Opinion of the European Economic and Social Committee on the Communication from the Commission A Europe of results — Applying Community law COM(2007) 502 final
Date: 2008-03-12
Institutions: European Economic and Social Committee
Subjects: EU control, EU legal system, European Union, application of EU law

9.8.2008

EN

Official Journal of the European Union

C 204/9

Opinion of the European Economic and Social Committee on the Communication from the
Commission A Europe of results — Applying Community law

COM(2007) 502 final

(2008/C 204/02)

On 5 September 2007 the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the

Communication from the Commission: A Europe of results — Applying Community law

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 February 2008. The rapporteur was Mr
Retureau.

At its 443rd plenary session, held on 12-13 March 2008 (meeting of 12 March), the European Economic
and Social Committee adopted the following opinion by 59 votes, nem. con. with two abstentions.

1. Introduction

In this connection it would like to make the following
comments:

1.1
In its Communication, the Commission states that out of
over 9 000 legislative measures, nearly 2 000 are directives
each requiring between 40 and 300 transposition measures.
Noting the large number of Europeans who could query their
rights under these laws,
in
pursuing the objective of Better Regulation, high priority must
be given to the application of law and to identifying why diffi-
culties in implementation and enforcement persist.

the Commission considers that

It therefore proposes to improve the present method of hand-
ling issues related to application and enforcement of Com-
munity law.

2. Identifying the problem

2.1 Most failures to apply or implement Community law
properly arise from failure to transpose directives. Transposition
can be defined as the process by which a Member State to
which a directive is addressed takes all the necessary measures
to incorporate it properly into its national legal system using
appropriate regulatory instruments.

To transpose a directive, Member States have to do two

2.2
things:

The Commission identifies four possible avenues for

1.2
improving application:

— firstly, incorporate all the legal content of the directive into

national law;

a) prevention: better

risk assessments
impact assessments,
included in Commission proposals, inclusion of a correlation
table in each proposal; training of national authorities in
Community law;

b) effective, appropriate reaction: improvement of information
exchange with businesses and the public and also with
national authorities, with the introduction of ‘package meet-
ings’ across the board playing a particularly important role
here;

c) better working methods: designation of a central contact
point in each Member State, responsible for liaising between
the relevant national authority and the Commission; more
efficient management of the infringement process, setting
priorities in particular;

d) strengthening dialogue and transparency: more effective
interinstitutional dialogue; publishing of general information
on the effectiveness of the ‘new approach’.

The EESC endorses

1.3
intention to
enhance the relevant instruments so as to ensure better applica-
tion of Community law by the Member States.

the Commission's

— secondly, repeal or amend all existing national rules which

are not in line with the directive.

The same applies to the inclusion of

the Framework
2.3
Decisions referred to in Article 34 of the Treaty on European
Union (TEU), which, like the directives referred to in Article 249
of
the Treaty establishing the European Community (TEC),
are‘binding upon the Member States as to the result to be achieved,
but leave to the national authorities the choice of form and methods’.

The transposition of Framework Decisions is equally
2.4
likely to give rise to difficulties. However,
in contrast to the
procedure for failure to take the necessary measures laid down
in Articles 226 and 228 TEC, the Treaty on European Union
does not provide for the Commission taking any such supervi-
sory action in the event of failure to transpose or incorrect
transposition. This does not, of course, make Member States'
obligation to transpose the Framework Decisions any less
binding.

It should be noted that

2.5
the Member States are still
finding it difficult to adapt their processes for drafting transposi-
tion provisions, which, although this may not be apparent, give
rise to complex legal constraints and at times upset domestic
law-making traditions.

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3. Outline of the transposition requirement and the diffi-

culties encountered by the Member States

3.1
The Member States have sole authority to decide in what
form directives should be transposed and to decide, under the
supervision of the national court, the ordinary courts applying
Community law, how best to give the directive effect in national
law. The Commission's obligation as guardian of the Treaties to
ensure proper implementation of the law and the smooth func-
tioning of the single market by bringing action against Member
States, when appropriate, using the range of measures available
to it (reasoned opinion, appeal to the ECJ, penalty payment),
should be stressed here. Lastly, delayed, incomplete or incorrect
transposition does not prevent affected citizens from invoking
the directive over national
the principle of
primacy of Community law.

law, by dint of

Thus, proper

3.2
transposition requires the adoption of
binding national rules, which must be published in an official
publication (1). The Court can thus censure mere references to
Community law masquerading as transposition (2).

3.3
It may be that the general principles of constitutional or
administrative law make transposition effected by adopting
specific laws or regulations superfluous, but these general prin-
ciples must still guarantee the full application of the directive.

Directives must therefore be transposed as faithfully as
3.4
possible. Directives harmonising national
laws must be trans-
posed as literally as possible in order to ensure respect for the
need for uniform interpretation and application of Community
law (3).

This seems simple in theory, yet in practice there are
3.5
instances where Community law concepts whose content
is
clear and precise (4) have no equivalent in national legal termi-
nology, or where this kind of concept does not include referral
to Member States' law to determine its meaning and scope (5).

There are also instances where the directive contains an
3.6
article to the effect that the national provisions transposing the
directive must make reference to the directive or be accompa-
nied by a reference of this kind when they are published. Ignor-
ance of this clause, known as the ‘interconnection clause’,
is
penalised by the Court, which refuses to provide for an excep-
tion where Member States plead that their existing domestic law
already complies with the directive (6).

(1) French Council of State study: ‘Pour une meilleure insertion des normes
communautaires dans le droit national’, adopted by the Council of State
general assembly on 22 February 2007, Documentation française,
Paris, 2007.

(2) ECJ, 20 March 1997, Commission of the European Communities v

Federal Republic of Germany, C 96/95, ECR p.1653.

(3) Rapporteur: Mr Van Iersel, OJ C24 of 31.1.2006.
(4) See, for example, ECJ, 26 June 2003, Commission of the European

Communities v French Republic, C 233/00, ECR p.I-6625.

(5) ECJ, 19 September 2000, Grand Duchy of Luxemburg v Berthe Linster,

Aloyse Linster and Yvonne Linster, C 287/98, ECR p.I-6917.

(6) Established case law, ECJ, 23 May 1985, Commission of the European
Communities v Federal Republic of Germany, 29/84, ECR p.1661, ECJ,
8 July 1987, Commission of the European Communities v Italian
Republic, 262/85, ECR p.3073, ECJ, 10 May 2001, Commission of the
European Communities v Kingdom of the Netherlands, C-144/99, ECR
p.I-3541.

The difficulty of

3.7
transposing directives correctly also
derives from the varying degree of latitude permitted in their
implementation. There are, in fact, two main types of provisions
laid down by directives:

— non-explicit provisions, which merely set

forth general
leaving Member States fairly extensive leeway in

goals,
choosing national transposition measures;

— prescriptive/explicit provisions, which require Member
States' transposition measures to comply with the provisions
of
the directive. These include definitions; prescriptive/
explicit provisions, which place specific obligations on the
Member States; annexes to directives, which may include
lists or tables detailing substances, objects or products; and
the European
specimen forms which apply throughout
Union.

In the case of non-explicit provisions, evaluation of the
3.8
full, faithful and effective nature of the transposition does not
relate to the actual drafting of the national measures but their
content, which must enable the directive's objectives to be
achieved.

3.9 Where prescriptive/explicit provisions are concerned, the
focus more on the drafting of
Commission and the Court
national measures, which should comply fully with the directi-
ve's provisions.

3.10
Certain Member States encounter serious difficulties
when it comes to drafting rules that transpose prescriptive/
explicit provisions. The basic problem is that any new provi-
sions drafted must, to ensure legal clarity, be gone over with a
fine tooth-comb to remove any redundant or — even worse —
contradictory statements. The right balance therefore has to be
struck between blind copying and excessively free revising of
the provisions in question, and that can be a problem area (7).

4. Transposition methods used by the Member States

The choice of

4.1
for drafting transposition
measures varies according to whether the provisions to be trans-
posed are non-explicit or prescriptive/explicit.

techniques

— It seems to be becoming increasingly common for prescrip-
tive/explicit provisions to be transposed by simply tran-
scribing them, as the transposition of this type of provisions

(7) Contribution by the French Council of State to the XIXth conference of
the Association of the Council of States and Supreme Administrative
Jurisdictions of the European Union, The Hague, 14-15 June 2004.

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leaves Member States no margin of manoeuvre;
the
Commission and the Court thus focus their attention more
on ensuring that the wording of the transposition measures
corresponds with, or even is identical to, the prescriptive
provisions of the directive. However, the Court has never
gone as far as to rule that the obligation to transpose faith-
fully necessitates direct transcription.

— The Commission tends to favour this transcription proce-
dure, while taking particular care to ensure that the defini-
tions included in the directive are faithfully reproduced in
the transposition text, so as to prevent any semantic or
conceptual disparities which would hinder
the uniform
application of Community law in the Member States or its
effectiveness.

— Checking the transposition of non-explicit provisions is,
however, more problematic. Here we are talking about cases
where, in accordance with Article 249 of the EC Treaty, a
directive merely sets out general objectives and leaves it to
the Member States to determine the ways and means of
attaining them. Evaluation of whether the directive has been
transposed fully and faithfully must then focus on the actual
content of the national measures, and not on the drafting of
them. The Court thus advocates that checking of transposi-
tion measures must be done pragmatically on a case by case
basis, in the light of the objectives of the directive and the
sector concerned; and this may throw the Commission off
course (8).

4.6
Belgium uses an urgency procedure which applies to all
laws where a transposition law needs to be adopted quickly
because the transposition deadline is about to expire.

On the other hand,

4.7
fast-track legislative
procedure for the adoption of transposition laws does not exist
in some Member States, such as Germany, Austria and Finland.

this kind of

In France, the directives to be transposed are not treated
4.8
differently (i.e. using a simplified legislative process or a regula-
tory process) according to the problems they pose.

5. Solutions to be recommended for more effective trans-

position of directives

— Most importantly, decide how to draw up Community legis-
lation which is easier to transpose and provides the concep-
tual consistency and degree of continuity essential for busi-
ness activity and private life;

4.2
Lastly, the Member States can also use a reference to
transpose technical provisions such as annexes to directives
which contain lists of items or specimen forms or which are
frequently amended.

— take the decision to use a regulatory transposition instru-
ment earlier on, establishing from the outset discussions on
the draft directive and an accurate, constantly-updated corre-
lation table, following the example of the United Kingdom;

4.3
The Netherlands, Slovakia, Austria, Finland and Estonia
use a reference to transpose the technical annexes to directives
which are often amended by directives adopted under the comi-
tology procedure.

4.4
It is clear that transposition is not as simple an operation
as it might seem because of the way that the latitude permitted
by directives with regard to their implementation varies. This
variation leads to differences between national
transposition
procedures.

The United Kingdom uses a fast-track adoption proce-
4.5
dure for transposition laws, known as ‘negative declaration’,
whereby the government places before Parliament the transposi-
tion text decided on in consultation between government
departments but it is not subject to a debate, except where a
request is made to the contrary.

(8) ECJ, 15 June 2006, Commission v Sweden, C 459/04: The Court
rejected the action which the Commission had brought against Sweden
for failing to fulfil its obligations under Article 7(8) of Council Directive
89/391/EEC of 12 June 1989 on the introduction of measures to
encourage improvements in the safety and health of workers at work.
The Court ruled that the Directive should be deemed a Framework
Directive which, as such, did not demand total harmonisation of
Member States' regulations on the working environment.

Journal of

— speed up the transposition process once the directive has
been published in the Official
the European
Union, by entrusting domestic coordination to a national
contact point which will have a database established for this
purpose, as
recommended by the Commission in its
Communication. The contact point could even be equipped
with an early warning system, which would be triggered a
few months before the expiry of the transposition deadline.
Belgium, Hungary and the Netherlands already have this
kind of arrangement;

— encourage transposition by copying where specific, explicit

provisions or definitions are concerned;

— allow transposition by means of a specific reference to
prescriptive/explicit provisions in the directive such as lists;
tables detailing the products, substances or items covered by
the directive; specimen forms or certificates annexed to the
directive. The reference must be specific as the Court of
Justice considers that a national-law text which makes a
general reference to a directive does not provide proper
transposition (9). The Netherlands, Slovakia, Austria, Finland
and Estonia are champions of this method of transposing
the technical annexes to directives;

(9) ECJ, 20 March 1997, Commission of the European Communities v
Federal Republic of Germany, C 96/95, ECR p.1653, mentioned above.

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— gear national transposition procedures to the scope of the
directive by using fast-track procedures, without neglecting
the mandatory domestic consultations prescribed for the
adoption of regulatory texts.

6. Conclusion

6.1
Improving the application of Community law, as called
for by the Commission, is a sensible goal whose achievement is
for the most part the responsibility of the Member States, who
are clearly faced with problems that are more complex than
they might at first sight appear.

6.2 Member States should not use transposing directives as
an excuse to revise parts of their national legislation which are
not directly affected by the Community legislation in question
(gold-plating), or to ‘downgrade’ domestic legal provisions, redu-
cing people's or businesses' rights and blaming Brussels for
these changes.

6.3 Member States
should more systematically take the
opportunity provided by primary legislation/the Treaties to use
collective bargaining when transposing directives, particularly
those on social and economic issues. According to the subject,
civil
society organisations should be consulted during the
preparations for transposition (10), on the changes or additions
to be made to domestic law on that occasion. Using collective
bargaining and consultation procedures encourages and facili-
implementation of Community law by
tates the subsequent
appealing to civil
society before
adopting national transposition measures enables the national
authorities to take a more informed decision by garnering the
views of the social partners, experts and professionals from the
sector concerned. It also performs a pedagogical function, as it
enables these stakeholders to become more familiar with the
details of the forthcoming reforms. Thus the United Kingdom,
Denmark, Finland and Sweden, for example, consult their social
partners and advisory bodies by sending them the transposition
text together with a set of specific questions about it.

society. Consulting civil

Brussels, 12 March 2008.

6.4
Greater account should be taken of the domestic consti-
tutional arrangements of a number of Member States (federal
states, regional devolution and other means of
transferring
sovereign powers to a sub-state entity). Transposition deadlines
should sometimes be extended where Community provisions
concern,
in particular, powers delegated to local or regional
authorities (regional policy, outermost regions and islands etc.).

National parliaments and regional parliaments or assem-
6.5
blies (such as those in Scotland, Belgium or
the German
Länder), are particularly involved, bearing particular responsi-
bility, in transposition of Community law in fields in which they
can assign powers or have consultative powers. The commis-
sions or committees that they form to this effect should hold
hearings of specialists and representatives of relevant sectors of
civil society and have special authority to plan discussion of the
proposals for transposition laws so as to avoid domestic law
‘emergencies’ pushing the schedules for discussing national
transposition measures beyond the deadlines. However, ‘urgency’
measures (delegation of
legislative powers to the executive)
could be taken in respect of many drafts currently behind sche-
dule which are not essentially sources of dispute between the
political parties, in order to severely reduce the backlog of direc-
tives which have not been transposed within the deadlines.

6.6
Some of them have already put systems in place designed
to speed up the procedures for adopting transposition measures.
Others have developed techniques which should improve the
quality of transposition; others have not yet taken the plunge
and have yet to come into line. For example, ministries and
parliaments could set up a transposition bureau to give guidance
on transposition work. This is a chance to modernise public
action rather than suffering constraints imposed by the Com-
munity institutions, first and foremost the Commission. In other
words, this is an area where each country must shoulder its
responsibilities in European integration and play its part to the
full (11).

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(10) Rapporteur: Mr Retureau, OJ C 24 of 31.1.2006 and rapporteur: Mr

Van Iersel, OJ C 24 of 31.1.2006).

(11) In essence, this is the conclusion of the French Council of State study:
‘Pour une meilleure insertion des normes communautaires dans le
droit national’, mentioned above.