REPORT FROM THE COMMISSION 29TH ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW (2011)
Date: 2012-11-30
Institutions: European Commission
Subjects: EU control, complaint to the Commission, infringement procedure (EU), national implementing measure, sanction (EU)

EUROPEAN 
COMMISSION 

Brussels, 30.11.2012  
COM(2012) 714 final 

REPORT FROM THE COMMISSION 

29TH ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW 
(2011) 

{SWD(2012) 399 final} 
{SWD(2012) 400 final} 

EN 

   EN 

 
 
 
 
  
 
REPORT FROM THE COMMISSION 
29TH ANNUAL REPORT ON MONITORING THE APPLICATION OF EU LAW 
(2011) 

INTRODUCTION 

The European Union cannot achieve its policy goals if Member States do not apply EU law 
effectively on the ground. The respective responsibilities for the Commission and the Member 
States are clearly defined in the Treaties.  The Member States are responsible for the correct 
application of the acquis1, with the obligation to transpose directives in a correct and timely 
manner.    The  Commission  has  the  responsibility  for  monitoring  the  Member  States’  efforts 
and ensuring compliance with EU law, including the resort to formal legal procedures.  

With  a  view  to  effective  policy  implementation,  the  Commission  works  in  partnership  with 
the  Member  States  to  try  to  solve  in  an  efficient  and  satisfactory  manner,  problems  and 
complaints from citizens, business, NGOs and other stakeholders, concerning the application 
of EU law before starting formal infringement procedures.  

Should these problem solving efforts not be successful, the Commission may launch formal 
infringement procedures (under Article 258 TFEU2).  These procedures may concern late or 
incorrect transposition of directives or bad application of the law.   

This Report reviews performance on key aspects of the application of EU law and provides an 
overview  of  strategic  issues.    Performance  and  challenges  in  the  application  of  EU  law  by 
sector  and  by  Member  State  are  examined  in  the  Staff  Working  Documents  accompanying 
this Report.   

1.  TRANSPOSITION OF DIRECTIVES 

1.1.  Overview of the 2011 transposition work 

Member States had to transpose more directives in 2011 compared to the previous year (i.e. 
131 in contrast to 111 directives in 2010).  

There has been a significant increase in late transposition in 2011 compared to the previous 
year.  The Commission launched 1185 late transposition infringements in 2011 compared to 

1  

2  

By the end of 2011, the acquis of the EU consisted of 8862 regulations (2010: approx. 8400) and 1885 
directives (2010: approx. 2000) in addition to the primary law (the Treaties). 

It should be noted that infringement procedures can also be initiated under other provisions of EU law, 
for example Article 106 TFEU in combination with Articles 101 or 102 TFEU.  

2 

 
 
                                                            
855 in 2010 and 531 in 2009.  Compared to the end of 2010, 763 late transposition cases were 
open  at  the  end  of  2011,  representing  a  60%  increase.  Monitoring  late  transposition  is  a 
Commission  priority3  and  the  Commission  proposes  fines  under  the  special  penalty  regime 
established by Article 260(3) TFEU against Member States if they do not transpose directives 
in time (details in point 1.2 below).  

The following chart contains the key figures4 on late transposition infringements initiated by 
the Commission during 2011:  

Late transposition infringements (LTIs) during 2011

1185 new LTIs

763 open LTIs 

470 open LTIs

end of 2010

during 2011

end of 2011

during 2011

892 closed LTIs

1200 

600 

0 

600 

1200 

The following table shows late transposition infringements by Member State:5  

3  

4  

5  

Commission  Communication  on  'A  Europe  of  results  –  Applying  Community  law',  COM(2007)502 
final, p. 9. 

From the sum of the 2010 open LTIs and the 2011 new LTIs (470+1185=1655), the number of closed 
LTIs is deducted (1655-893=763). 

The table below indicates the number of late transposition infringements open on 31 December 2011, 
irrespective of the year when the infringement was opened. By contrast, the section “Transposition of 
directives”  in  the  Member  State  pages  of  Annex  I  shows  how  many  new  late  transposition 
infringements were initiated against the Member States in 2011.  

3 

 
 
 
 
 
                                                            
Late transposition in the EU-27 (31 December 2011)

46

41

40

39

39

37

37

37

36

32

29

29

30

26

25

24

24

27

27

27

22

21

17

15

13

12

11

50

45

40

35

30

25

20

15

10

5

0

IE LV DK MT ES SK BG RO SE LT EE LU NL DE HU PT FR SI UK FI EL AT

IT CY BE CZ PL

The three policy areas where the most late transposition infringements were launched in 2011 
were  transport  (240  procedures),  internal  market  &  services  (198)  and  health  &  consumers 
(164).   

Many  of  these  cases  concerned  a  large  number  of  Member  States.    For  example,  the 
Commission launched procedures against 23 Member States concerning late transposition of 
the  directive  on  energy-efficient  transport  vehicles.6  Similarly,  22  Member  States  were 
involved in late transposition infringements under the directive on road infrastructure safety 
management,7  23  were  launched  concerning  the  directive  on  public  procurement  in  the 
defence and security sector8 and the UCITS recast directive9 triggered the same number.  Late 
transposition  infringements were launched against 12 Member States  concerning the market 
authorisation of medicinal products.10 

6  

7  

8  

9  

10  

Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles 

Directive 2008/96/EC on road infrastructure safety management  

Directive  2009/81/EC  on  the  coordination  of  procedures  for  the  award  of  certain  works  contracts, 
supply contracts and service contracts by contracting authorities or entities in the fields of defence and 
security 

Directive 2009/65/EC on the coordination of laws, regulations and administrative provisions relating to 
undertakings for collective investment in transferable securities (UCITS) 

Directive 2009/53/EC amending [previous directives], as regards variations to the terms of marketing 
authorisations for medicinal products 

4 

 
 
 
                                                            
1.2.  Referrals to the Court under Articles 258 / 260(3) TFEU 

Under  Article  260(3)  TFEU,  when  referring  a  late  transposition  infringement  to  the  Court 
according  to  Article  258  TFEU,  the  Commission  may  specify  financial  penalties  without 
having to wait for a first judgment.  

The purpose of this innovation in the Lisbon Treaty is to give a stronger incentive to Member 
States  to  transpose  directives  within  the  deadlines  laid  down  by  the  legislator  and  hence  to 
ensure that Union legislation is genuinely effective. 

The Commission referred the first late transposition infringement to the Court with a request 
for financial sanctions under  Article 260(3) TFEU in late 2011.11 Five Member States were 
involved in nine such decisions in 2011: Austria (1 case), Germany (3), Greece (1) Italy (1) 
and Poland (3). The proposed daily penalty ranged from € 44,876.16 to € 215,409.60 (lump 
sum payments were not requested).  

The  Member  States’  infringement  profiles  in  the  Staff  Working  Document  contain  more 
detailed information on these cases.  

2. 

INCORRECT TRANSPOSITION AND BAD APPLICATION OF EU LAWS  

While  the  Commission  in  its  duty  as  guardian  of  the  Treaty  conducts  its  own  enquiries  to 
detect  infringements  of  EU  Law  (point  2.1.2),  citizens,  businesses  and  stakeholder 
organisations  make  a  significant  contribution  to  such  monitoring  task  by  reporting 
shortcomings in the transposition and/or application of EU law by Member State authorities 
(see  complaints  under  point  2.1.1).    Once  detected,  problems  are  followed  up  by  bilateral 
discussions  between  the  Commission  and  the  Member  State  concerned  in  order  to  remedy 
them, to the extent possible, using the EU Pilot platform. 

2.1.  Detection of problems and informal solutions 

2.1.1.  Complaints 

Complaints  are  submitted  by  citizens,  businesses,  NGOs  or  other  organisations.  They  are 
handled in line with the Commission’s Communication on the handling of relations with the 
complainant in respect of application of Union law12 which sets a target of 12 months for the 
closure of a case or the launch of the formal procedure from the registration of a complaint. 
The chart below shows the key data13 on citizens’ complaints in 2011:  

11  

12  

13  

The  Commission  Communication  on  the  Implementation  of  Article  260(3)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  contains  detailed  guidelines  on  how  the  Commission  applies  this 
Article.  

COM(2002)141 final This Communication has been replaced by COM(2012)154 on 2 April 2012.  

From  the  sum  of  the  2010  open  complaints  and  the  2011  new  complaints  (2197+3115=5312),  the 
number of processed complaints is deducted (5312-3078=2234).  

5 

 
 
                                                            
Submitted and processed complaints (2011)

New complaints; 
3115 

Open complaints; 
2197 

Open complaints; 
2234 

End of 2010 

During 2011

End of 2011

During 2011

Processed complaints; 
3078 

4000 

3000 

2000 

1000 

0

1000 

2000 

3000 

4000 

3115  new  complaints  –  The  three  Member  States  against  which  the  most  complaints  have 
been filed were Italy (386 complaints), Spain (306) and Germany (263). Citizens, businesses 
and  organisations  reported  irregularities  especially  in  connection  with  environment,  internal 
market & services and justice affairs (604, 530 and 434 complaints, respectively). 

3078  processed  complaints  –  Following  an  initial  assessment  of  more  than  three  thousand 
submissions  in  2011,  the  Commission  opened  bilateral  discussions  with  the  Member  State 
concerned  in  relation  to  619  complaints  in  order  to  clarify  whether  EU  rules  had  been 
breached.14  Complaints  that  led  to  bilateral  discussions  were  most  frequently  related  to 
environment, internal market & services and taxation & customs union (149, 101 and 87 pre-
infringement  files,  respectively).  Bilateral  discussions  with  Member  States  are  dealt  with 
within EU Pilot (see under point 2.1.3).  

Petitions by citizens to the European Parliament continued to point out deficiencies in the way 
how Member States apply EU law. Environment, employment, justice & fundamental rights, 
regional  policy  and  health  &  consumers  issues  received  particular  attention  from  the 

14  

The rest of the complaints have not been further processed because either EU laws were not breached or 
the Commission lacked competence or the correspondence did not qualify as complaint. It is also noted 
that  in  urgent and  exceptional  cases,  the  Commission  may  decide  to  address  a  letter  of  formal  notice 
(Article 258 TFEU) to the Member State without prior bilateral discussion. 

6 

 
 
 
 
 
                                                            
European  Parliament.  Detailed  information  on  petitions  is  provided  in  the  Staff  Working 
Document (Part II).  

2.1.2.  Own initiative cases 

The  Commission’s  own  findings  also  reveal  potential  EU  law  infringements.  Similarly  to 
complaints,  the  Commission  initiates  first  a  bilateral  discussion  with  the  Member  State 
concerned  with  a  view  to  find  a  speedy  solution.  1271  investigations  were  launched  during 
2011. Environment, transport and taxation & customs union were the three policy areas where 
the most potential  infringements were identified (376, 178 and  177 new files,  respectively). 
The Member States primarily concerned were Italy, Spain and Poland (125, 113 and 81 new 
files, respectively).  

Some  formal  infringement  procedures  were  launched  directly  by  the  Commission,  without 
using  EU  Pilot,  by  sending  a  letter  of  formal  notice  under  Article  258  TFEU.  These 
exceptional cases included:  

•  The actions of 20 Member States within the OIV (Organisation Internationale de la 

Vigne et du Vin); and 

•  The  bilateral  agreement  between  Italy  and  China  exempting  holders  of  diplomatic 

passports from the visa requirement.  

2.1.3.  Partnership with Member States: EU Pilot 

EU  Pilot  is  a  Commission  initiative  aimed  at  responding  to  questions  and  identifying 
solutions to problems related to the application of EU law.  It is supported by an on-line data 
base and communication tool.  EU Pilot provides the opportunity to resolve problems before 
entering into formal infringement procedures. Given that cases should, in principle, be dealt 
with within 20 weeks, EU Pilot dialogue facilitates speedy resolution of problems.   

Participation of Member States in EU Pilot has been phased in gradually. By the end of 2011, 
25 Member States had signed up and preparatory work was well advanced with the remaining 
two.15 The following chart contains the main EU Pilot figures16 for 2011:  

15  

16  

Belgium, Poland Latvia and Romania joined EU Pilot in January 2011, followed by Cyprus in March. 
After France and Greece had entered in September 2011, only Luxembourg and Malta remained outside 
the system in 2011.  

From the sum of the 2010 open EU Pilot files and the 2011 new EU Pilot files (1384+1201=2585), the 
number of processed files is deducted (2585-804=1781). 

7 

 
 
                                                            
Newly opened and processed EU Pilot files (2011)

New EU Pilot 
files; 1201 

Open EU Pilot 
files; 1096 

Open EU Pilot 
files; 595 

End of 2010

During 2011 

End of 2011 

During 2011 

Processed EU 
Pilot files; 700 

1500 

1000 

500 

0 

500 

1000 

1201 new dossiers during 2011 – This figure is composed of 510 complaints confirmed by the 
Commission and 691 new own initiative files.  

700 files were closed during 2011 – Of the 700 EU Pilot files in 2011, the Commission closed 
508  files  because  the  Member  State  provided  a  satisfactory  response.  This  is  a  72.5 % 
resolution rate for the Member States (an 8.5 % decrease from the 2010 rate of 81%).17  

1096 files remained pending – By the end of 2011, most of the EU Pilot files were addressed 
to Italy (371), followed by Spain (365) and Germany (193). From the point of view of policy 
areas,  environment  was  the  leading  field  with  335  open  dossiers  before  internal  market  & 
services (129) and taxation & customs union (117).  

The  Commission  closed  183  EU  Pilot  files  last  year  by  launching  formal  infringement 
procedures.  Negative  outcomes  of  the  procedure  under  EU  Pilot  were  most  frequent  in 
dossiers on environment (49 such cases), taxation and customs union (24) and transport (21 
refusals).  Italy, Poland and Spain had the highest number of such transfers to infringement 
proceedings (21, 15 and 14 files, respectively).  

The latest Evaluation Report on EU Pilot18 provides more detailed information. 

17  

18  

28th Annual Report on Monitoring the Application of EU Law (2010) 

Second Evaluation Report on EU Pilot, published on 21 December 2011 

8 

 
 
 
 
                                                            
2.2. 

Infringement procedures 

If a Member State does not resolve the alleged breach of EU law, the Commission launches 
infringement  procedures  under  Art  258  TFEU19  and  may  refer  the  dispute  to  the  Court  of 
Justice of the European Union (the “Court”).  

At the end of 2011, 1775 infringement cases were open.20 The number of open infringement 
cases has been falling year on year - 2100 cases in 2010 and nearly 2900 cases in 2009. The 
following charts break down infringements according to Member States and policy areas: 

Number of infringements in the EU-27 (31 December 2011)

140

120

100

80

60

40

20

0

LTIs

LV EE LT MT DK SK IE
11
15
12

26

13

25

21

SI RO LU HU BG FI CY SE CZ AT NL UK DE PT PL FR ES BE EL
37
37
32

46

37

36

29

39

17

40

24

29

22

24

41

27

30

27

27

IT
39

Total 23

36

36

36

37

41

42

46

47

48

54

54

55

59

60

65

65

71

76

76

84

95

95

99

117 123 135

19  

20  

Or under other provisions of the TFEU, see footnote 2 above. 

This includes all procedures where the Member State has received at least a letter of formal notice from 
the Commission under Article 258 TFEU. 

9 

 
 
 
 
                                                            
The four most infringement-prone policy areas in 2011

Transport; 15%

Internal Market; 15%

Environment; 17%

Taxation ; 12%

Rest of policies; 40%

Discussions  between  the  Member  State  and  the  Commission  continue  during  the  formal 
procedure,  in  order  to  bring  national  law  in  line  with  EU  legislation.  Statistics  confirm  that 
Member States make serious efforts to settle their infringements without Court procedures.21 
During 2011:  

•  the Commission closed 203 infringements after sending the letter of formal notice;  

•  a further 167 cases were solved after reasoned opinion were sent to the Member State; 

and  

•  29  infringements  were  closed  (or  withdrawn  from  the  Court)  after  the  Commission 

decided to refer the case to the Court.  

In total, 399 infringement cases were closed because the Member State has demonstrated its 
compliance with EU law. The Court had delivered 62 judgements under Article 258 TFEU in 
2011, out of which 53 judgments (85 %) were in favour of the Commission.  

Member States usually take the necessary measures to comply with the judgment of the Court 
in  a  timely  manner.  However,  at  the  end  of  2011,  the  Commission  still  had  to  continue  77 
infringement  procedures  under  Article  260(2)  TFEU  given  that  Member  States  failed  to 
comply  with  Court  judgments.  Most  of  these  cases  concerned  Greece  (13),  Italy  (12)  and 

21  

The following figures were calculated for complaint-based and own initiative cases and do not include 
data on late transposition infringements, which are discussed in point I above.  

10 

 
 
 
                                                            
Spain (8). Almost half of the Article 260(2) TFEU infringements related to environment (36) 
with a few cases also in the fields of internal market & services (10) and transport (8).   

Out of these 77 cases, 11 had already been referred to the Court for the second time at end-
2011.  Only  two  Court  judgements  were  delivered  under  Article  260(2)  TFEU  last  year, 
against  Greece22  and  Italy23.  In  principle,  a  Court  judgment  under  Article  260(2)  TFEU 
imposes lump sum and / or daily penalty on the defaulting Member State. The latter must pay 
immediately the lump sum while paying the daily penalty until it reaches full compliance with 
the first Court judgment.  

3. 

INFRINGEMENTS IN THE POLICY CYCLE 

3.1. 

Infringement data - a trigger for action 

The  data  on  performance  of  Member  States  in  the  application  of  law  feeds  into  the  policy 
cycle.  A high frequency of infringements points to possible implementation problems which 
need solutions (e.g. amending existing rules, clarifying the interpretation of existing laws or 
possibly preparing new laws).  Some of the strategic initiatives in the 2011 Commission Work 
Programme were designed specifically in response to implementation problems. 

•  The  new  legislative  proposal  for  posting  of  workers  aimed  at  improving  “the 
implementation  and  application  in  practice  of  Directive  96/71/EC  on  Posting  of 
Workers”24; 

•  The proposal for a new legal framework on the freezing and confiscation of proceeds 
of crime acknowledges that due to the unclear existing EU legal framework, “several 
provisions  have  not  been  transposed  or  properly  implemented  into  national 
legislation”25;  

•  The  initiative  to  amend  the  Capital  Requirements  Directives  (CRD  IV)  argued  that 
“numerous national options and discretions in the earlier CRD prevented a consistent 
implementation of the capital requirements across Europe…”26. 

3.2.  Better Preparation and Planning for Implementation  

Understanding the challenges of transposition and application of law are essential at the early 
stages of policy development (for example, at the stage of the impact assessment).  In order to 

22  

23  

24  

25  

26  

Commission v Greece, C-407/09 (lump sum payment amounting to € 3.000.000,00)  

Commission v Italy, C-496/09 (lump sum payment amounting to € 30.000.000,00) 

Roadmap and Proposal to a directive on the enforcement of Directive 96/71/ec on posting of workers  

Roadmap and Proposal for a directive on the freezing and confiscation of proceeds of crime  

Roadmap  and  Proposals  (1,  2)  to  amend  the  Capital  Requirements  Directives  (CRD  IV)  2006/48/EC 
and 2006/49/EC 

11 

 
 
                                                            
be  able  to  assess  whether  a  proposal  is  sound,  the  Commission  needs  to  have  an  idea  at  an 
early stage of how it might be implemented in the Member States.   

Looking  at  the  implementation  challenge  at  the  impact  assessment  phase  facilitates  further 
work on implementation downstream.  The Commission can support the competent national 
authorities in ensuring the correct transposition and application of EU rules by identifying the 
main  risks  for  timely  and  correct  implementation  of  new  (or  amended)  pieces  of  legislation 
and recommending actions to mitigate those risks in implementation plans. 

The Commission prepared a number of implementation plans for strategic initiatives in 2011. 
These included insider dealing and market manipulation (market abuse)27; alternative dispute 
resolution for consumer disputes28; amendments to Directive 2006/43/EC on statutory audits 
of  annual  accounts  and  consolidated  accounts29;  and  the  Common  Consolidated  Corporate 
Tax Base30.  

Other  forms  of  support  to  the  Member  States  include  bilateral  contact  between  the  national 
administrations  and  the  Commission,  convening  of  expert  groups  and  the  release  of 
guidelines, handbooks, interpretative notes and working papers.  

3.3. 

Sharing Information – Towards a Better Knowledge Base 

It  is  essential  for  'Smart  Regulation'  objectives  that  citizens  and  businesses  understand  how 
EU  legislation  is  being  applied  in  Member  States.  In  2011  a  long-standing  disagreement 
between EU institutions in this area could be solved.  The disagreement  concerned the  way 
Member States have to explain in detail how they transpose  directives into their legal  order 
(see  the  section  on  "Correlation  tables"  in  the  previous  Annual  Reports  on  Monitoring  the 
Application of EU Law). 

The solution agreed between the EU institutions is set up in Joint Political Declarations and 
took  effect  as  from  1  November  201131.  Under  these  arrangements  the  Commission  may 
request, on a case-by-case basis and with proper justification, the transmission of 'explanatory 
documents'  by  the  Member  States.  If  the  Member  States  consider  it  useful  these  documents 
can  also  take  the  form  of  a  correlation  table.  Explanatory  documents  have  to  illustrate  the 
relationship  between  national  transposing  rules  and  the  specific  provisions  of  a  given 
directive.  The  directive’s  preamble  will  contain  a  recital  referring  to  the  Member  States’ 
political commitment to submit to the Commission one or more explanatory documents.  

27  

28  

29  

30  

31  

COM(2011) 651 final  

COM(2011) 793 final  

COM(2011) 778  

COM(2011) 121/4  

Joint Political Declarations on explanatory documents dated 28 September 2011 (OJ C 369, 17.12.2011, 
p. 14–14) and 27 October 2011 (OJ C 369, 17.12.2011, p. 15–15) 

12 

 
 
                                                            
The first review to see whether these Declarations achieved their objectives will be done by 1 
November 2013.  

4.  CONCLUSIONS 

The  correct  application  of  EU  law  continues  to  present  challenges  for  the  Member  States. 
Problems are frequent in the early stages of implementation, with late transposition becoming 
increasingly  problematic.    Late  transposition  infringements  have  steadily  increased  for  the 
past  three  years,  indicating  a  worrisome  trend.    However,  once  the  Commission  opens 
infringement procedures, national measures are usually notified swiftly.  

Problem  solving  mechanisms  are  working.    During  2011,  a  further  7  Member  States  joined 
EU Pilot, bringing the total number of participants up to 25.  The problem solving discussions 
under EU Pilot allowed for timely resolution of nearly two thirds of potential infringements in 
2011.  

The  number  of  formal  infringement  procedures  launched  continued  to  decrease  as  did  the 
number  of  cases  referred  to  the  ECJ.    This  reflects  in  part  the  success  of  EU  Pilot  and  that 
Member States have made serious efforts to bring their laws or practices in line with EU law 
once a procedure is launched. 

The Commission as Guardian of the Treaties will continue to actively monitor the application 
of EU law.  With implementation being key for successful and efficient policy-making at EU 
level and an integral component of the Commission's Smart Regulation agenda, infringement 
performance data is also being more systematically fed into the policy development cycle, in 
particular into evaluations.  

13