communication of 20 March 2002, p. 5: ‘the Commission has regularly acknowledged the vital role played by the complainant in detecting infringements of Community law’.

(5) European Parliament resolution of 25 November 2010 on the 26th Annual Report on Monitoring the application of European Union law (2008) (Texts adopted, P7_TA(2010)0437).

(6) Judgments of the General Court in Case T-105/95 WWF UK v Commission [1997] ECR II-313 and in Case T-191/99 Petrie and Others v Commission [2001] II-3677 and judgment of the Court of Justice in 21 September 2010 in Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Kingdom of Sweden v Association de la presse internationale and European Commission, Association de la presse internationale ASBL v European Commission and European Commission v Association de la presse internationale, not yet reported in the ECR.

(7) See http://www.ombudsman.europa.eu/cases/decision.faces/en/10096/html.bookmark.

(8) OJ L 176, 7.7.2009, p. 17.