WRITTEN QUESTION E-0629/96 by Mihail Papayannakis (GUE/NGL) to the Commission (13 March 1996)

Subject: Harmonization of penalties

In early May 1995, the Commissioner responsible for the internal market, Mr Monti, stated that the lack of uniformity in the penalties imposed by the Member States for breaches of Community law was a major problem which had a severe impact on the smooth operation of the internal market.

Given that the Commission has undertaken (a) to include specific provisions on uniform penalties for breaches of legislation in any future directive submitted for the Council's approval, and (b) to propose that the Member States should carry out a study to identify the gaps and discrepancies between their national legislations in order to prevent breaches of Community rules and jointly propose practical solutions, will the Commission say what progress has been made with that study and when it is expected to be completed and whether any practical measures have been taken hitherto to avoid disruption to an area as sensitive as the internal market?

Answer given by Mr Monti on behalf of the Commission (6 May 1996)

It should first be pointed out that, contrary to the impression that might be given by the wording of the Honourable Member's question, the Commission does not take the view that the lack of harmonized penalties is in itself 'a major problem which had a severe impact on the smooth operation of the internal market'.

In its communication of 3 May 1995, ((COM(95)162 final. )) the Commission recalled that referral to national systems of penalties is regarded as the norm under Community law, whereas defining common penalties remains the exception. It went on to say that 'there is no apparent reason to believe that, where a Member State determines the penalties relating to the Community or national rules applicable, those penalties will not be effective, proportionate and dissuasive, since it is in that country's interest as a State based on the rule of law - in terms of the confidence both of its own nationals and of the other Member States of the Union - to ensure that the rules applicable on its territory are effectively enforced. Nevertheless, given the - in some cases - significant differences noted by the Commission in the course of assessing the transposal and application of the common rules, it is important to ensure that the national systems of penalties are sufficiently transparent for their effectiveness, proportionality and dissuasiveness to be confirmed'.

The Commission is not, therefore, advocating general, automatic harmonization of the penalties applicable in cases where the rules of the internal market are breached, but it will see to it that, from now on, the penalties form part of the measures that have to be expressly notified under Community law. It calls on the Member States to communicate to it, for the purposes of monitoring the transposal and application of Community law, any relevant information on their national systems of penalties and, where appropriate, will carry out studies in the sectors requiring further analysis.

As a general rule, therefore, it is only if sectoral problems arise in connection with the on-going exercise of monitoring the transposal and application of the single-market rules that the Commission envisages taking measures or making proposals for resolving such problems.

To date, two sectors - mentioned in the communication of 3 May 1995 - have been the subject of specific and particularly notable studies as regards penalties: customs legislation and public procurement.

In the customs field, the Customs Policy Committee, comprising high-level experts from Member States and the Commission, met on several occasions in 1994 and 1995 to examine from a comparative viewpoint the penalties applied by Member States in the event of infringements of Community customs legislation. On the basis of the initial findings of those deliberations, the Commission and the Member States decided to examine the scope for approximating the national provisions concerned. In view of the need to press ahead with the work in a methodical and in-depth manner, the Commission could reach initial operational conclusions towards the end of the year or in early 1997.

In the public procurement field, the Commission launched in June 1995 a comparative study of the means of redress available in Member States, its purpose being to ascertain the effect of existing rights of redress, their effectiveness and their equivalence as between Member States. The results of this study should enable the Commission and the Member States to identify more closely the nature and practicalities of the improvements to be envisaged in this field, notably in the light of the common provisions in force regarding appeal procedures involving the award of public contracts. The Commission is currently drafting a Green Paper for which it will seek the views of all the parties concerned by the proper application of the public procurement Directives, including with regard to penalties. The Green Paper might be adopted by the Commission by the end of the year.