European Parliament resolution on the Commission's 21st and 22nd Annual reports on monitoring the application of Community law (2003 and 2004) (2005/2150(INI))
Date: 2006-05-16
Institutions: Committee on Legal Affairs, European Parliament
Subjects: EU control, activity report, application of EU law, national implementing measure

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TEXT PROPOSED
BY THE COMMISSION

AMENDMENTS
BY PARLIAMENT

Amendment 12

Article 3f (new)

Article 3f

the Joint Committee
The meetings and proceedings of
provided for in Article 10 of the Agreement may be attended
by a Member of the European Parliament in an observer
capacity, and also by representatives of the fisheries sector
operating under the Agreement.

Amendment 13

Article 3g (new)

Article 3g

The Commission shall inform the European Parliament of
any initiative to amend the substance of the Agreement,
including the Protocol, the datasheets and the appendices.

P6_TA(2006)0202

Monitoring the application of Community law (2003-2004)

European Parliament resolution on the Commission's 21st and 22nd Annual reports on monitoring
the application of Community law (2003 and 2004) (2005/2150(INI))

The European Parliament,

— having regard to the Commission's 21st

and 22nd annual

reports

(COM(2004)0839 and

COM(2005)0570),

— having regard to the Commission's staff working papers (SEC(2004)1638 and SEC(2005)1446 and

1447),

— having regard to Rules 45 and 112(2) of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on

Petitions (A6-0089/2006),

A. whereas the Commission's annual reports establish the state of

transposition of directives by the
Member States in order to ensure that the application of legislation is efficiently monitored; whereas
according to the 21st report, 3 927 infringement cases were ongoing on 31 December 2003, including
1 855 cases for which proceedings had commenced, 999 cases for which a reasoned opinion had been
issued, 411 cases which had been referred to the Court of Justice and only 69 cases (of which 40
concerned the environmental sector) for which proceedings under Article 228 of the EC Treaty had
begun,

B. whereas proper monitoring of the application of Community law involves not merely assessing transpo-
sition in quantitative terms but also evaluating the quality of transposition and of the practices adopted
in actually applying Community law,

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C. whereas correct and swift implementation of Community legislation is an integral and essential part of
‘better regulation’; whereas clear and well-written legislation is an indispensable condition for the good
application of Community law throughout the European Union; whereas the quality of legislation and
the clarity of the obligations incumbent on Member States are not always satisfactory owing to the fact
that the legislation is often the result of difficult political compromises,

Tuesday, 16 May 2006

D. whereas the Commission may adapt the means it uses to carry out its mission effectively and make inno-

vations designed to improve the application of Community law,

E. whereas the Commission is currently working on the adaptation of existing procedures and on ways of
making them faster and more efficient; whereas, however, this is not a sufficient reason for failing to
transmit on time the information requested as to the total resources allocated to infringements in the
relevant Directorates-General and the General Secretariat,

F. whereas the number of complaints relating to infringements of Community law shows that European
citizens play a vital role in its application, and that the capability properly to address their concerns is
important for the credibility of the European Union,

G. whereas citizens' complaints are not merely symbolic in building a ‘people's Europe’ but constitute a

cost-effective and efficient tool for monitoring the application of Community law,

H. whereas effective legal protection and uniform application and interpretation are essential elements of

Community law,

I. whereas Parliament received the Commission's 22nd annual report only in January 2006 and whereas,
because of this consistent delay, only partial reference to that report is made in the present resolution,
the core analysis being of the Commission's 21st annual report dealing with the application of Com-
munity law in 2003,

1.
Is convinced of the real need for all European institutions to give serious, visible consideration and
more convinced priority to the question of monitoring implementation, especially in view of the emphasis
which has latterly been placed on the urgency of reducing the amount of Community legislation and legisla-
tive initiatives;

2.
Insists that any reduction in the amount of legislation must be off-set by more emphasis on implemen-
tation; stresses that complaints are a cost-effective and efficient tool for monitoring the application of Com-
munity law and calls on the Commission to make sure that at least some of the resources previously allo-
cated to the drafting and follow-up of legislation are dedicated to the effective and correct implementation
of existing Community legislation in the various units dealing with individual complaints and infringement
cases;

3.
Is convinced that Parliament's committees should also pay attention to the issue of the application of
Community legislation, and in particular that the rapporteur responsible should play a more active role in
monitoring the implementation of Community legislation in the Member States, whereby the regular
sessions on implementation organised by the Committee for the Environment, Public Health and Food
Safety can serve as an example;

4. Understands that comitology is not the subject of this resolution and maintains that the matter accord-
ingly needs to be dealt with in a separate resolution;

5.
Stresses that Article 211 of the EC Treaty assigns to the Commission institutional responsibility for
ensuring the application of the provisions of the Treaty and of the measures taken by the institutions
pursuant thereto, and that Article 226 of the EC Treaty empowers the Commission to take action against
Member States for any failure to fulfil their obligations under the Treaty;

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6. Notes that the main problems with the infringement procedure (Articles 226 and 228 of the EC Treaty)
are its length (54 months elapsing on average from registration of the complaint to referral to the Court)
and the limited use of Article 228;

7. Notes that the Commission organises four meetings a year to decide on infringement procedures and
that all decisions (from the first letter of formal notice, aimed at obtaining information from the Member
State concerned, to the decision to seise the Court of Justice) are taken by the College of Commissioners;
whilst appreciating the relevance of, and the need for, collective intervention for the infringement phases,
proposes that careful thought be given to the possibility of the internal procedure being shortened in the
initial stage of proceedings by authorising each Member of the Commission to send letters of formal notice
to the Member States within the field of his or her responsibility, as is already the practice in cases where a
Member State has not transposed Community law into its national legislation within the set deadline;

8. Notes the insufficient level of cooperation by the national courts in most Member States, which are still
reluctant to apply the principle of the primacy of Community law;

9. Welcomes the Commission's Communication entitled ‘Better Monitoring of the application of Com-
munity law’ (COM(2002)0725), which sets out various actions to achieve its aim;

10. Regrets nevertheless that the Commission has not presented any structured, detailed follow-up to
some of the commitments announced in the above-mentioned Communications, such as the commitment
that ‘the application of the priority criteria will be assessed annually, when the report on the monitoring of
the application of Community law is discussed’;

11. Calls on the Commission to conduct a specific evaluation of the application of the priority criteria
listed in the above-mentioned Communication, with the aim of assessing whether such an exercise is really
needed and whether it may not risk reducing excessively the scope of infringement procedures, for which
the Treaty does not provide any hierarchy; calls on the Commission to assess whether a simple increase in
the available resources in the most exposed Directorates-General would not be a preferable solution with a
view to improving the capacity to follow up complaints; points out that legal experts are needed in the
Commission departments responsible for transposition to analyse whether legislation has been transposed
in all its complexity; notes that it is not possible to rely solely on an automatic concordance system in order
to analyse transpositions;

12. Calls on the Commission to keep Parliament informed of the results of such evaluations; insists that
the definition of priorities should not lead to a decreased response to citizens' complaints and urges the
Commission to consult Parliament on any possible change in the priority criteria;

13. Calls on the Commission to place the principle of the rule of law and citizens' experience above
purely economic criteria and evaluations; urges the Commission to monitor carefully the respect of the
fundamental freedoms and general principles of the Treaty as well as the respect of regulations and frame-
work directives; invites the Commission to use secondary legislation as a criterion for determining whether
there has been an infringement of fundamental freedoms;

14. Urges the Commission to re-evaluate cooperation with the Member States within the meaning of
Article 10 of the EC Treaty, in light of the fact that most Member States are not prepared to do much to
improve the implementation of Community law as was confirmed during the negotiations on the Interinsti-
tutional Agreement of 16 December 2003 on better law-making (1), when the Council refused to make any
commitment in matters concerning transposition and implementation; declares its support for re-opening
negotiations with the Council on this issue, with a view to amending the Interinstitutional Agreement;

15. Calls on the Commission seriously to reassess its indulgence of Member States when it comes to
meeting deadlines for submitting requested information to the Commission, adopting and communicating
national implementing measures and correctly applying Community legislation at national, regional and
local levels;

(1) OJ C 321, 31.12.2003, p. 1.

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16. Notes that the Member States have decided to set up specific structures dealing with implementation;
welcomes the Commission's efforts in supporting the setting-up of appropriate coordination points in each
Member State, with the aim of improving the entire transposition and implementation policy and the effi-
ciency of the pre-litigation stage of infringement proceedings; suggests that the Member States should not
only establish technical structures but also appoint political figure(s) responsible at national level for infrin-
gement policy;

Tuesday, 16 May 2006

Points out that emphasis on organisational issues and communication flows should not hide the fact
17.
that many cases of incorrect implementation are the result of poor-quality legislation and reflect Member
States' deliberate efforts to undermine Community legislation for political, administrative and economic
reasons; in this connection, notes that the Commission is in the habit of accepting late intervention by the
Member States in order to close infringement proceedings; calls on the Commission to ask the Member
States to guarantee retroactive application of the Community provisions which have been infringed, in order
to remove all effects of the infringement, with an immediate recourse to Article 228 of the EC Treaty in the
event of persistent failure to comply;

18. Notes that the Internal Market Problem Solving System (SOLVIT network) has proved its effectiveness
in the internal market as a complementary non-judicial mechanism which has increased voluntary coopera-
tion among Member States, but considers that such mechanisms should not be regarded as a substitute for
infringement proceedings which are designed to oblige the Member States to apply Community legislation;
calls on the Member States to make allocate greater human and financial resources to their national contact
points for the SOLVIT network;

19. Considers it essential for legislation to be drafted in a way that is more enforcement-friendly; considers
it equally important to improve citizens' understanding of Community legislation and therefore proposes
that a citizen's summary be included in the form of a non-legalistic explanatory statement accompanying all
legislative acts;

20.
Is convinced that, while it is important to devote time and effort to developing dialogue with Member
States and improving the assistance afforded to them in order to facilitate swift, correct transposition of
Community legislation, tighter discipline is necessary, notably after enlargement, in order to avoid excessive
delays and persistent differences in the quality of national transposition;

Believes that a specific clause obliging Member States to draft a concordance table when transposing

21.
directives should be inserted systematically into each newly adopted directive;

22. Notes that in 2004 about 41 % of new directives included provision for a concordance table; believes
that the European Parliament, as co-legislator, should support proposals to introduce into directives provi-
sions obliging the Member States to use the concordance table for notification; calls on the Commission to
report to Parliament regularly on the application of such provisions;

23. Welcomes the effort made by some Directorates-General of the Commission — and notably DG Envir-
onment — to improve the conformity checks on the relevant directives, in particular following enlargement;
calls on the Commission to publish on its website the studies requested by the various Directorates-General
on the evaluation of the conformity of national implementation measures with Community legislation;

24. Notes that there are several procedures available for dealing with non-conformity and that such proce-
dures are sometimes repeated without attaining the objective of persuading the Member States to modify
their transposition acts; stresses that in such cases delays in the procedure can be highly detrimental to citi-
zens, because the focus is not on individual cases but rather reflects a general problem; therefore calls on
the Commission to take a tough stance on cases of non-communication and non-conformity of national
implementing measures with Community legislation and to move through the various stages of the proce-
dure laid down by Article 226 of the EC Treaty in accordance with fixed, non-negotiable time-limits, laid
in order to arrive as soon as
down in appropriate soft-law instruments (communications, guidelines),
possible at the imposition of fines pursuant to Article 228 of the EC Treaty;

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25.
Invites the Commission to present a list of those directives which have the worst record in terms of
their implementation and to explain what it considers the underlying reasons for this to be; points out that,
under the case-law of the Court of Justice and Article 10 of the EC Treaty, the Member States are required
to ensure that an adequate system is in place for effective and proportionate sanctions, to act as a deterrent
against infringement of Community provisions; considers that failure to adopt an effective system of sanc-
tions should be pursued with due severity under the infringement procedure;

26. Notes that the present procedures give citizens no rights beyond lodging a complaint and that the
Commission,
in its role as guardian of the Treaty, has a broad discretion as to whether to register a
complaint and start proceedings; considers that there is nothing in the Treaty or the case-law of the Court
of Justice to prevent the use of appropriate legislative instruments to give further rights to complainants,
and therefore calls on the Commission to take steps to adopt such instruments; is convinced that this impor-
tant and exclusive prerogative should correspond to a duty of transparency and accountability as to the
reasons why decisions are taken, notably decisions not to pursue complaints;

the Commission's Communication to the European Parliament and the European
27. Welcomes
Ombudsman on ‘Relations with the complainant in respect of infringements of Community law’ (COM
(2002)0141);

28. Urges the Commission to respect the principles stated in that Communication to the effect that all
complaints likely to denounce a real violation of Community law that are received by the Commission
should be registered, without any selection, unless they fall within the exceptional circumstances referred to
in point 3 of the Annex to the Communication; notes that the European Ombudsman has recently received
specific complaints denouncing the non-registration of complaints and is currently investigating them; calls
on the Commission to submit a regular report to Parliament on cases of non-registration of complaints in
line with the above-mentioned Communication;

29. Notes that the time-limit of one year laid down in the Communication between the registration of a
complaint and the actual sending of a letter of formal notice or the decision to shelve the case is too long;
notes furthermore that this deadline is not always met, leaving the complainant in a state of unacceptable
uncertainty; therefore calls on the Commission to send letters of formal notice, which do not imply any
‘negotiations’ yet with the Member States, within a short period of the registration of the complaint and to
strive to move ahead quickly with the procedure on the basis of prompt deadlines from which exemption is
possible only in exceptional cases;

30. Urges all services of the Commission to keep complainants — and where appropriate also the MEP
involved — fully informed of the progress of their complaints at the expiry of each pre-defined deadline
(letter of formal notice, reasoned opinion, referral to the Court), to provide reasons for their decisions and
to communicate them in full detail to the complainant in accordance with the principles stated in its
Communication of 2002, which should allow the complainant to make further observations (such informa-
tion should include, notably in the cases in which the Commission envisages shelving the complaint, the
arguments presented by the Member State involved);

31. Calls on the Commission to adopt a specific procedure which would allow the complainant and the
MEP involved to have access to the documentation and to the substance of the correspondence exchanged
with the Member State;

32. Calls on the Commission to provide specific data on compliance with time-limits as set out in its
internal Manual of Operational Procedures, which could only be obtained informally; reiterates the impor-
tance of setting deadlines from the date of registration of a complaint for providing the complainant with
an answer and for sending out a letter of formal notice;

33. Notes that, since their inception, proceedings under Article 228 of the EC Treaty have led to judg-
ments of the Court of Justice in only three cases; welcomes the Commission's Communication on the Appli-
cation of Article 228 of the EC Treaty (SEC (2005)1658), which clarifies and develops the policy of the
Commission in asking the Court of Justice to impose a periodic payment order and a lump sum payment
order on a Member State which fails to comply with the judgment of the Court;

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34. Asks the Commission formally to specify that, in accordance with its Communication of 2005, all
cases already subject to letters of formal notice and reasoned opinions under Article 228, as well as cases
currently subject to Article 226 proceedings, will be subject to the new policy (if not resolved before referral
to the Court);

Tuesday, 16 May 2006

35. Recalls that petitions forwarded by individuals to the Commission, to the European Ombudsman and
to the relevant parliamentary committees should encourage the European Institutions to assess the way in
which Community law is being implemented at national and European level;

36. Reiterates its belief that close cooperation and monitoring arrangements between the Commission, the
Council, the European Ombudsman and the relevant parliamentary committees are essential in order to
ensure effective intervention in all cases where the petitioner has justifiably complained of an infringement
of Community law;

37.
Insists that, in its future annual reports, the Commission must present data that accurately reflect the
important and distinct contribution made by petitions to the monitoring of the application of Community
law, and reiterates the request made in its resolution of 9 March 2004 (1) for the inclusion of a chapter
devoted exclusively to petitions;

38. Considers it necessary for the procedural rights of petitioners to be defined in a similar way to the
rights of complainants, which were set out in the Commission's Communication of 2002; considers that
procedural questions related to the parallel treatment of complaints and petitions need to be clarified and
that coordination between the services concerned must be further improved so that the Committee on Peti-
tions can ensure that the rights of petitioners are respected;

39. Notes from its experience that it is difficult for citizens petitioning Parliament to invoke rights derived
from Community law before national courts and to obtain reparation for loss or damage sustained on
account of breaches of Community law by Member States;

40. Deplores the Commission's unwillingness to investigate alleged violations of Community law that lie
in the past and have since been remedied, such as those raised in the ‘Equitable Life’ and ‘Lloyd's of London’
petitions; urges the Commission to investigate such cases when the alleged failures are said to have caused
significant damage to individuals, since the outcome of such investigations could be immensely helpful to
citizens in obtaining compensation through the appropriate legal channels;

41. Considers it necessary to examine ways of improving procedures at an inter-institutional level in order
to provide more effective non-judicial means of redress for European citizens, as a corollary to the right of
petition contained in the Treaty; suggests in this regard that consideration might be given to the setting-up
of a ‘SOLVIT’-type organisation within the European Parliament whose function it would be to assist
Members with casework of a legal nature;

42. Calls for increased cooperation between national parliaments and the European Parliament and their
respective parliamentarians, so as to promote and increase effective scrutiny of European matters at national
level; considers that national parliaments have a valuable role to play in monitoring the application of Com-
munity law, thus helping to strengthen the democratic legitimacy of the Union and bring it closer to the citi-
zens;

43. Urges the Commission to send its annual reports on monitoring the application of Community law to
the national parliaments, so that they are better able to monitor such application by the national authorities;

Instructs its President to forward this resolution to the Council, the Commission, the Court of Justice,

44.
the European Ombudsman and the parliaments of the Member States.

(1) OJ C 102 E, 28.4.2004, p. 512.