European Commission directives may be intended to create common results across Europe, but Ruth Keeling discovers that their transposition into national law varies widely – and there’s simply no data on enforcement.
There is a longstanding claim that European Union law is implemented differently around the continent, thanks to different national attitudes to the EU – and, indeed, to laws in general. Some argue that, while the UK implements each and every EU directive to the letter – perhaps even going beyond the call of duty and adding a little gold-plating – other European nations simply ignore the legislation and continue on their merry way.
The reality is, of course, not that simple. In fact, Lord Rosser, the chairman of the Lords committee which examines statutory instruments – including those originating in EU directives – struggles to remember a case of ‘gold-plating’. It is only when he rummages through the committee’s papers that he discovers an example: in 2007, the Department for Transport translated a directive’s demand for an increase in the minimum level of motor insurance liability to €1,000,000 (around £660,000 at the time) to mean £1,000,000 in UK statute. The committee consequently warned the House of Lords that it “did not find the department’s justification for this gold-plating persuasive”.
Generally speaking, says Lord Rosser, the relatively few statutory instruments emanating from EU directives are either in good order, or are mentioned to the House of Lords for other reasons – such as public concerns that a directive on the labelling and advertising of infant milk formula were not strong enough.
Still, member states do have variable reputations for their performance in ‘transposition’ – the official term for the translation of EU directives into domestic statute. Since 1998, the European Commission has published an annual report listing how many new directives each member has failed to implement in the past year. In its latest report, Italy tops the league.
In part, the explanation for variable performance lies in states’ legislative and administrative capacity, says Dr Dionyssis Dimitrakopoulos, senior lecturer in politics at University of London’s Birkbeck College; if a country struggles to produce domestic legislation, it will also struggle with EU directives. In Italy, you must also consider recent years of instability, when there were a number of elections in rapid succession, he explains.
In fact, says Asya Zhelyazkova, who is writing a PhD on EU law-making at Utrecht University, administrative capacity is a more reliable indicator of a member state’s ability to implement directives than whether the country is pro- or anti-EU, or even whether a member state supports a particular directive.
A detailed examination of transposition, academics say, produces a very mixed picture. A member state may, for example, have a good record on environment law and a poor one on labour law. The problem can often lie with the directive; in some cases, the language is ambiguous and allows states a lot of leeway in the way they transpose the regulation, explains Dimitrakopoulos.
“Legislation is based on the creative use of diplomatic language,” he says. “Nice if you’re a politician, but a problem if you’re a lawyer.” If directives are very complex or in a new policy area, they can also take a long time to transpose and lead to an infringement. The UK fell foul of this with the directive on the safe disposal of Waste Electrical and Electronic Equipment (WEEE), which only reached the statute book two years after the EU’s deadline.
There can, obviously, be problems if the directive clashes with existing national legislation and requires a major change; and, less obviously, when existing legislation is in place which nearly, but not quite, meets the EU’s requirements. These latter cases, says Professor Bernard Steunenberg, Leiden University’s professor of public administration, can lead to “bureaucratic reasoning” on the part of a government and its civil servants that they can carry on as they are and not adopt the new approach to a problem that they view as already fixed.
There are also differences between different sectors; around 40 per cent of infringements are related to the environment and trade, for example. Labour and equality law is responsible for a further 10 per cent. Academics say there is not enough evidence yet to explain these differences, but Dimitrakopoulos says it can sometimes indicate “a clash of values between two competing groups. One is the new liberals, including the UK, who see the EU as a free trade area; and the other group promote regulated capitalism, and don’t believe in unfettered markets.”
A legislative black hole
While there have been some academic studies of the transposition of EU law into national law, academics believe the research has been patchy and provides an incomplete picture. There has been even less examination of the full implementation of EU directives: whether a country, once the directive is in its legislation, is actually putting the law into practice.
In the last four or five years, the European Commission has come to recognise that it has relatively little information about whether its carefully crafted laws are being observed and enforced. As a result, and in addition to the transposition league table established in 1998, it has introduced a target demanding that member states get 99 per cent of directives into national legislation before the deadline – a target that has been universally met this year.
However, that still only relates to transposition, rather than implementation. Part of the problem, says Steunenberg, is that measuring implementation is very complex and the Commission does not have the capacity. All it can do is occasionally ask experts to examine how well a five-year-old directive is being implemented, and listen carefully to the complaints of citizens and member states who believe that a country is not putting a law into practice.
Dimitrakopoulos argues that this lack of information about enforcement explains why the 10 newest member states, which joined the EU in 2004, perform best in the Commission’s annual league table (the older members, known as the EU-15, are marked in a darker colour on the table). He believes these statistics “might flatter” the new entrants because they only relate to the technical transposition, rather than practical enforcement.
“We know that [the new members] have some weak administration and problems of corruption”, he says, suggesting that civil society in these countries might be weaker than in the original EU member states, where individuals and organisations are ready and willing to take the state to court for non-implementation of a directive. The area is ripe for research, says Dimitrakopoulos.
Steunenberg suggests that the lack of information about implementation across the EU “may be because member states did not want to discuss this, because it is about the authority of the member states, and could lead to a member state being questioned by the other member states in the Council of Ministers as to why it is not performing well”.
Whatever the reason, the lack of evidence is a real problem, says Steunenberg: “It is really a black hole, we don’t know what is going on.” It is very important that the Commission and member states do know what is happening on the ground, because this information should inform and improve future law-making. “This feedback is not yet operational in the EU, but it should be,” he says.
Best practice law-making
The Commission says that it does take a keen interest in the effective transposition and implementation of directives, and aims to spread best practice. The Internal Markets Directorate, says Chantal Hughes, the directorate’s spokesperson, has recently set up a “risk-based transposition plan” involving advanced screening of each directive by the Commission and member states, as well as workshops and a ‘transposition network’ of all those involved with translating the directive into domestic legislation. Hughes says political will is of major importance to timely implementation; but even where there is the will, she says, it is “important that member states start planning very early on”.
In the UK, Michael Connarty MP, chairman of the Commons European scrutiny committee, agrees that political will and early action are vital. He says there have been occasions when the explanatory memorandum – the responsible department’s analysis of what the directive is saying and how the government should respond to the directive – is unclear; perhaps deliberately so, because the “department doesn’t want us to know enough” to be able to judge the situation properly. “Obfuscation is not acceptable,” he says.
However, the biggest cause of problems for the committee is cases when the department does not get its explanatory memo, or its responses to committee queries, circulated fast enough, says Connarty. Then, he explains, the government’s approach can’t be scrutinised quickly enough and the minister finds himself in a Council of Europe meeting being ticked off by European colleagues because the UK is not ready to implement a directive.
Connarty, who has chaired the scrutiny committee since 2006, reveals that there is little pattern to which departments are good or bad at transposing directives. The Home Office recently went from getting accolades from the committee to being late with a number of directives, he reveals.
The MP says that delays to the process can originate with a minister who doesn’t fully understand the European legislative process and fails to give their civil servants a lead, or occur when the department’s civil servant responsible for European coordination has an excessive workload due to a large amount of legislation in the area or a shortage of staff. The Home Office’s difficulties were simply because not enough Christmas cover had been arranged, the MP reports.
There can also be systemic failure, he says; as there has been recently at the business department, where a July 2008 request for additional information to the explanatory memorandum was either not received or lost; the error was discovered in December, but the department didn’t react until March. In a rare move, the committee called business minister Baroness Vadera to give evidence, where she explained that the episode “has shown up serious systems failures that we are correcting” (see below).
The speed at which the civil service rotates staff – every three years or so – can also be a frustration, says Connarty; especially for the committee’s clerks, who have been in the role for five or six years, and “have huge oversight and historical knowledge of material coming through from the Commission”. Inevitably, says Connarty, if you get “someone who is making a great fist of something like European scrutiny, which is like a fantastically fast game of tennis”, they are noticed and promoted to another job elsewhere. “Then you go through a period of slippage, chaos and confusion, and sometimes absolute failure. It is very much to do with that change in the personnel.”
In all, he says, every department has a very mixed track record: “You couldn’t say there is a consistency of failure, or that there is an embedding of success.”
That is not to say that the Cabinet Office’s European section does not provide good, strong guidance, he adds. The government has recently, for example, made attempts to get ahead of the game with regard to what may be coming out of the European Commission in the future, and to ensure that departments are informing the Commission’s thinking as early as possible in the drafting of directives.
However, Connarty adds, civil servants also have to consider the departmental or ministerial agenda, which may mean Cabinet Office advice isn’t followed to the letter. Between the demands of the Commission, those of the scrutiny committee and those of the department itself, Connarty admits, civil servants “are between a rock and a hard place”.
Perhaps most importantly, Connarty says, the civil servants responsible for getting directives ready for UK legislation “get much more right than they get wrong”. With the UK performing close to the European average – we hold a mid-table position in the Commission’s infringement league table, once the newest member states are removed – departments will succeed if they concentrate on making sure that they have the administrative capacity to cope with the workload; ensure that expertise is passed on; and begin work on examining the implications of each directive as early as possible.