Opinion of the European Economic and Social Committee on  How to improve the implementation and enforcement of EU legislation
Date: 2005-09-28
Institutions: European Economic and Social Committee
Subjects: EU law, application of EU law, national implementing measure

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Opinion of the European Economic and Social Committee on ‘How to improve the implementa-
tion and enforcement of EU legislation’

(2006/C 24/13)

On 10 February 2005, the European Economic and Social Committee, acting under the second paragraph
of Rule 29 of its Rules of Procedure, decided to draw up an opinion on How to improve the implementation
and enforcement of EU legislation.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 27 July 2005. The rapporteur was
Mr Joost van Iersel.

At its 420th plenary session, held on 28-29 September 2005 (meeting of 28 September), the European
Economic and Social Committee adopted the following opinion by 90 votes to six with 12 abstentions.

Implementation and enforcement

1. EU law as basis of European integration

Executive summary

In this opinion the EESC argues that better lawmaking and
implementation and enforcement are closely linked: a good law
is an enforceable and enforced law. The Commission,
the
Council and the Court of Justice regularly address application
problems. The follow-up, however, is limited. This has to do
with different cultures and responsibilities and varying degrees
of involvement in effective implementation across Europe. The
EESC distinguishes different sets of actions to be taken by the
Member States and the Commission. For the Member States it
is primarily a matter of political will. The attitude of national
administrations has to reflect that they themselves are the EU
and that they invest accordingly in the Union's decisions. This
implies changes in specific approaches such as guaranteeing
administrative capacity, screening domestic rules and proce-
dures, abstention from gold-plating and cherry-picking and
information. As for the Member States, a
improvement of
systematic discussion between relevant authorities across the
EU is desirable, as well as ex-post evaluations and accountability
of national administrations towards counterpart authorities in
other Member States. Involvement of subnational authorities
with autonomous legislative powers is also required. The EESC
advocates an active role of the Commission in promoting confi-
dence between enforcement authorities in supporting networks
of public authorities, the systematic assessment of their perfor-
mance and the identification and spread of best practices.
Extension of existing training programmes for judges and
public administrations is to be considered. Some of the propo-
sals discussed in this opinion are under discussion within the
Commission and some changes are in the process of being put
into practice by Member States. Currently, however, the overall
picture of implementation and enforcement shows serious defi-
ciencies. The European Parliament and the national Parliaments
should be committed as well. In the EESC's view a cultural
change is required, including a shift from increasing new EU
law to an emphasis on effective application, thus ensuring that
agreed EU law and policy attains its full effect. This will contri-
bute to a well
functioning EU of 25 Member States and
beyond, ensuring its necessary cohesion.

1.1
A well-functioning internal market with appropriate
standards of social — and in particular worker — protection,
consumer protection and environmental protection is at the
legitimises integration by
core of European integration.
generating significant benefits for citizens and businesses.

It

1.2
The EU is based on the rule of law. It strengthens the
foundations of the internal market and prevents any discrimi-
nation on the basis of origin or nationality of products, persons
or companies. Effective application of EU law boosts public
confidence in European policies and processes and makes the
EU more relevant to the concerns of citizens and businesses.
This implies however a timely and correct transposition of EU
law at national level.

1.3 Moreover, European legislation that aims to remove
barriers of any kind to creating a level playing field, must be
applied promptly and coherently across the EU and enforced
effectively by all relevant authorities: national and regional.

The internal market functions properly and becomes a
1.4
source of growth and prosperity only when there are no discri-
minatory or covert barriers to citizens or businesses, including
cumbersome or lengthy administrative procedures. Numerous
complaints lodged by citizens and businesses every year result
from national measures which often tend to be too restrictive,
or too complex and disproportional (1). This is partly due to so-
called gold-plating, which takes place during transposition of
EU law into national law. Gold-plating adds national regula-
tions which may obfuscate the objectives of the EU.

(1) The results of a questionnaire on possible shortcomings and defi-
ciencies in implementation and enforcement in the Member States,
carried out by the EESC, are summarised in Appendix B.

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Better lawmaking is an integral part of

1.5
the Lisbon
Agenda. The European Council Conclusions of 22-23 March
2005 acknowledged explicitly the positive contribution of an
improved regulatory environment to competitiveness. So did
the Competitiveness Council on 6-7 June 2005 (2).
In this
respect it must be underlined that better lawmaking and imple-
mentation and enforcement are closely linked: a good law is an
enforceable and enforced law.

1.6
For a law to be enforceable it must be sufficiently clear,
and to be effective it must provide an appropriate response to
specific problems. Where the law is too complex and too
vague,
for example, because there has not been a proper
impact assessment, implementation problems inevitably arise.
As a result, additional laws have to be drafted to address these
problems. Bad laws lead to a proliferation of laws and excessive
amounts of rules that
impose an unnecessary compliance
burden on businesses and confuse citizens (3).

1.7
In order to ensure that the law is effectively imple-
mented, the authorities must have the essential administrative
capacity. Otherwise administrative weaknesses result in imple-
mentation and enforcement problems.

At

the same time, effective application of EU law
1.8
improves competitiveness and facilitates cross-border coopera-
tion, which are two fundamental aims of the Lisbon Agenda.

1.9
The EESC considers that the EU has an implementation
and compliance problem. Statistics on the state of implementa-
tion of EU law show that Member States experience delays in
the timely transposition of directives. Statistics of infringement
proceedings reveal
that often transposition is incorrect or
incomplete. Indeed, 78 % of the cases initiated by the European
Commission against Member States during 2002-5 concern
transposition and application of directives. This suggests that
in determining the
Member States
national method of implementation to give effect to directives.

experience problems

In various Resolutions

the Council has addressed
1.10
implementation and enforcement problems (4). The Interinstitu-
tional Agreement of 2003 on Better Lawmaking also referred
to ‘better transposition and application’.

(2) In point 11 of the Conclusions the Council ‘invites Member States
to redouble efforts to reduce transposition deficits and to consider
to undertake a screening of domestic legislation for compatibility
with EU rules ...’.

(3) It is quite justified to refer here to the British Better Regulation Task
Force which has published three valuable documents in 2003 and
2004 on national and European law making, including implementa-
tion. The analyses and the recommendations underline amongst
other things the need of clarity and effectiveness of law making in
order
to make the necessary interaction between the various
processes successful.

(4) Council Resolutions of 16 June 1994, of 29 June 1995 and of 8
July 1996, see National Implementation of EU Law and the Shaping
of European Administrative Policy, Hans Petter Graver in ARENA
Working Papers WP 02/17, p. 6.

1.11
In a number of cases the EU Court of Justice has ruled
on the obligation of Member States to ensure effective imple-
mentation and enforcement (5).

1.12
The Commission has produced several documents
elaborating how the Member States could improve their trans-
position and application performance (6). In its White Paper on
Governance, the Commission states:
‘ultimately the impact of
European Union rules depends on the willingness and capacity
of Member State authorities to ensure that they are transposed
and enforced effectively, fully and on time’ (7). Most recently, its
Communication of 16 March 2005 on Better Regulation for
Growth and Jobs in the European Union outlined a course of
action for improving the Community regulatory framework
without excessive administrative costs.

legal

1.13
Since 1985 the New Approach has been increasingly, a
very useful tool in enhancing effective harmonisation of stan-
dards and regulatory approaches. It creates a stable, lean and
transparent
framework with a system of checks and
balances for the authorities by using a great variety of instru-
ments defined in directives, and a major responsibility for
manufacturers and third parties. As regards implementation the
Commission concludes in particular on the basis of an in depth
analysis that ‘experience has also demonstrated that implemen-
tation of these directives can be further improved in a number
of ways’ (8). This document reveals serious shortcomings.

In its Second Implementation Report of the Internal
1.14
Market Strategy 2003-2006 (9) the Commission analyses defi-
ciencies in implementing and enforcing in a great number of
fields. It defines also intentions and aims for improvement.
Among other things this implies more direct commitment by
the Member States and thus political will. The Commission
Recommendation on the transposition into national
law of
directives affecting the internal market (10)
identifies certain
practices that Member States are urged to adopt. Chief among
such practices are the assignment of monitoring and coordi-
the
nating responsibility to a single Minister and Ministry,
establishment of a national data-base on transposed directives
and the encouragement of close cooperation between national
officials who negotiate in Brussels and officials who implement
national measures.

1.15
‘Scoreboards’ on implementation show shortcomings
in formal transposition. But, notwithstanding these signs of
attention by the respective European Institutions, the way in
which agreed rules are implemented in national legislation and/
scrutiny
or

systematic

regulation

received

not

has

(5) Ibid. p. 21.
(6) See

2005/309/EC.

lately Commission recommendation of 12 July 2004,

(7) White Paper on European Governance, COM(2001) 428 final, p.

25.

(8) Enhancing the Implementation of the New Approach Directives,

COM(2003) 240 final, p. 3.

(9) COM(2005) 11 final, 27 January 2005.
(10) OJ L 98/47, 16.4.2005

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and follow-up discussion in the Council. Whilst different imple-
mentation in different parts of a Member State would quickly
give rise to public calls for action, different implementation
from one Member State to the next is not even on the political
agenda.

2.3
Given the implementation difficulties experienced in
many Member States (13), improvement in the application of EU
law requires also concerted efforts by Member State authorities.
These have been lacking until now, just as desirable shifts to
less interventionist and lighter instruments of policy implemen-
tation and regulation are taking place in the Member States.

Undoubtedly ‘Scoreboards’ have made the transposition
1.16
record of Member States more transparent. There are not yet
equivalent ‘Scoreboards’ on application in order to enhance
transparency in how national authorities apply EU law and
policies.

1.17
Although improvements are discussed, there is still too
little awareness and too little commitment by the public stake-
holders across Europe in guaranteeing that EU law as the basis
for European integration functions correctly. This will only
happen if the whole process is duly respected: adoption of
directives,
In
many cases, the will to implement the whole process consis-
tently may well be lacking, too. The Commission documents,
numerous rulings of the Court of Justice and relevant academic
literature provide sufficient sources for the Member States to
draw on in improving the fulfilment of their legal obligations.

implementation,

transposition,

enforcement.

1.18
Effective application of EU law requires special atten-
tion and safeguards in an EU with an increasing number of
Member States. The EU's integration process must not be
jeopardised by dilution of the effectiveness of EU rules.

2. Context and developments

2.1 While the EC Treaty provides for a variety of approxi-
mation and harmonisation measures to complete the internal
market (11), experience in the 1970s and early 1980s has
shown that complete harmonisation is a slow, cumbersome
and, in certain cases, unnecessary process. Measures based on
mutual recognition and home-country control have been easier
to negotiate and implement. They have also been more effec-
tive in freeing up trade and investment without imposing an
excessive compliance burden. However, it has to be noted that
the EU has entered a new stage that
is characterised by
increasing differences in governmental cultures. This may lead
to a renewed desirability of regulations in order to attain
convergence and the promotion of good practices.

2.2
Despite the shift to new policy instruments, the growth
in Community legislation has partly been the natural outcome
of the deepening and widening of integration but also partly
the result of incomplete or defective implementation by the
Member States. New rules have been added to prevent Member
States from non-fulfilling their obligations or from making
national rules overly complex (12). An illustrative example is the
liberalisation directives adopted by the Commission on the
basis of Article 86 (3)
in such fields as telecommunication
services and telecommunications equipment.

(11) Articles 94-97 of the EC Treaty.
(12) See the White Paper on European Governance, COM(2001) 428

final.

The Lisbon European Council

2.4
in 2000, that launched
the process to raise the competitiveness of the Union, intro-
duced the open method of coordination for the purpose of
improving implementation and delivery using qualitative and
quantitative
indicators, benchmarking and best practices.
Member States have not yet drawn more systematically and
extensively on such best practices in order to improve their
own record of policy implementation.

At

2.5
the beginning the open method of coordination
raised high expectations. So did the aims of benchmarking and
best practices. Experience does not justify a positive conclusion.
Without binding commitments Member States appear to be
unwilling to adapt legislation, not to mention implementation
and enforcement.

By 2004 the ten candidate Member States had integrated
2.6
the acquis communautaire into their national
legislation. This
deadline has therefore formally been respected. But changing
law does not by itself imply correct transposition. In addition,
implementation and enforcement require satisfactory adminis-
trative authorities and procedures, which in a number of cases
had to be set up on a new footing, because there is a lack of
the necessary experience to apply EU rules effectively. Greater
cooperation between national authorities and with Community
institutions should facilitate uniform application of EU rules
across the Union (14).

2.7
Although EU regulation and legislation is directed
towards creating common conditions in an open European
market, the tools can differ considerably between one area and
another. The principle may be the same in all areas, but the
degree of integration that is aimed at can differ greatly. This
leads to less or more strictly Community-based rules and conse-
quently to different outlooks and legal approaches.

2.8
These differences arise from the different objectives of
integration between for instance areas such as the internal
market and environmental policies, and areas such as social
policy and health which are primarily national. The Treaty
itself also uses words which are less ambitious as regards public
health or education. In these policy areas the role of the EU is
to ‘coordinate’ and ‘encourage’ rather than integrate.

(13) For example, the Commission's XXIst Report on Monitoring the
Application of Community Law, COM(2004) 839, 30.12.2004.
(14) See also: J. Vervaele, Compliance and Enforcement of European Com-
munity Law, The Hague, Kluwer Law International, 1999, Ph. Nico-
laides, From Graphite to Diamond: The Importance of Institutional Struc-
ture in Establishing Capacity for Effective and Credible Application of EU
Rules, European Institute of Public Administration, 2002 and refer-
ences cited therein.

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Consequently,

the current developments provide a
2.9
picture of a colourful diversity,
in which various legislative
instruments at EU level exist alongside each other, in their turn
affecting national approaches. Among these are the following:

— EU instruments providing for full harmonisation of legisla-

tion;

— EU instruments providing for minimum harmonisation,
enabling Member States to adopt stricter rules (which in a
cross-border context can be applied only subject
to a
mutual recognition test);

— ‘new approach’ directives, aiming at establishing essential
requirements that must be met by products in the EU
market;

— EU legislation based on a ‘country of origin’ principle;

2.13
elements which have effects on the final outcome include:

the Commission, some specific compelling

As for

— imprecise use of technical and legal

language (including

translation problems) when legislation is drawn up;

— varying degrees of using more or less binding legal instru-

ments, as a consequence of decisions by the Council;

— varying degrees of

in implementation and
enforcement within the Commission; there are important
differences between the DGs;

involvement

— sometimes a lack of clarity about the prerogatives of the
Member States and/or the prerogatives of the Commission
because of the impact of subsidiarity;

— sometimes a lack of sufficient personnel in the Commis-

— framework directives,

leaving considerable discretion to

sion;

Member States as regards implementation;

— recommendations which can be translated into Member

States' law;

— decisions.

— linguistic problems (in carrying out surveillance in the new

Member States);

— significance and impact of infringement procedures.

2.10
This broad set of Community-based instruments that
require transposition, implementation and enforcement in the
Member States often gives cause to national and thus different
interpretations of what is to be implemented and enforced at
national level and how this is to be done.

Together with the growth in Community legislation
2.14
there has been a corresponding increase in non-legal
instru-
ments and processes whose aim is to induce Member States to
implement EU law in a timely and correct manner, such as the
regular reports and Scoreboards on the transposition record of
Member States.

The practical

2.11
impact of the model as it operates at
present takes into account in varying degrees the following
elements as far as the Member States are concerned:

— different national legal cultures and systems;

— diverging responsibilities within national administrations

and within ministries;

— specific regional and local competences in the Member

States;

— influence of national

lobbies — political, socio-economic

and societal;

— domestic needs/desirabilities,

leading to gold-plating and

cherry picking;

— financial
correctly.

and organisational

resources

to implement

The EU approach, of course, respects the diversity of
2.12
Member States and their rich administrative traditions,
legal
cultures and political systems. This is even a question of prin-
ciple. However, the varying traditions and cultures must be
able to guarantee effective application of EU legislation so that
distortions or discrimination are avoided. The extension of
competences of the Union and the ongoing enlargement under-
line the complexity of this task.

2.15
In addition, the Commission has undertaken several
actions to inform citizens and business of their rights and
encourage them to exercise those rights before national autho-
rities and in national courts. For example, the contact points
for citizens and businesses and SOLVIT Centres aim to identify
and resolve difficulties experienced by persons and companies
that move to or operate in Member States other than their
own.

2.16
The latest report on the cases dealt with by SOLVIT
Centres shows that over 50 % of all problems concern recogni-
tion of professional qualifications, market access for products,
motor vehicle registration and residence permits. Although
80 % of cases are resolved successfully, these statistics also indi-
cate that the problems are not new or novel. Citizens and
companies experience difficulties largely because of bureau-
cratic procedures and the unwillingness of national administra-
tions to streamline their requirements. Moreover, despite the
success of SOLVIT Centres, 20 % of the problems are not
solved. The Member States should act in such a way that this
percentage goes down and that the national SOLVIT offices
and the European SOLVIT network become better known to
the public — businesses and citizens alike.

The enlargement of the Union is also a challenge.
2.17
Increase in membership cannot be managed without a corre-
sponding strengthening of consultation and surveillance proce-
dures.

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2.18
This strengthening of consultation and surveillance
procedures has been most evident in the most recent enlarge-
ment and in the parameters agreed at the Brussels European
Council of December 2004 concerning the forthcoming enlar-
gements. Prospective Member States will be subject to closer
scrutiny by the Commission and will be expected to have
implemented a larger proportion of the acquis communautaire
before they enter the EU. They will also be expected to
complete more quickly any transitional arrangements they may
be granted.

3. Need for reflection

3.1
Effective implementation and enforcement are of crucial
importance to citizens and companies. They are an integral
part of the rule of law. The often diverging interpretations of
commonly adopted legislation raise questions among busi-
nesses and citizens, such as: where to go to complain? Who is
in charge? what to do in the short term? More fundamental is
the question: to what extent does ineffective implementation
lead to delay or change of investment patterns and to lack of
trust among citizens? These questions have to do with legiti-
macy, coherence and predictability of EU policies. Continuation
of the present unsatisfactory pace of transposition and imple-
mentation can no longer be tolerated.

3.2
The great complexity and the confusing developments
in carrying out correctly approved directives at EU level
demand an overall SWOT-analysis of the system as it functions:
Where do we stand? What about the causes of the problems?
What challenges are Member States facing? What are the
Member States aiming at: what is the desirable relation and
interaction between subsidiarity and EU monitoring? In other
words: who is in charge of measuring what, and what are the
criteria? To what extent do the legal
instruments and the
current practices correspond with the objectives of European
integration? How are the EU and the Member States going to
respond to the complaints of companies and citizens about the
incomplete and sometimes counter-productive way of trans-
posing, implementing and enforcing EU rules in national regu-
lations and practices?

3.3
In addition to discussions on improvements in Member
States, these intriguing questions have to be put to endorse a
broad and open debate between policy makers and officials as
well as the private sector and civil society on desirable adapta-
tions in procedures and practices in the EU and in the Member
States. It must raise awareness about the impact of correct
transposition, implementation and enforcement for all agreed
EU policies.

3.4
It is necessary to reflect on the impact that future enlar-
gements will have on the coherence and uniform application of
Community law across the EU. The EU should also consider
how to avoid a situation whereby a Union of 27 or more
Member States with ever greater diversity may itself lead to
certain barriers to trade, investment and establishment.

3.5
There are various views on the problem of solving
misapplication of EU law which, from a political perspective, is
related to tensions between subsidiarity and a Community
approach. There is the view that, while fully accepting the
responsibility of Member States to implement EU law,
the
Commission should keep a close eye on it. A second approach
is based on subsidiarity: give free room to the Member States
and let everybody deal with their own problems. A third possi-
bility is that Member States take greater ownership and more
responsibility, with Member States holding each other
to
account and the Commission keeping a close eye on compli-
ance, and assertively using its legal powers, when necessary.

3.6
As the guardian of the Treaties and as the initiator of
legislation, the Commission plays an important role in ensuring
the proper functioning of the internal market. It has a responsi-
bility to propose simple and enforceable legislation that reme-
dies problems in the internal market without imposing exces-
sive costs on the Member States and businesses. Indeed the
Commission has made serious efforts during the past couple of
years to simplify legislation and to measure the impact of
proposed legislation. At the same time, the Commission needs
to act quickly and resolutely to end infringements. The
Commission should consider how to expand the recommenda-
tions it made in 2004 (see above) on timely and correct trans-
position to also cover the stage of implementation and enforce-
ment.

3.7
As co-owners of the Union, Member States have a duty
to act loyally towards the Union, fulfil their obligations, facili-
tate the achievement of the tasks of the Community and refrain
from jeopardising the objectives of Article 10 of the EC Treaty.
To be clear: the attitude of the Member States has to reflect
that they themselves are the European Union, and that they
invest accordingly in the Union's decisions (15).

The European Court of

3.8
Justice has clearly ruled in
numerous cases that Member States may not plead in their
defence the existence of any internal administrative difficulties
in order to justify incomplete or improper implementation of
Community legislation. These rulings may help to improve
proceedings to be foreseen for the future.

3.9
It will also be necessary to reflect on the kind of legal
and non-legal instruments and procedures that will be the most
appropriate in guaranteeing effective policy implementation in
a Union with more than 30 members.

3.10
The results from the use of non-legal instruments and
procedures have been rather mixed. Despite its promising start,
the open method of coordination does not appear to have been
successful. By contrast, SOLVIT Centres have resolved 80 % of
the problems they have had to deal with.

(15) An analysis of the negative outcome of the referenda in France and
The Netherlands shows to what deceiving extent public opinion
and some politicians (!) still qualify the relationship between a
Member State and ‘Brussels’ in terms of ‘we’ and ‘they’.

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The Competitiveness Council,

in its March 2005
3.11
Conclusions,
invited the Member States to screen domestic
legislation for compatibility with EU rules in order to remove
market barriers and open up competition. The European Parlia-
ment has also recognised the merits of having national admin-
istrations monitor compliance with EU rules in their countries.
Screening is a practical way to identify, and remove, barriers to
trade, whether they stem from incorrect implementation, a lack
of proper enforcement of EU law, or simply an administrative
practice that is not in line with EU requirements.

4. Conclusions and recommendations

4.1 General

4.1.1
The EESC considers implementation and enforcement
of legislation to be inextricable elements of better lawmaking,
and therefore a political priority (16). This is as yet not the case,
notwithstanding a changing approach in some Member States
and within the Commission that paves the way to the future.
the
Legislators have often insufficiently taken into account
implementation and enforcement
requirements. Consistent
impact assessments for better lawmaking have also to take into
consideration how legislation should be developed and how it
has to be enforced. The whole process is a prerequisite for a
level playing field and for the legitimacy of the EU.

it

As a matter of principle,

4.1.2
falls primarily to the
Member States to ensure proper implementation and enforce-
ment of EU law. The Commission's role, as guardian of the
Treaties, is to make sure that Member States actually fulfil their
responsibilities. Any shortcoming can be addressed by the
Commission through infringement procedures or other means
deemed appropriate to solve a problem of misapplication of EU
law.

4.1.3
As a consequence of the Interinstitutional Agreement
of 2003 the Council is currently deliberating better regulation
and legislative simplification. The EESC considers that sufficient
attention should be given to improved application of all EU
rules, not just directives, to be enforced by Member States.

4.1.4
The EESC considers that the Competitiveness Council
with its commitment to the Internal market, core of the inte-
gration process, should be the natural partner of the Commis-
in discussing implementation and enforce-
sion at EU level,
ment.

A very important and often decisive aspect is that the
4.1.5
domestic administrative arrangements of the Member States are
outside the scope of the Treaties. Nonetheless, it follows from
Article 10 of the EC Treaty and the case law that national
authorities must ensure a proper implementation and enforce-

ment. In this respect the EESC stresses the co-ownership of the
Member States of the EU and, of course, their co-responsibility.

4.1.6
For too long the emphasis has laid on introducing
new EU regulation. The EESC agrees with the Commission that
in an EU of 25 Member States the focus ought to be on imple-
mentation and enforcement of existing legislation rather than
on adding new regulation. New Community legislation will not
be an attractive option because it will require considerable
investment in time and resources. Similarly, exclusive reliance
on legal proceedings
to remedy
problems will also take much time and will absorb scarce
resources. What
is a change of culture,
whereby the focus within the Member States and in the
Commission shifts from new regulation to implementation and
enforcement, thus ensuring that agreed EU law and policy
attains its full effect. This is not to say, of course, that the
emphasis on implementation and enforcement can serve as an
alibi for not legislating in areas in which new legislation is still
required.

to force Member States

is needed, rather,

4.1.7
Screening of existing and already implemented EU law
— see also experience in Denmark — will be helpful in the
process of better lawmaking. This is an illustrative example of
the interaction between simplification and improving imple-
mentation and enforcement.

As regards alternatives, i.e. self-regulation and co-regu-
4.1.8
lation (17), there has to be a case-by-case examination of where
these would work and where they would not. Notwithstanding
the need to encourage self-regulation and co-regulation initia-
tives, their viability must be tested in the process of concrete
application.

4.1.9
In the EESC's view it is also obvious that the increasing
difficulties with implementation and enforcement processes at
national level have to be addressed and resolved through closer
cooperation between national and Community authorities.

4.1.10
The EESC considers that such an intensified coopera-
tion also serves the objective of avoiding superfluous Com-
munity legislation which is unlikely to be the right course of
action towards national implementation procedures. These are
too slow and cumbersome and often seek to apply national
policy objectives through disproportional means.

4.2 Member States

that Member States

The EESC considers

4.2.1
should
continue to enjoy discretion in determining their own imple-
mentation methods and procedures. These methods and proce-
dures could also be addressed by the Member States and the
Commission in their impact assessments.

(16) This consideration is perfectly in line with remarks in EESC's
Opinions since 2000 on updating, simplifying and improving the
acquis communautaire and the regulatory environment.

(17) ‘The Current State of Co-Regulation and Self-Regulation in the

Single Market’, rapporteur Mr Vever, CESE 1182/2004.

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In the view of

the EESC and irrespective of

4.2.2
the
methods or procedures Member States choose to implement
EU law or national
law that affects the functioning of the
internal market, the results must be similar across the EU.
Moreover, the results must give real effect to EU primary and
secondary law.

4.2.3 When speaking about Member States, the EESC view
is that involvement is also required of sub-national authorities
with autonomous
implementing
legislative powers and/or
responsibilities (e.g. Länder, provinces, regions).

4.2.4
The EESC considers that the next step in the coopera-
tion between EU institutions and national authorities in the
implementation of EU law and policies is strengthening or
streamlining of national administrative capacity for policy
application, as is currently being discussed in some Member
States.

Administrative capacity is a matter of

‘common
4.2.5
concern’ and Member States must make clear that
imple-
menting and enforcing authorities possess such capacity at
high level. For the EESC this implies amongst other things a
close cooperation between the negotiators in Brussels and the
legislative bodies within the national administrations.

4.2.6
One specific approach which the EESC has noted is
the practice of national regulators in certain areas such as tele-
communications. National regulators respect at the same time
common European rules and national surveillance. These prac-
tices have also to be scrutinised.

4.2.7 Member States are to be stimulated to screen domestic
rules and procedures
such as
Denmark, are presently doing). Implementation problems often
arise because national rules and procedures are not sufficiently
attuned to the large European market.

some Member States,

(as

governments and the Commission. More interaction and flex-
ibility are required. The impact of multilateral discussions in
groups of national experts which are already taking place in
view of transposition and implementation should be reinforced.
Systematic and deliberate discussion between all relevant autho-
rities across the EU in any given policy field is needed on the
results that are achieved and on the experience of Member
States. Ex-post evaluations are desirable.

4.2.11
In bilateral contacts between Member States, consid-
eration should be given to exchange of officials along the lines
‘twinning projects’ that greatly assist new
of the successful
Member States and candidate countries.

Ex-post evaluation of directives and applied EU law
4.2.12
has to be carried out systematically. As consultation is crucial
for better lawmaking, similar procedures have to be foreseen
for the process of ex-post evaluation (18). The original legislative
bodies should not be responsible for such evaluations, which
may also include the future need and relevance of certain rules.

4.2.13
lead to
The EESC considers that discussions will
systematic identification of best practices that can be adopted
by authorities across the EU. Where legal or administrative
differences between Member States prevent adoption of identi-
fied best practices, national authorities should have to demon-
strate how their own method or procedure leads to similar
results as in other Member States with best practices. One such
good practice pursued in some Member States consists in a
'priority rule'. As a basic working principle, the transposition of
EU legislation has priority over the implementation of legisla-
tion of a national nature.

4.2.14
National authorities are normally accountable to
governments or ministers and eventually to parliament. Since
the mis- or non-implementation of EU law also adversely
affects the interests of the citizens and businesses in other
Member States, the EESC considers that the EU may have to
develop a new concept of reciprocal responsibility towards
counterpart authorities in other Member States (19).

4.2.8
A particular way of implementing EU law is gold-
plating and cherry picking. The EESC considers that a general
rule could be introduced whereby Member States, in notifying
national implementing measures, justify formally with transpo-
sition tables to the Commission that these are in complete and
full conformity with Community law.

4.2.15 Member State authorities must explain to their coun-
formal decisions and
terparts their administrative practices,
other actions related to the implementation and enforcement of
EU law, when such practices, decisions and actions are
perceived by counterpart authorities in other Member States as
preventing the smooth functioning of the internal market.

information about

It may be desirable that Member States provide more
4.2.9
and better
rights and obligations both
within their own administrations and to the general public.
Lack of adequate information is often a reason for non-compli-
ance. The EESC considers that national sanctions for non-
compliance by citizens or companies might be considered.

4.2.10
At the moment, consultations on transposition and
application are essentially limited to bilateral contacts between

4.2.16
For the EESC it is important that Member States
regularly review the capacity of their implementing and enfor-
cing authorities and the compatibility of domestic rules and
regulations as well as administrative practices with the require-
ments of EU law.

(18) The outcome of

the EESC questionnaire – see Appendix B –
contains examples that stress the need for such ex post evaluations.
(19) The UK government has recently established a Panel for Regulatory
Accountability. This panel may also contain useful elements for the
EU level.

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In the process of

4.2.17
further enlargement, candidate
countries must have transposed the whole of the Community
‘acquis’. For the EESC it is desirable that they have adequate
it
their disposal
administrative capacity at
correctly before they are able to join the EU.

to implement

implementation and enforcement

The EESC considers that Member States must be
4.2.18
prepared to devote greater human and financial resources to
promote
seriously. The
Committee points
striking contrast between the
resources devoted to the open method of coordination (offi-
cials, meetings, documents) and the difficulties in terms of
finances and manpower in many Member States in supporting
an important network such as SOLVIT. A positive exception in
this respect is for instance Sweden.

to the

4.2.19
There must be particular focus on the operation of
the courts, which are specifically responsible for interpreting
and directly implementing Community legislation (regulations)
and the legislation resulting from its transposition (directives).
Substantial difficulties have been encountered in standardising
interpretation of
these instruments and implementing them
rapidly in practical cases. There is therefore a particular need
for judges and lawyers to receive training in Community law,
especially in the fields of competition, health and consumer
protection.

4.3 Commission

4.3.1
The EESC considers that the Commission, apart from
its efforts to get better lawmaking within its own services on
the right
track, also has a role in promoting confidence
between enforcement authorities in supporting the networks of
national authorities, the systematic assessment of their perfor-
mance and the identification and spread of best practices. It
can contribute through particular tools, such as information
systems,
to facilitate day-to-day administrative cooperation
between officials. In this respect the ‘Internal market Advisory
Committee’ presents a useful platform to the Commission and
the Member States. The same goes for an information service
on the Internal Market that is planned by the Commission in
order to promote cooperation between the Member States.

4.3.2
In addition to the instruments that the Commission
has identified in its Communication on Better Monitoring of the
Application of Community Law (20) for preventing infringements,
the EESC's view is that it is also important to develop further
cooperation between national authorities. The Commission can
be helpful in reviewing national practices — even when these
have not given rise to formal infringement proceedings — by
facilitating problem-solving and by promoting best application
practices between Member States.

the Commission be
4.3.3
invited to conduct audits of enforcement structures in the

The EESC recommends

that

(20) COM(2002)725 final, 11.12.2002.

Member States — possibly relying on a neutral partner — and
to report regularly on implementation and enforcement in the
form of Scoreboards.

4.3.4
EU-funded training programmes based on national
studies and experiences, bringing together practitioners from
across Europe, need to be stimulated. The recent Commission-
sponsored training of judges in the field of competition has
yielded positive results. Such training programmes for judges in
the lower and regional courts as well as for public administra-
tions must be extended to all relevant fields, as required knowl-
edge is still often lacking. Attention could also be given to the
role of the Ombudsmen.

4.3.5
The Commission should actively look for alternatives
to formal legal action, which often tends to be too slow for the
complainant. 50 % of the infringement procedures last more
than four years! Alternatives include package meetings and
instruments such as SOLVIT. The Commission might consider
making the outcome of package meetings public.

The preoccupation should be to identify the most
4.3.6
appropriate measure to achieve the policy outcome desired. In
specific cases and to serve reliable outcomes in the Member
States, the Commission might consider presenting proposals
for a regulation instead of proposals for a directive. More
generally, the Commission should take into account problems
that may arise from diverse national implementing procedures.

4.3.7
In the Committee's view, the Commission must be
equipped with the necessary competences and resources to
carry out its traditional task of overseeing implementation of
EU law and its new tasks of facilitating the identification and
spread of best practices. The EESC welcomes the internal audit
the Commission intends to carry out in 2006 in order to assess
its existing procedures and working methods in this field.

The Commission should be encouraged to streamline
4.3.8
its surveillance efforts of
implementation and enforcement.
This may require more resources within the Commission as
well. In this respect a greater coherence between the approach
of the different DGs is needed.

4.4 Good governance and society

4.4.1
For the EESC, reporting, consulting and surveillance of
implementation and enforcement must not be limited to
administrations and officials. The European Parliament and also
the national Parliaments should be committed to the same
processes. The EESC welcomes the initiative, recently taken by
the European Parliament, to put implementation and enforce-
ment on its agenda. This initiative will certainly contribute to
raise badly needed political attention for this subject.

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4.4.3
Because of the complexity of these processes good
governance implies explaining across the whole of Europe that,
notwithstanding ‘subsidiarity’ and specific administrative tradi-
tions, governments are bound to carry out what they have
agreed upon at EU level. This means also that besides the
Commission and the Member States,
input from the private
sector and civil society is most welcome to promote improve-
ment and best practices.

4.4.4
In the EESC's view, a well balanced publicity is
required as soon as the Commission and the Member States
have developed concrete ideas about presenting implementa-
tion and enforcement as an integral part of better lawmaking.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

As part of

the better governance initiative,

4.4.2
the
Commission undertook to consult widely (21). The same was
expected from the Member States. Certain secondary legislation
such as regulations on competition or directives on telecommu-
nications requires that national authorities consult interested
parties before they adopt any measures. Some Member States
have a tradition of public inquiries as a means of supporting
their policy formulation and assessment. Most Member States
carry out some form of impact assessment concerning financial
or environmental effects. Impact assessment has both a consul-
tation stage and an evaluation component. In the EESC's view,
such consultations and evaluations, which in essence identify
the needs of citizens and businesses and then the policy effects
on them, improve understanding of policies, strengthen their
legitimacy and prepare the ground for policy improvements.

Brussels, 28 September 2005

(21) See COM(2002) 713 final, 11.12.2002.

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APPENDIX

to the opinion of the European Economic and Social Committee

The following amendments, which received at least a quarter of the votes cast, were rejected in the course of the debate:

Point 1.2

Amend as follows:

‘The EU is based on the rule of law. It strengthens the foundations of the internal market and prevents any discrimi-
nation on the basis of origin or nationality of products, persons or companies. Effective application of EU law
under strict compliance with existing social, consumer and environmental protection standards boosts public confi-
dence in European policies and processes and makes the EU more relevant to the concerns of citizens and busi-
nesses. This implies however a timely and correct transposition of EU law at national level.’

Reason

Only an internal market governed by the above principles will ensure the desired outcome for the majority of the popu-
lation. Recent referendums (on the EU treaty in France and the Netherlands) and surveys (Eurobarometer) have shown
that people clearly want policies that they can broadly identify with.

Voting:

For: 43

Against: 45

Abstentions: 7

Point 2.1

Amend as follows:

‘2.1 While the EC Treaty provides for a variety of approximation and harmonisation measures to complete the
internal market (1), experience in the 1970s and early 1980s has shown that complete harmonisation is a slow,
cumbersome and unnecessary process. Measures based on mutual recognition and home-country control have,
in some cases, been easier to negotiate and implement,. They have also been more effective in freeing up trade
and investment without imposing an excessive compliance burden. but the universal application of the
country-of-origin principle requires first of all that the proper conditions be put in place for that purpose by
pursuing a differentiated approach in each individual sector, with priority given to the harmonisation of
employment, consumer protection and environmental standards at a high level. This is the only way to ensure
that the internal market as a whole — when completed — is of an appropriate standard, and also reflects the
call made by the EESC in its February 2005 opinion on the services directive (2). However, iIt also has to be
noted that the EU has entered a new stage that is characterised by increasing differences in governmental
cultures. This may lead to a renewed desirability of regulations in order to attain convergence and the promo-
tion of good practices.’

Reason

After the long discussion when drawing up the opinion on the services directive, which eventually resulted in the above
consensus, it would be inappropriate to query the harmonisation of provisions in relation to this one. Incorporating the
results of that discussion here not only improves consistency between the EESC opinions, but is also a useful factual
addition to the current theme of harmonisation.

(1) Articles 94-97 of the EC Treaty
(2) CESE 137/2005.

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Voting:

For: 44

Against: 48

Abstentions: 9

The following text of the section opinion was rejected in favour of an amendment but received at least a quarter of the
votes cast.

Point 1.1

‘1.1 A well-functioning internal market is at the core of European integration. It legitimises integration by gener-

ating significant benefits for citizens and businesses.’

Voting:

For: 38

Against: 44

Abstentions: 10