Taking the pulse of Member States’ application of EU Law: how bad are we performing?

The European Commission press release, dated back to 1^st October 2014, leaves few doubts unreturned. Following the issuing of the 31^st Annual Report on monitoring the application of EU law (1), it has been noted a steady decrement of the on-going infringement cases in the analysed period. At the same time, it pinpoints a positive trend in the ramping digits related to cases solved thanks to the EU problem solving mechanisms, such as the CHAP and the EU Pilot.

These EU policies are intervention tools that should be seen as remedial to the enduring problems related to the implementation and enforcement of the EU law. The CHAP, as well as the EU Pilot are thought to tackle the compliance deficit in a pre-emptive phase, namely before the start of the infringement procedure.

Since 2002, the Commission has showed a significant commitment towards the creation of viable EU policies able to better and speed up the implementation and enforcement of EU law process within the transposition in national legal systems. Throughout its Communications, the EU Commission meant to highlight the main three goals to be achieved within the scope of a proper transposition and respect of EU law by the Member States:

– to resolve implementation and enforcement problems at an early stage;

– to strengthen implementation tools;
– to reduce the recourse to infringement procedures. (2)

Before the EU’s counteractions: CHAP an EU-pilot system.

Chap (2009) and EU Pilot (2008) are baby-born instruments, blossomed from the latest evolutions marked by the EU’s integration process. CHAP as suggested by the acronymic name – Complaints Handling / Accueil des Plaignants- is an IT instrument deemed to register complaints and enquiries, addressing any complaints received by the Commission by anyone – citizens, businesses, and representatives of civil society. Whereas these actors do feel a breach, partial or complete, of the EU law implementation is taking place, they are called and praised to express their complaints.

Essentially, if the complaint does not start from the Commission, the civil society is enabled to make its voice to be heard in Brussels, by lodging a complaint against practices considered not compatible with the EU’s visions and principles, as for art. 2 and 4 of TUE.

And, as a matter of fact, the 28th annual report on monitoring the application of EU law in 2010 endowed the civil society’s role by defining the individual complaints by natural or legal persons as “the main source for the detection of breaches of European Union law” (3), noting the implementation of tools for democratic inclusion of civil society in the European decisional process.

Bypassing the bulky “pre 258-letter procedure”, the IT platform EU Pilot has triggered an administrative mechanism aimed to settle at an early stage incorrect attitudes set by the Member States since 2008. This system allows Member States to provide with all requested information related to the possible breach to EU law to the Commission, within a timeframe of 10 weeks. Although not being directly mentioned in the Treaty of Lisbon approved text, the EU Pilot system gains its legal basis from the work and tasks of the Commission. Moreover, it may be skipped whereas the Member State found “guilty” to possibly breach the EU law starts a talk process with the Commission. Therefore, EU Pilot may be considered as a quicker answer to complaints so to take up preventive actions by the European Commission towards the EU Member State likely to be unresponsive in any phase of the transposition path (4).

A short-time evaluation proves EU Pilot to be an affective instrument in the scope of reduction of time to settle disputes between the EU and the States within the infringement process towards the setting of deadlines and timelines for both actors involved in the pre-infringement phase.

This positive trend has been welcomed by the Commission’s Secretariat-General in 2012, reviewing that “after the implementation of EU Pilot […], the number of days used in average under EU Pilot procedure decreased to 132 from the 169 calendar days needed in average in 2007.

[…]The problem solving discussions under EU Pilot allowed for timely resolution of nearly two thirds of potential infringements’. (5)

It is well acquainted that the set of deadlines and timeframes is vital for the achievement of results. Hence, the effectiveness of EU policies passes also through the respect of timely transposition, consequently throughout the operational monitoring of the Commission and UE bodies.

The 31^st Report highlights that for most Countries, the infringement source comes from the time-lapse needed to transpose the EU regulation into their national systems. Reasons for these belated transpositions are both EU level and national level, gauging from political issues to administrative ones, from procedural to legal.

Nevertheless, the percentage of infringement procedures climbs up for incorrect and bad transpositions process carried out against those less virtuous Member States.

The Report awards Sweden, the Netherlands and Ireland as the best performers, while leaving to Italy, Cyprus and Slovenia the role of less virtuous in the respect of EU law in the EU-28 [graphics available in the EC Press Release IP/14/1072, access through web link (1)].

Aware of the fact that transposition into national legal systems is the only way for the EU laws to become fully operative, the Member States are called to adhere more promptly to the EU’s directives so to proceed towards the construction of a more efficient and united European Union.

The other –bad– side of the coin: budgetary problems.

It is not solely about refractories or less-virtuous Member States. The whole problem related to the infringements and belated EU law transposition, is connected to the Commission losing grip on the monitoring system. The decrement of the number of controls on the transposition process performed by Member States has basically two sides. First, the good side of the coin, related to the good results registered after the EU Pilot system took over.

Nonetheless flipping the coin, its bad side is shaped on the Commission’s moan sealing the lack of funds to carry out substantive monitoring campaigns. On the same page, the letter of President Barroso addressing the Italian Presidency of the EU Council stresses the risk connected to the EU budget payment shortages.

It shall not be mistakenly classified as mere budgetary exercise. The issue is intimately related with the feasibility of the European project and the credibility of the European Council’s decisions.

As obvious as it may sound, European policies have to be applied properly by the EU Member States to be effective. In this sense, Barroso’s denounce involves both European efforts to meet the targets set, and at the same time it is a call for those States taking an anomic conduct in the transposition process. It may be interesting to note that the letter is addressed to the State holding the Presidency of the EU Council, which incidentally recorded in the year under analysis -2013- the worst scoreboard on the application of EU law – namely, Italy with 104 open infringement cases as of December 2013.

Acknowledging that the policy areas with more infringements procedures opened for late transpositions are transports, internal market and services, health and consumers, with a particular concern for the environmental issues, EU studies suggests some remedial to solve the problem and to ease the Commission from the whole burden of the monitoring process. Supporting the call for the EU-28 to get preparatory steps and adjust their national system so to be more receptive to the EU directives, these suggestions involve also the role of the European Parliament. Acting under art. 14 TUE and 233 TFUE, the EP should help and control Commission’s monitoring of EU law enforcement into national systems and further act under the fast track procedure so to make all tools and resources available for the Commission.

(Anita Nappo)

Pour en savoir plus:

(1) 31^st Annual report on monitoring the application of EU law, full text: [en] http://ec.europa.eu/eu_law/infringements/infringements_annual_report_31_en.htm

[fr]http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_31/com_2014_612_fr.pdf

(2) The EU policy for implementation and enforcement of EU law is based on the 2002 Commission Communication “Better monitoring of the application of Community Law”, further developed in a Communication of 2007: “A Europe of results – Applying Community Law” and, specifically on environment policy by the 2008 Communication “Implementing European Environmental Community Law”.

http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/493014/IPOL-JURI_ET(2013)493014_EN.pdf

(3) 28^th Annual Report on monitoring the application of EU law (2010)

[en] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2012-0330+0+DOC+XML+V0//EN

[fr] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2012-0330+0+DOC+XML+V0//FR

(4) The EU Pilot is a pre-infringement tool which, according to the Commission Communication as defined in the document “A Europe of Results – Applying Community Law”. [en] http://ec.europa.eu/eu_law/eulaw/pdf/com_2007_502_en.pdf

[fr] http://ec.europa.eu/eu_law/eulaw/pdf/com_2007_502_fr.pdf

(5) 30^th Annual Report on monitoring the application of EU Law (2012)

[en] http://ec.europa.eu/eu_law/infringements/infringements_annual_report_30_en.htm

[fr]http://ec.europa.eu/eu_law/docs/docs_infringements/annual_report_30/com_2013_726_fr.pdf

Further suggested readings on the issue:

– [en] http://ec.europa.eu/eu_law/infringements/infringements_en.htm