Opinion of the Committee of the Regions on the 'Implementation of EU law by the regions and local authorities'
Date: 1999-09-15
Institutions: European Committee of the Regions, Provisional data
Subjects: administrative structures, application of EU law, local authority, national implementing measure, region, technical barriers to trade

23.12.1999

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Official Journal of the European Communities

C 374/25

Opinion of the Committee of the Regions on the ‘Implementation of EU law by the regions and
local authorities’

(1999/C 374/06)

THE COMMITTEE OF THE REGIONS,

having regard to its Bureau’s decision on 15 July 1998, under the fourth paragraph of Article 198c of the
Treaty establishing the European Community, to draw up an opinion on the subject and to direct the
Commission for Institutional Affairs to prepare this opinion;

having regard to the draft opinion (CdR 51/99 rev. 2) adopted by the Commission for Institutional Affairs
on 6 July 1999 (rapporteur: Mr Lars Nordström),

adopted the following opinion unanimously at its 30th plenary session of 15 and 16 September 1999
(meeting of 15 September).

1.

Introduction

2. Legislative implementation of EC directives

1.1.
The Member States bear sole responsibility to the EU
for the implementation of EU law. This applies both to the
implementation of EC directives under national law and to
administering their enforcement. Within the individual states,
however, these tasks can be divided between the central
government and the regional and local authorities. In many
cases, the regions and the local authorities bear a considerable
part of the burden resulting from this obligation to implement
EU law.

1.2.
Participation of the regions and local authorities at a
national level in the process of implementing EU law reflects
the practical significance which EU law has for them. EU law
is more and more affecting areas of regional and local
competence. Consequently, inclusion of the regions and local
authorities at national level both in the process of legislative
implementation of Community law under national law and
also in the administration of its enforcement, offer the regions
and local authorities an important opportunity to:

— contribute their expertise,

— have their specific,

individual characteristics taken into

account,

— preserve their diversity and their peculiarities,

— allow for efficient administration of enforcement at a level

close to the citizen.

For the regions and local authorities, participation in
1.3.
the implementation of EU law is therefore a necessary
extension of their involvement in the EU law-making process
currently exercised via the Committee of the Regions and, in
some Member States, by means of an additional special
procedure for involvement of the regions and local authorities
in the central government’s European policy.

law. Another possibility is

2.1. Within the EU Member States, there are various forms
of including the regions and local authorities in the legislative
implementation of EC directives. In some countries EC direc-
tives are partially implemented under national
law by the
legislature in the regions. This applies to regions with own
legislative competence within the scope of their exclusive
the
powers under national
implementation by central government legislative bodies in
collaboration with a national Regional Panel. Besides, there are
various other forms of participation by regions and local
authorities in the process of implementation of EC directives
into national legislation. This may also include informal ways
of cooperation. The transposition of EU Directives may have
consequences for the powers exercised by devolved authorities.
Application of EU rules may in certain cases regulate or even
curtail the executive powers of devolved authorities and may
have financial consequences for their budgets.

The active participation of

the regions and local
2.2.
authorities in the legislative implementation of EC directives
allows for greatest possible flexibility and extensive consider-
ation of regional singularities. Besides, a particularly high
degree of expertise is concentrated into the legislative process.

The adaption to local requirements enhances adminis-
2.3.
trative efficiency and provides for increased democratic legi-
timation. It also enhances the acceptance of Community law
by the citizen.

2.4.
The different ways of participation of the regions and
local authorities in the legislative implementation of EC
directives depend upon the specific constitutional background
in each Member State. These differences must be fully
respected.

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3. Administrative implementation of EU law

It is possible to identify three ways in which EU law is
3.1.
enforced by the administration within the individual Member
States, namely,

— enforcement principally by regional/local administrations,

— enforcement dependent upon content, partially by national
and partially by regional/local administrative bodies,

— enforcement exclusively by the central authorities of the

Member States.

3.2.
The appointment of responsibility among national,
regional and local authorities varies from Member State to
Member State. Any harmonisation in this regard is not
desirable. There should be taken care, however, within the
constitutional framework of each Member State, that the
administrative implementation of EU law is guided by the
following principles:

— greatest possible closeness to the citizen,

— contribution of local and regional expertise,

— administrative efficiency by giving consideration to specific

characteristics,

— improved control and prevention from abuse by transfer-

ring responsibility to local and regional politicians,

— best prerequisites for acceptance by the people.

— assignment of administrative responsibility to the level

nearest the citizen.

3.3.
Being close to the citizen is a strength itself for the
administration. It stimulates a democratic society. It is also the
most cost-effective way of administration. This also provides
for direct accountability of and control by local and regional
politicians, so preventing misapplication of EU funds.

3.4.
Accountability and control can best be realised in areas
of limited size. This in turn contributes to the efficiency and
acceptance of the political system. Therefore, with all regard
and due respect of the constitutional situations in the Member
States, a good administrative implementation of EU law is in
most cases depending on regional and local bodies.

4. Some problems of enforcing EU law

4.1. General comments

4.1.2.
Another key factor is that legislation must be of a
generally high quality and account must be taken of the
financial and administrative impact of implementation on
regional and local authorities.

4.1.3.
The Amsterdam Treaty and its protocol on the
application of the principles of subsidiarity and proportionality
is a welcome, clear expression of the importance the EU
attaches to a balance between the various levels (EU, Member
States, regions and local authorities).

Here, for instance, points 5,7 and 9 of the protocol
4.1.4.
and article 203 of the Treaty are of particular relevance,
especially the protocol’s formal statement that the financial
and administrative impact of Commission proposals must be
assessed.

4.1.5.
The Amsterdam Treaty therefore provides a unique
base for creating a sound balance and cooperation between
the various levels, where differing regional and local situations
can be taken into account.

4.1.6.
Further, the Amsterdam Treaty helps to highlight the
need for the EU to take reasonable heed inter alia of the regional
and local authorities’ capacity to finance tasks resulting from
new legislation and their ability to cope with the administrative
consequences of such legislation.

In this connection, the work carried out by the
4.1.7.
Commission and the progress achieved as regards improving
the quality of legislation etc. calls for due recognition.

4.1.8.
Though the above development can be seen as
positive, attention should be drawn to a number of areas
which can give rise to problems at regional and local level.

4.1.9.
It must be remembered that views on the scale of the
problems set out below may differ, depending on factors such
as tradition, the constitutional situation and the degree of
regional and local self-government.

4.2. The quality of the legislation

4.2.1.
to the quality of Community legislation (1).

The principle of subsidiarity is of utmost importance

4.2.2.
It has to be borne in mind that the ideas regarding
the principle of subsidiarity and related items can be different
in certain aspects. On the one hand there are those that have
the opinion that the principle of subsidiarity should be applied
in a dynamic way. On the other hand there are those who
believe that the main purpose of the principle of subsidiarity
is to protect the Member States and the regions as well as
local authorities from unnecessary Community action, thus
restricting the scope of action of the EU and its institutions in
some areas.

A sound balance between the EU, the Member States
4.1.1.
and, on a subnational level, the regions and local authorities is
a prerequisite for effective implementation of EU legislation.

(1) In this respect, reference is made to the observations in the
Opinion of the Committee of the Regions on Better lawmaking
1998 — a shared responsibility (CdR 50/99 fin).

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4.2.3.
Similarly, different approaches can be seen when it
comes to the question of a clear division of powers between
the respective levels [EU, Member States and regions/local
authorities]. Some argue (amongst them the Commission) that
a more precise fixing of the powers of the EU would be
detrimental to the flexibility of Community action and there-
fore might hinders progress of Community legislation. Others
postulate the necessity of a clearer fixing of the EU powers in
addition to the strict appliance to the principle of subsidiarity.

there

Besides,

are differences

4.2.4.
concerning the
interpretation of the term ‘exclusive powers of the Com-
munity’. The Commission claims that, for example, all legis-
lation concerning the common market belongs to the sphere
of exclusive powers of the Community with the consequence
that the principle of subsidiarity does not apply. Others believe
that the area of exclusive powers of the Community should be
more limited so that the principle of subsidiarity can be applied
more frequently.

4.2.5.
These various ideas regarding important aspects of
the quality of EU legislation can themselves be seen as
an expression of the differences — cultural, historical and
constitutional — that exist between the Member States and
regions in EU. In this sense the differences must be fully
respected, as a valuable part of the European dialogue.

4.3.
Increasing EU activity in areas typically belonging to
the sphere of competence of the regions and local authorities
restricts the scope of action allowed to regions and local
authorities.

In some areas of [exclusive] competence of the local
4.3.1.
and regional authorities — for example: local and regional
planning — there is a clean [bottom-up] desire for more
exchange of
information, mutual consultation and co-
ordination at the European level.

4.4. Administrative expenditure

4.4.1.
Community legislation and programmes — for
example in the area of collecting statistical data — often
require a considerable administrative effort by regional and
local authorities, sometimes disproportionate to the benefits.
Furthermore, the purpose of some administrative obligations
is sometimes unclear, or they seem to be an end in themselves.

It is understandable that an increasing administrative
4.4.2.
burden without a clean purpose or benefit will easily lead to
general feelings of annoyance and fading support for European
integration.

4.4.3.
Regional and local authorities are confronted with
expanding tasks and an increasing administrative burden
legislation,
emanating from both European and national
whereas they have to execute these tasks with their normal [or
in some cases even decreasing] capacity. The capacity of local
and regional authorities to perform the tasks conferred upon
them by European [and national] legislation must therefore be
taken into account before new legislation is adopted.

4.4.4.
The EU institutions must therefore scrutinise Euro-
pean legislation — existing and new — and eliminate any
requirements that are not strictly necessary. The necessity must
be established not only in absolute, but also in relative terms,
taking into account the cost/benefit aspect. Any administrative
requirement must have a clear purpose.

4.5. Financial impact

4.3.2.
If there is a European dimension to the subject in
question, transnational co-ordination is only to be welcomed.
However, these initiatives may turn into EU legislation or
programmes and agreements with a binding character, thus
restricting for example the sovereign planning powers of
regions and local authorities.

4.5.1.
In this respect, reference is made to the observations
in the Opinion of the Committee of the Regions on the
Evaluation of the financial and administrative consequences for
local and regional authorities of EU legislation of 15 November
1995 (2).

4.3.3.
It has to be borne in mind that voluntary cooperation
and coordination at the European level between the parties
concerned can arrange many things. There is no significant
need for centralised EU legislation or regulations to achieve
certain goals.

4.3.4.
Further, in some cases it may be wondered whether
the EU’s areas of competence need to be specified in the
Treaty. On earlier occasions the COR has taken the view that
such clarification is justified and necessary in the case of local
and regional planning strategy (1).

4.5.2.
Particular reference should also be made to the
frequent disparity between administrative costs and the ‘return’
in the case of numerous smaller promotion schemes, e.g. in
the sector of architectural conservation in cases where there is
no concentration on measures of exceptional supraregional
significance. Therefore, in the case of smaller development
programmes, the return must be proportional to the adminis-
trative expense. Furthermore it must be checked whether
preference should not rather be given to concentrating funds
on individual measures of particular importance.

(1) CdR 340/96 fin — ‘Spatial planning in Europe’ — OJ C 116,

14.4.1997, p. 1.

(2) CdR 368/95 — OJ C 126, 29.4.1996, p. 1.

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4.6.

Implementation within the Member States

4.6.1.
The problems that may occur when enforcing Com-
munity legislation can in some cases be related to the
legislation or implementation within the individual Member
States. Although this must be fully recognised, the principle
must be that a specific problem suitably is handled at the same
level that it can be related to.

Local and regional authorities have a duty to observe
4.6.2.
the provisions of Community directives from the dates set for
their entry into force, even when the relevant laws have not
been adopted by national government (the case law of the
Court of Justice refers to this as the ‘vertical effect of directives’).
Local and regional authorities must also play a monitoring and
implementation role when Community directives have been
wrongly or imprecisely transposed into national law.

5. Conclusions and proposals

5.1.
A good implementation begins with good law-making.
This means on the one hand, that the principles of subsidiarity
and proportionality have to be fully applied. Reaffirming the
findings and conclusions of the COR in its report ‘For a New
Culture of Subsidiarity’ (1), the principle of subsidiarity must
be consistently implemented in all areas of EU activity.

5.2.
The principle of subsidiarity as a rule for the exercise
of authority should be supplemented by a better defined
demarcation of functions in the form of rule for the allocation
of authority.

5.3.
Besides, due regard has to be given to the financial
and administrative consequences for the local and regional
authorities in the purpose of avoiding over-regulation and
unnecessary administration. It would moreover be interesting
for the Commission to be able to gauge the financial impact
on local/regional authorities of Community draft legislation
and for the Member States to involve such authorities in
assessing the financial cost of legislation which is currently
under negotiation.

5.4.
On the other hand, the regions and local authorities
have to be most effectively included in the EC law-making
process. This will enhance the legitimacy and effectiveness of
EU law. It will also help to preserve diversity within Europe
and contribute significantly to the acceptance of EU law
amongst the citizens.

(1) CdR 302/98 fin — OJ C 198, 14.7.1999, p. 73.

5.5.
There are, according to the respective constitutional
and historical background in the Member States, a lot of
different ways for the regions and local authorities to gain
influence on the EC law-making process. These may include
formal participation in formulating the position of the national
government in the Council by means of at least partially
binding resolutions of the regional chamber within a Member
State or lobbying activities by special representations of certain
regions or local authorities in Brussels. The only possibility to
gain influence, however, which is at hand to all regions and
local authorities irrespective of the constitutional background
in each Member State is the COR.

5.6.
Therefore, it is essential that the effectiveness of the
participation of the COR in the EU law-making process be
strengthened. This requires among others:

— The provisions in the Treaty of Amsterdam concerning the
own administrative body of the COR have to be fully
applied. To that end, the COR has to be provided with the
necessary funds for its own administrative body. The COR
strongly requests the respective EU institutions to take care
for the adequate funding of the COR, which is of ultimate
importance for its good functioning.

— Since no other EU institution disposes of the full knowledge
of the practical impact of EU legislation on the regions and
local authorities, the Commission should be required to
consult the COR on possible cooperation already during
an early preparatory stage of EC law-making. In this regard,
the COR refers to the findings in its Opinion on the
the financial and administrative conse-
Evaluation of
quences for local and regional authorities of EU legislation.

The COR welcomes the common practice of

the
5.7.
Commission to prepare EC legislation by publishing Green
Papers and White Papers for public discussion and debate.
This practice, however, does not eliminate the necessity of
participation of the COR as a bank of knowledge in the early
stages of concrete law-making projects.

5.8.
The nature and extent of inclusion of regions and local
authorities in the process of implementation under national
legislation depends on the organisation and internal structure
of each Member State. However, in every case, appropriate
consideration of the specific concerns of regions and local
authorities should be guaranteed. This is the indispensable
prerequisite for the preservation of direct authority and the
specific characteristics of each region and local authorities, as
well for increased contribution of local and regional expertise.

5.9.
To this end, the Committee of the Regions reaffirms its
view that the Committee of the Regions, as the representative
of local and regional authorities, should be formally consulted
at a formative stage by the Commission and national govern-
ments on legislative proposals that may significantly affect the
general public.

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5.10.
Of pre-eminent importance in attaining closeness to
the citizen, efficiency and contribution of local and regional
expertise, as well as in guaranteeing most effective control of
the correct use of funds is the implementation of Community
law by regional and local authorities. The regions and local
authorities should be allowed adequate scope for administrat-
ive enforcement in accordance with their specific situations.
The implementation of EU law by the national administration
alone without strong participation of the regional and local
administration can hardly guarantee the necessary closeness to
the citizen and acceptance of EU law by the citizen.

For Community law to be implemented completely
5.11.
and effectively,
local and regional authorities must equip
themselves with the appropriate skills and resources to monitor
cases where Community directives have been transposed
wrongly or inadequately or not at all by the relevant legislative
authorities.

5.12.
research of the COR:

The following proposals are made for further in-depth

— The COR should initiate studies of long-term effects of EU
activities on the scope of action of the regional and local
authorities in specific areas, especially in planning law and
public services.

Brussels, 15 September 1999.

— The COR should initiate studies on how the effectiveness
of the participation of the COR in the EU law-making
process can be further enhanced. Special attention should
be given to an increased participation at an early stage of
the EC law-making process.

— The COR should when needed initiate comparative studies
regarding the implementation of EU law within specific
areas of
interest. The aim should be to gain greater
knowledge of implementation, that could serve as example
throughout the community. One way is to use existing
programmes for interregional cooperation and partner-
ship, for example Karolus, to investigate the implemen-
tation.

— The COR recommends the Commission to put forward a
list of existing aid programmes and budget items, thus
making it possible for the COR to evaluate the implemen-
tation regarding the administrative efforts required by the
regions and local authorities and the European value of the
programmes.

— The COR should take the necessary initiatives that could
follow dependent on the results of investigations and
studies mentioned above.

The President

of the Committee of the Regions

Manfred DAMMEYER