Report from the Commission on monitoring the application of community law (2003) - Overall position - 21st annual report {SEC(2004) 1638}
Date: 2004-12-30
Institutions: European Commission
Subjects: EU control, activity report, application of EU law, national implementing measure

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.12.2004 
COM(2004) 839 final 

REPORT FROM THE COMMISSION 

ON MONITORING THE APPLICATION OF COMMUNITY LAW (2003) 

OVERALL POSITION 

21st ANNUAL REPORT 

{SEC(2004) 1638} 

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Each  year  the  European  Commission  draws  up  a report  on  the  monitoring  of  application  of 
Community  law,  in  response  to  requests  made  by  the  European  Parliament  (Resolution  9 
February 1983) and the Member States (point 2 of Declaration No 19 annexed to the Treaty 
signed at Maastricht on 7 February 1992). The report also responds to the requests expressed 
by the European Council or the Council in relation to specific sectors.  

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1. 

OVERALL POSITION 

In exercising its exclusive function as guardian of the Treaties, the Commission shall 
ensure and monitor the uniform application of Community law by the Member States 
as  set  out  in  Article  211  of  the  EC  Treaty.  Article  226  EC  provides  that  the 
Commission  can  take  action  against  a  Member  State  for  adopting  or  maintaining 
legislation or rules which are contrary to the fundamental principles of Community 
law as enshrined in the Treaties.  

The  White  Paper  on  European  Governance1  published  by  the  Commission  in  2001 
emphasises  that  the  primary  responsibility  for  applying  Community  law  lies  with 
national administrations and courts in the Member States. Cooperation between the 
administrative bodies in the Member States and the Commission is a crucial element 
in  the  effective  monitoring  of  the  application  of  Community  law.  This  duty  of 
cooperation is formally enshrined in Article 10 EC. 

The primary objective of infringement proceedings, particularly in the pre-litigation 
stage, is to encourage the Member States to comply voluntarily with Community law 
as quickly as possible. At all stages of the pre-litigation stage the Commission seeks 
to  promote  contact  between  its  departments  and  the  national  administrations. 
Furthermore,  the  Commission  has  aimed  to  boost  cooperation  with  the  Member 
States by means of complementary or alternative methods to resolve problems.  

The undertaking of monitoring the application of Community law is vital in terms of 
the  rule  of  law  generally,  but  it  also  helps  to  make  the  principle  of  a  Community 
based  on  the  rule  of  law  a  tangible  reality  for  Europe’s  citizens  and  economic 
operators.  The  numerous  complaints  received  by  the  citizens  of  the  Member  States 
constitute  a  vital  means  of  detecting  infringements  of  Community  law.  The 
Commission  has  reinforced  the  instruments  and  facilities  both  for  registering 
complaints and for dealing with them more quickly. Accordingly, a form is available 
on-line.2 In addition to this, the Secretariat General of the Commission is developing 
a new Internet-based tool to facilitate the filing of a complaint.  

The  21st  Annual  Report,  including  the  annexed  documents  of  the  services  of  the 
Commission,  gives  an  account  on  the  Commission’s  activities  in  connection  with 
monitoring the application of Community law in 2003. The objective of the report is 
twofold: 

– 

– 

to provide the Member States, the general public and economic operators with 
an  overview  of  the  ongoing  work  directed  to  ensuring  the  benefits  of  a 
Community based on the rule of law;  

to  inform  the  European  Parliament  of  the  ways  in  which  the  Commission 
exercises the authority conferred upon it by the Treaties to ensure the correct 
application of Community law. 

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European Governance – A White Paper, COM(2001)428 
http://europa.eu.int/comm/secretariat_general/sgb/lexcomm/form_en.pdf 

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1.1. 

Statistics for 2003  

3,927  infringement  cases  were  running  on  31.12.2003.  Among  these  were:  1,855 
cases in motion for which proceedings have been commenced, 999 cases for which a 
reasoned opinion has been sent, 411 cases which have been referred to the Court of 
Justice,  69  cases  for  which  Article  228  proceedings  have  been  commenced.  (See 
Annex II, table 2.3) 

The  total  volume  of  infringement  cases  initiated  by  the  Commission  is  up  15%, 
from 2,356 in 2002, to 2709 in 2003.  

The statistics for 2003 reflect a decrease in the number of complaints registered by 
the  Commission  from  1,431  in  2002  to  1,290  in  2003,  indicating  a  decrease  of 
9.85%. The 2003 figures fairly correspond to the levels registered between 1999 and 
2001, thus the increase of complaints in 2002 may be seen as a deviation. Complaints 
still  form  the  bulk  of  infringement  procedures  initiated  by  the  Commission  against 
the  Member  States.  The  principal  sectors  concerned  are  environment  (493 
complaints),  internal  market  (314  complaints)  and  taxation  and  customs  (119 
complaints). 1,158 cases were active on 31.12.2003. 

The  number  of  cases  initiated  by  the  Commission  on  the  basis  of  its  own 
investigations  decreased  in  2003,  dropping  from  318  in  2002  to  253  in  2003,  a 
decrease of 20.44%. 

The  number  of  proceedings  for  failure  to  notify  has  almost  doubled  compared  to 
the figures of 2001 and 2002. The statistics for 2003 show an increase of 92.1% from 
the  previous  year  (from  607  cases  to  1,166).  The  figures  for  2003  cover  not  only 
implementing  measures  for  directives  that  have  not  been  notified  by  the  Member 
States but also cases for failure to notify the technical norms specified in Directive 
98/34/CE  (goods).  The  caseload  here  depends  not  only  on  the  internal  discipline 
which  the  Member  States  impose  on  themselves  to  act  within  the  time-limits  that 
they themselves have accepted, but also on a rising number of directives in force.  

On  31  December  2003,  524  out  of  the  1,166  cases  were  still  on-going.  The  same 
figure for 2002 was 71 cases.  

The  Commission  has  called  for  greater  effectiveness  in  the  monitoring  of 
transposition itself and the conformity of the national transposition measures. Action 
has been taken to improve communication between the Commission and the Member 
States. In many cases Member States are required to include a “concordance table” 
with the communication of transposition measures. 

In order to facilitate further the transposition of E.U. directives into the legal systems 
of  the  Member  States,  the  Secretariat  General  has  begun  to  develop  a  database 
designed  to  allow  the  electronic  notification  of  national  execution  measures  to  the 
Commission. This project is due to enter into production in May 2004.  

1,552  letters  of  formal  notice  were  issued  in  2003,  a  vast  increase  of  56%, 
compared to 995 letters issued in 2002. However, the number of reasoned opinions 
showed a less dramatic increase from 487 in 2002 to 533 in 2003, which represents 
an  increase  of  9,4%.  Whereas  48.94%  of  formal  notices  in  2002  led  to  reasoned 

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opinions,  this  figure  was  only  34.34%  under  2003  indicating  an  increase  in  the 
number of cases being settled at the formal notice stage.  

The number of cases referred to the Court of Justice rose from 180 in 2002 to 215 
in  2003,  an  increase  of  19.4%.  This  increase  must  be  seen  against  the  increased 
volume of reasoned opinions issued under 2003.  

48.36% of the cases opened in 2003 were still pending on 31 December 2003.  

The number of terminations of decisions was 2,329. 

1.2. 

Improvements in the pre-litigation procedure 

As stated in previous reports, the Commission has sought to reduce the time elapsing 
between  the  adoption  of  its  infringement  decisions  and  their  notification  to  the 
Member  States.  In  this  context,  an  internal  verification  is  being  planned  on  the 
outlook  for  the  continuing  control  of  the  application  of  Community  law  in  the 
enlarged EU. 

In  the  field  of  improving  prevention  and  strengthening  cooperation  between  the 
Commission  and  the  Member  States  and  information  to  citizens  a  preventive 
approach  has  been  put  in  place.  The  aim  is  to  strengthen  cooperation  between  the 
Commission and Member States through the regular contacts between the Permanent 
Representations  of  the  Member  States  and  the  Secretariat  General  as  well  as  the 
Administrations of the Member States and the services of the Commission.  

The  Commission  is  also  ensuring  that  increased  information  is  systematically 
provided to the public (through the EUROPA web-site). Training projects have been 
initiated  in  the  field  of  competition  law  and  justice  and  home  affairs  to  strengthen 
national  administrations  and  legal  structures  particularly  relevant  to  their  specific 
activities.  

National  experts  have  been  invited  to  participate  in  bilateral  meetings  with 
Commission  services  in  such  areas  as  telecommunications  to  discuss  transposition 
issues  before  directives  have  to  be  implemented.  Many  Directorates  General  use 
existing  committees  or  contact  networks  for  this  purpose.  Package  meetings  to 
discuss transposition difficulties with national administrations have been successfully 
carried out. Several seminars were organised in 2003 during which the Commission 
explained to the competent authorities of the Member States the views on the correct 
implementation  of  particularly  complex  environmental  directives  with  a  view  to 
prevent, rather than correct, instances of bad application. Similar seminars have been 
organised for the acceding Member States.  

Several actions have been undertaken in the field of improving internal coordination 
and  making  the  examination  of  cases  more  efficient.  Some  reinforced  rules  have 
been  introduced  in  certain  areas,  including  an  early  warning  system  for  complaints 
and  cases  resulting  from  Commission’s  own  initiative  for  which  9  months  have 
elapsed  since  their  initial  registration.  The  priority  criteria  for  the  treatment  of 

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complaints as set out in the 2002 Communication3 are also being introduced into the 
management of cases. Efforts are being made to anticipate implementation problems 
when  designing  legislation  which  has  to  be  drafted  in  such  a  way  as  to  make  it 
“enforcement  friendly”.  The  use  of  guidelines  and  interpretative  texts  has  proved 
helpful  both  for  the  Commission  and  the  Member  States,  as  for  example,  the 
guidance  document  on  the  implementation  of  Directive  2001/42/EC4  on  the 
assessment of the effects of certain plans and programmes (“strategic environmental 
assessment” Directive). 

Since early 2003 the Commission services have started using SOLVIT - the Internal 
Market problem solving network5 for suitable complaints. 23 cases (3 petitions and 
20  complaints)  in  which  national  administrations  seemed  to  misapply  Internal 
Market  rules  were  referred  to  SOLVIT  in  2003  (about  12%  of  the  SOLVIT  case 
load).  

With regard to future legislative initiatives, some actions are being taken to heighten 
awareness  of  aspects  which  are  likely  to  present  transposition  difficulties  by 
establishing  rapid  inter-service  contacts  before  the  adoption  of  new  directives. 
Reminders  are  frequently  sent  out  to  the  Member  States  before  transposition 
deadlines  and  in  some  areas  standard  form  reminders  are  sent  out  immediately 
following  the  adoption  of  a  directive.  In  the  field  of  the  Internal  Market,  package 
meetings specifically devoted to the transposition of Directives have been organised 
with several Member States.  

Of  course,  much  time  is  spent  by  the  Commission  services  in  the  scrutiny  of  legal 
texts of the Member States transposing directives. This procedure forms a key part of 
the control of implementation and the work involved will increase substantially with 
the  arrival  of  ten  new  Member  States.  The  Fifth  Annual  Survey  on  the 
implementation  and  enforcement  of  Community  environmental  law,  the  Internal 
Market  Scoreboard  and  the  regular  implementation  reports  in  the  electronic 
communication  sector6  are  examples  of 
the 
the 
Commission on the implementation of directives.  

information  published  by 

Internal  Commission  working  methods  are  also  being  improved.  Lead  Directorates 
General on particular cases can agree with the Legal Service on work allocation in 
the  preparation  of  legal  texts  which  is  the  most  efficient  in  the  particular  context. 
This  forms  part  of  a  wider  initiative  to  increase  the  responsibilities  of  individual 
case-handlers for the development of the strategy advocated of the Commission to be 
as  pro-active  as  possible  in  seeking  to  prevent  problems  from  arising  or  to  resolve 
them without recourse to legal proceedings.  

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‘Better  monitoring  of 

Commission  Communication 
(COM(2002)725) 
OJ L 197, 21.7.2001, p. 30. 
see http://europa.eu.int/solvit for further information) 
Commission’s  2003  Report  on  the  Implementation  of  the  EU  Electronic  Communications  Regulatory 
Package (COM(2003)715 of 19 November 2003. 

the  application  of  Community 

law’ 

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1.3. 

Transposition of directives 

By  31  December  2003,  Member  States  had  on  average  notified  98%  of  national 
implementing measures necessary for the implementation of directives in all sectors.. 
The  Secretariat  General  publishes  the  available  data  every  two  months  on  its 
EUROPA-website7. Both the number of infringement procedures for non-conformity 
of  national  measures  implementing  directives  and  for  incorrect  application  of 
national  measures  implementing  directives  remained  stable  in  comparison  with  the 
figures for 2002.  

For  a  graphical  overview  of  all  complaints  and  infringements  handled  by  the 
Commission  during  2003,  see  the  tables  explaining  the  situation  in  the  different 
sectors in annex A.  

1.4. 

Referrals  to  the  Court  of  Justice  according  to  Article  228  of  the  EC  Treaty 
(developments in 2003) 

In its role as “guardian of the Treaty”, the Commission is also called upon to take all 
necessary  steps  to  avoid  the  repetition  of  infringements  committed  by  Member 
States.  Under  Article  228  EC,  the  Commission  may  ask  the  Court  of  Justice  to 
require a penalty payment or lump sum of a Member State which has failed to take 
necessary  measures  to  comply  with  a  first  judgement  that  it  has  failed  to  fulfil  its 
obligations. As in previous years it is interesting to note the evolution in the Article 
228 referrals to the Court of Justice, as shown in annex A.  

1.5. 

Transparency  

The  Commission  has  continued  to  pursue  its  objective  to  enhance  transparency, 
primarily through the use of the internet as a source of accessible information to the 
general  public.  Since  17  January  2001,  the  Commission  has  announced  recent 
decisions to issue letters of formal notice and reasoned opinions, to refer cases to the 
Court of Justice and to terminate cases (country and sector).8 

As a new feature, a calendar for the transposition of directives can be found on the 
Commission  website,  where  it  is  possible  to  view  the  directives  addressed  to  the 
Member States classed by date for transposition (year and month).9  

Furthermore, citizens of the Member States can monitor progress in the notification 
of national  measures implementing  directives by Member State and sector.10 These 
data  regarding  communications  of  NEMs  (national  execution  measures)  by  the 
Member States are published every two months.  

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http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#transpositions 
http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#infractions 
http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#calendar 
http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#transpositions 

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1.6.  Modernisation of information technology tools 

In order to improve the tools used to control the application of Community law, the 
Secretariat  General  has  launched  the  development  of  a  new  web-based  Electronic 
Notification database as well as a new web-based version of the internal monitoring 
tool  of  the  Secretariat  General,  the  Infringements/ASMODEE  database.  The  new 
version of the internal monitoring tool will enter into production in April 2004. 

1.7. 

Preparation for enlargement of the Union 

As  of  1  May  2004  the  European  Union  consists  of  25  Member  States.  Ten  eastern 
and  central  European  states  will  be  welcomed  into  the  Union,  representing  the 
biggest ever enlargement in the history of the Community. 

The acceding Member States have the obligation to fully and correctly transpose and 
implement  the  ‘acquis  communautaire’  by  the  date  of  accession  so  as  to  guarantee 
equivalent rights and obligations to all citizens of the enlarged European Union. In 
view  of  this  extensive  process,  the  Commission  has  undertaken  extensive 
preparations  in  order  to  ensure  the  full  respect  of  Community  law  by  1  May  2004. 
The  Commission  has  equally  encouraged  close  co-operation  with  the  acceding 
countries. 

The ‘acquis communautaire’ amounts to some 1,600 directives. Formal notification 
to  the  Commission  of  transposition  measures  had  to  intervene  upon  accession.  The 
Commission offered to the acceding countries the Pre-Notification Database in order 
to enable the storage of NEMs unofficially and electronically communicated before 
accession.  Moreover,  the  Commission  has  also  worked  to  create  synergies  and 
explain  the  detailed  procedures  regarding  infringements  and  control  of  Community 
law  in  a  series  of  events  organised  during  the  last  months  of  2003.  The  Pre-
Notification  Database  has  been  widely  used  by  the  acceding  countries  as  from 
October 2003.  

Ahead  of  accession  the  data  stored  in  the  Pre-Notification  Database  will  be  taken 
over  by  the  new  web-based  Infringements  database.  Thus,  communications  to  the 
Commission  will  be  regarded  as  official  notifications  from  1  May  2004  onwards 
unless the acceding Member States refuse this possibility. Hence, as from the date of 
accession  the  acceding  countries  will  be  monitored  in  the  same  way  as  the  current 
Member States.  

In general terms, the Commission will not delay infringement procedures subsequent 
to  accession.  Thus,  the  same  treatment  as  for  the  current  Member  States  will  be 
applied to the new members. The Commission has identified priority sectors, namely 
those included by the Commission in its legislative programme for 2004.11 

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COM(2003) 645/5 

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