Commission Recommendation of 12 July 2004 on the transposition into national law of Directives affecting the internal market (Text with EEA relevance)
Date: 2004-04-12
Institutions: European Commission
Subjects: EC Directive, EU Member State, EU control, EU law - national law, European Commission, national implementing measure, single market

16.4.2005

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Official Journal of the European Union

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COMMISSION RECOMMENDATION

of 12 July 2004

on the transposition into national law of Directives affecting the internal market

(Text with EEA relevance)

(2005/309/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community, and in particular Article 211 thereof,

establishing the European

Whereas:

(1)

(2)

(3)

Member States transposing Directives into national
law
can choose the form and methods for such transposition,
but are bound by the terms of the Directive as to the
result to be achieved and the deadline by which transpo-
sition should take place.

At several summit meetings,
including those held in
Stockholm in March 2001, Barcelona in March 2002
and Brussels in March 2003 and 2004, the European
Council, recognising the importance of a properly func-
tioning internal market (1) for the competitiveness of the
European economy, has repeatedly urged Member States
to accord high priority to the transposition into national
law of Directives affecting the internal market.

of

and

the Committee

The European Parliament (2), the European Economic and
Social Committee (3)
the
Regions (4) have repeatedly expressed concern about the
poor records of Member States in transposing internal
market Directives correctly and on time. The Interinstitu-
tional Agreement on better law-making of 16 December
2003 (5) also emphasised the need for Member States to
comply with Article 10 of the Treaty and called upon
Member States to ensure that Community law is properly
and promptly transposed into national
law within the
prescribed deadlines.

correctly by the deadlines they themselves have agreed,
most Member States do not even meet the interim trans-
position targets set by the European Council, and many
such Directives have still not been transposed into
national
the
deadline for transposition has passed.

law in all Member States

long after

incorrect

internal market
Late or
Directives is causing harm to businesses and citizens, as
it often deprives them of their rights.

transposition of

Late or incorrect transposition also deprives businesses
and consumers of
the full economic benefits of a
properly functioning internal market and harms the
competitiveness of the European economy as a whole,
undermining the ability of the Community to generate
economic growth while sustaining a high level of social
cohesion.

In a European Union of 25 or more Member States, there
is an increased risk that late or incorrect transposition of
Directives will cause fragmentation of the internal market
and a consequent dwindling of its economic benefits.

incorrect

transposition,

The Commission will continue, as a matter of priority, to
take vigorous legal action against Member States for late
or
and to encourage peer
pressure through the regular publication of the transpo-
sition records of Member States in the Internal Market
Scoreboard; however, while these actions have had some
transposition deficits nevertheless
success in the past,
persist
the
and
Commission and Member States is therefore necessary.

a more proactive

approach by

(5)

(6)

(7)

(8)

(4)

Despite these calls and the fact that timely and correct
legal obligation, Member States
transposition is
a
transpose internal market Directives
regularly do not

(1) The Internal Market also covers three EFTA States, Iceland, Liech-
the

their membership of

tenstein and Norway, as a result of
European Economic Area Agreement.

(9)

The Commission indicated, in its 2002 Communication
the application of European
on better monitoring of
Community law (6), how it can and does assist Member
States with transposition of Directives into national law.

(2) Harbour Report, A5 0026/2003 (OJ C 234, 30.9.2003, p. 55);

Miller Report, A5 0116/2004.

(3) OJ C 221, 7.8.2001, p. 25; OJ C 241, 7.10.2002, p. 180; OJ C 234,

30.9.2003, p. 55.

(4) OJ C 128, 29.5.2003, p. 48.
(5) OJ C 321, 31.12.2003, p. 1.

(10)

It is up to Member States, however, to ensure that they
transpose Directives correctly and on time.

(6) COM(2002) 725 final of 11.12.2002.

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(11) Article 10 of the Treaty requires Member States to take
all appropriate measures, whether general or particular,
to ensure fulfilment of their obligations arising out of the
Treaty or resulting from action taken by the institutions
of the Community.

(17) A number of good practices have been identified that
help Member States
internal market
Directives into national law in a timely and correct way.

to transpose

(12)

The Court of Justice of the European Communities has
consistently held that Member States may not plead
provisions, practices or circumstances existing in their
own internal
legal systems to justify failure to comply
with obligations and time limits laid down in Directives.

(18)

(19)

(13)

(14)

There is a need for Member States, given the repetitive
nature of their failure to transpose Directives correctly
their procedures and
and on time,
this
practices
legal obligation.

they consistently meet

to ensure that

to re-examine

others,

records

effective

the fact

reflecting

Some Member States have consistently much better
the
transposition
than
structures,
existence or adoption of more
procedures and practices; however,
that no
Member State has a perfect record suggests that all
need to look to improve. In accordance with the Inter-
institutional Agreement on better
the
Member States should draw up, for themselves and in
the interests of the Community, correlation tables illus-
trating as far as possible the correspondence between
Directives and transposition measures, and should make
those tables public.

law-making,

It is for each Member State to choose the procedures and
practices best designed to ensure the correct and timely
transposition of internal market Directives, having regard
to what would be most effective in the context of that
Member State, since procedures and practices that are
effective in one Member State may not be as effective
in another.

the

legal uncertainty

In view of
and confusion
engendered by the late transposition of internal market
Directives, businesses and citizens should be informed
when Directives are not
transposed on time and of
their legal rights in such cases.

(20) Where draft implementing provisions are submitted to
national Parliaments, they should be accompanied by a
declaration
with
Community law and informing the Parliament whether
they transpose in full or in part the Directive concerned.

compliance

concerning

their

(21) Without prejudice to the Commission’s role and obli-
the Commission
gations as guardian of
implementing
informed, when national
should be
the Directive
provisions are notified to it, whether
concerned is
fully or partly transposed into
national law and whether the provisions are believed to
comply with Community law.

the Treaty,

thus

(15)

The Commission announced in its Communication
‘Internal Market Strategy 2003-2006’ (1) that
it would
issue a Recommendation setting out a number of good
practices which should be followed by Member States to
ensure better and faster transposition of internal market
Directives.

(22) Where Member States decide to include the transposition
of a Directive as part of a wider legislative exercise, this
can lead to their not meeting the transposition deadline;
the insertion of conditions and requirements additional
to those necessary to transpose a Directive can also
hinder the objectives pursued by the Directive concerned,

HEREBY RECOMMENDS THAT THE MEMBER STATES:

(16) Member States have expressed an interest in learning
from one another’s practices, and have been consulted,
through the Internal Market Advisory Committee, on
their good transposition practices and their different
national constitutional,
legal and administrative rules
and practices insofar as they may affect transposition.

(1) COM(2003) 238 final of 7.5.2003.

1. Take

the

are
steps, organisational or otherwise,
necessary to deal promptly and effectively with the
underlying causes of their persistent breaches of their legal
obligation to transpose internal market Directives correctly
and on time;

that

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2. Examine the best practices set out in the Annex and, having
regard to their national institutional traditions, adopt those
practices that will, or can be expected to,
lead to an
improvement in the speed or quality of transposition of
internal market Directives;

3.

In a timely manner, publish a list of the internal market
Directives which have not been fully transposed into
law on time and inform business and citizens
national
that, notwithstanding non-transposition,
in
certain circumstances have legal rights under non-transposed
Directives; this information should be made available at least
on a Government website;

they may

4. Ensure that, where draft national

implementing provisions
are submitted to national Parliaments, they are accompanied
they are believed to comply with
by a declaration that
they transpose a particular
Community law and that
Directive in full or in part;

5. Declare to the Commission, when notifying national imple-
menting provisions that, to the best of their knowledge, such

comply with Community law and declare
provisions
whether they transpose the Directive concerned in full or
in part;

6. Refrain from adding to national

implementing legislation
conditions or
that are not necessary to
transpose the Directive concerned, where such conditions
or requirements may hinder attainment of the objectives
pursued by the Directive;

requirements

7. Ensure, when transposition of a Directive is included in a
wider legislative exercise at national level, that this does not
lead to missing the deadline for transposition.

Done at Brussels, 12 July 2004.

For the Commission

Frederik BOLKESTEIN
Member of the Commission

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ANNEX

IDENTIFIED PRACTICES OF MEMBER STATES THAT FACILITATE THE CORRECT AND TIMELY
TRANSPOSITION INTO NATIONAL LAW OF DIRECTIVES AFFECTING THE INTERNAL MARKET

1. Making correct and timely transposition a permanent political and operational priority

1.1. One senior member of government, at Minister or Secretary of State level, is designated as being responsible for
monitoring the transposition of all internal market Directives into national law and for improving the transposition
record of the Member State. This member of government has the visible support of the Head of Government in this
task and it is clear to Ministers and the administration that the government considers correct and timely transpo-
sition to be a priority.

1.2. All Ministers receive a report regularly (for example, once a month) on the transposition records of all Ministries/-

governmental bodies. Transposition records are discussed regularly at meetings of Ministers.

1.3. Sufficient resources are allocated to ensure correct and timely transposition.

2.

Ensuring permanent monitoring and coordination of the transposition of internal market Directives at
administrative and political level

2.1. One Ministry or government body is responsible for monitoring transposition as a whole. It coordinates transpo-
sition with the Ministries and sub-federal, regional and devolved government bodies responsible for transposition,
and is sent the planning schedule for transposition. It ensures that progress on transposition is discussed with
Ministries at high administrative level regularly (for example, once a month). It reports regularly (for example, once a
month) to the Minister or Secretary of State responsible for monitoring transposition. It also acts as national
coordinator for dealing with the Commission concerning the transposition record of the Member State.

2.2. Each Ministry and each sub-federal, regional and devolved government body that carries out transposition designates
officials who are responsible for monitoring transposition in the Ministry or body and for acting as a contact point.
A national network is established among these officials.

2.3. Guidelines are issued, setting out how transposition should be carried out and ensuring that there is a common

approach to transposition throughout the administration.

2.4. A central national database is maintained on transposition. This database is accessible to all Ministries and sub-
federal, regional and devolved government bodies involved in transposition. For each Directive,
it contains: the
references and subject-matter of the Directive; the Ministry or other government body responsible for transposition,
and the persons responsible within the Ministry or government body; a list of other Ministries and government
bodies involved in transposition and the persons responsible; the resources needed for transposition; the deadline for
transposition; the measures to be taken to transpose the Directive; the planned time-schedule for transposition
(including any parliamentary deliberations); the state of progress; any difficulties in transposition; and whether
infringement proceedings have started for late or incorrect transposition. It is possible to establish at any time
the transposition record of the Member State as a whole and by Ministry.

2.5. Reminders are sent to the Ministry or other government body responsible before the deadline for transposition (for

example, three months and again one month before the deadline).

2.6. When a deadline has passed, a reminder is sent immediately at both administrative and Ministerial level, and the

national Parliament is informed.

2.7. Member States are proactive in seeking the advice and assistance of the Commission on transposition issues in a
timely way. The contact point database set up by the Commission is used to identify the officials responsible.

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3.

Ensuring that preparations for transposition take place at an early stage and that they have as their aim
correct and timely transposition

3.1. A planning schedule for transposition is prepared during negotiations of the Directive by the Ministry or other
government body responsible for negotiations, and in any event before the Directive is adopted. For each Directive,
the planning schedule includes: the references and subject-matter of the Directive; the Ministry or other government
body responsible for transposition, and the persons responsible within the Ministry or government body; a list of
other Ministries and government bodies involved in transposition and the persons responsible; the resources needed
for transposition; the deadline for transposition; a comparison of existing national
law and the terms of the
proposed directive; the measures to be taken to transpose the directive; and the planned time-schedule for trans-
position (including any parliamentary deliberations). This planning schedule is sent to the Ministry or government
body responsible for monitoring transposition as a whole, a short time (for example, four weeks) after publication of
the directive in the Official Journal of the European Union, to ensure that the transposition database is kept up to date.

3.2. Drafting of legislation starts before or as soon as the Directive is published in the Official Journal of the European

Union.

3.3. A correlation table is prepared by the Ministry or other government body responsible for transposition, setting out
how each provision of a Directive is being transposed into national law. This table accompanies any draft national
implementing legislation when it is sent to the Parliament or government to facilitate their deliberations, and
accompanies any notification of the national implementing legislation to the Commission.

3.4. The addition of supplementary provisions that are not necessary to transpose a Directive is avoided. Where it
happens, the Ministry or other government body responsible justifies why it is considered necessary and establishes
that it will not result in delays in transposition.

3.5. To the extent possible, national officials responsible for negotiating a Directive are involved in its transposition into
national law. If this is not possible, they cooperate closely with those that are responsible for transposition. In any
event, officials who are negotiating a Directive keep those officials who will transpose it informed throughout
negotiations of the Directive to ensure that any potential transposition problems are raised and dealt with before the
Directive is adopted.

3.6. Representatives of any sub-federal, regional or devolved government body that will have to transpose a Directive are

kept informed during negotiation of the Directive.

3.7. National implementing legislation is notified to the Commission electronically.

4. Working closely with national, regional and devolved Parliaments involved in transposition of internal

market Directives to ensure correct and timely transposition

4.1. Parliaments are sent proposals for Directives as soon as they are presented by the Commission, and are kept advised

of progress in negotiation of Directives.

4.2. Parliaments receive reports on a regular basis (for example, every three months) on progress in transposition, on
Directives whose transposition is late and on infringement proceedings initiated by the Commission for late or
incorrect transposition.

4.3. Together with draft national legislation, Parliaments are sent a timetable for transposition, a clear indication of the
deadline, any correlation tables that have been prepared and a Government declaration that the national imple-
menting measure is believed to comply with Community law.

4.4. Parliaments receive early warning (for example, three months before the transposition deadline) from government

that the deadline for transposition is approaching. They are advised when the deadline has passed.

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4.5. The government encourages Parliaments to set aside time to transpose Directives in good time.

5.

Taking action quickly, visibly and effectively to transpose Directives whose transposition is late

5.1. All necessary measures are taken to ensure that any directives that have not been transposed on time are transposed

as soon as possible after the deadline for transposition.

5.2. Where the transposition of one or more directives is late, Parliaments are encouraged to set aside additional time to

transpose such directives as soon as possible and to deal with any procedural cause of delays.

5.3. Member States publish the list of directives they have not transposed on time and advise business and citizens that,
notwithstanding non-transposition, they may in certain circumstances have legal rights under non-transposed
Directives.

5.4. Where there is a persistent failure to transpose directives on time, Member States examine to what extent the
legislative procedure before Parliament may be shortened for transposition of directives. Adoption in one reading or
under an accelerated procedure is envisaged.

5.5. Where there is a persistent failure to transpose directives on time, and where this is permitted by a Member State’s
Constitution or internal legal order, the use of governmental decrees or regulations to transpose is considered if it
will speed up transposition.