W5: implementation Flashcards
EU: implementation at different levels
- EU legislation: the start.
- EU Level: Implementing and delegated legislation (comitology, for example). Specifying general legislation.
- National level: Transposition and other measures: directives need to be transposed, but even regulation requires legislative action to make it work
- Disbursements (of grants), inspections: make it work in practice. Money needs to go from distributor to farmers, inspections need to check compliance
- Guidance, sanctions etc.
- EU level: Specific decions monitoring of member states. Monitoring transposition, disbursements/inspections, guidance/sanctions
- Civil society: can complain to the EU about member states. Can also go to court themselves, go to national court and directly invoke EU law
Therefore a centralised monitoring system (EU level) and a decentralised monitoring system (people themselves)
Implementation, definition
the process of applying policies and putting them into practice.
The three phases of implementation
- Legal implementation. Phase in which European legislation is made ready for putting into actual practice. It consists of two elements:
- Making EU legislation operational via implementation decisions.
- Transposition of EU legislation into national legislation. - Practical implementation. Phase where legislation is actually applied and enforced. While most of this is done by the member states, some policies are directly implemented at the EU level by the Commission and the ECB.
- Monitoring implementation: this is the phase where the Commission, courts and others verify whether the legislation is correctly applied.
Legal implementation: transposition
- The transposition of EU legislation is the process of incorporating the legal provisions of EU directives into national legislation.
From EU law to national law: transposing directives
- The major difference between Directives and other forms of EU legislation is that Directives need to be transposed into national laws before they become effective.
- The reasoning behind this form of EU legislation is that it allows member states some flexibility in choosing the specific way of applying EU laws.
A timely transposition of Directives is essential, because the legislation can only come into force when it has been turned into national law.
- Every Directive therefore states the maximum amount of time member states have to transpose it.
- Typically member states have two years to do this.
In the case of a mismatch between the current legislation and the EU legislation, eventual compliance will be more likely if there is domestic pressure from political parties, interest groups, the media and public opinion with regard to the issues at stake.
- These domestic actors will ‘pull’ the government into complying with EU legislation.
- Second, the Commission may also push member states into compliance by making use of several tools to enforce a correct implementation, such as issuing a formal warning and ultimately bringing the member states to court for non-compliance.
Comitology
the system of committees through which civil servants from member states discuss the implementation of EU policies and supervise the commission’s implementing acts
Practical implementation: enacting policies
- The second phase of implementation consists of putting the policies into practice. For the bulk of EU legislation the actual carrying out of policies takes place at the national level. Most of the work is done by civil servants in the member state.
- There are three policies that are implemented directly at the EU level: competition policies, expenditure policies and monetary policies.
- In most areas, member states are responsible. Usually room for own choices and priorities. But: MS are not allowed to be laxer in implementing EU law
There are three policies that are implemented directly at the EU level:
Competition policies:
- In order to ensure an efficient operation of the common market and to ensure fair competition the Commission has extensive executive powers in the area of competition policies.
- The Commission keeps a close eye on the smooth functioning of the market and checks whether free competition is threatened.
Expenditure policies
- As the administrator of the EU budget, the Commission is responsible for the actual payments of the funds.
- In most cases such payments are made to the member states, who in turn distribute the funds amongst the final recipients.
Monetary policies
- Monetary policy: is aimed at ensuring financial stability through managing the supply of money and controlling the interest rates at which banks can borrow and lend money.
- In the EU the decisions are taken by the European Central Bank.
Monitoring implementation
Monitoring via the Commission.The Commission has the formal authority to monitor the correct application of EU law. The Commission has the right to start an infringement procedure against a member state that fails to correctly implement. Three types of problems may occur:
- Non-communication: The member state fails to report to the Commission that it has transposed a Directive.
- Incomplete or incorrect transposition: The Directive has been transposed but not in the proper way or not fully.
- Incorrect or no application of legislation: The policies that need to be carried out are not in line with what has been prescribed or policies are not enacted at all.
Once the Commission has forwarded the case to the court, the infringement proceedings have entered the litigation stage: the Commission brings the case to court.
- Infringement procedures can last for quite some time from the stage of suspecting an infringement to a final judgement of the Court. Most infringements are closed in the early stages
Monitoring via national courts
- Given the fact that by now the principles of supremacy and direct effect subordinate national legislation to EU legislation, courts in the member states are empowered to apply EU law directly in relevant cases and to declare national legislation invalid if it conflicts with EU law.
- This route is actively promoted, because of the sheer number of national courts and quick resolution. Preliminary rulings help with this as well.
Numbers regarding monitoring:
- In 2021: 7508 notified transposition measures. In 2017-2020 around 4200. Commission goes after the easiest cases: no transposition by member state. No notification -> check by commission
- Food safety: 16,8 million entities in the food chain. 4,1 million controls carried out (by national authorities). 654.955 non-compliance issues identified, 388.268 administrative sanctions applied, 12.699 judicial actions taken.
European Administrative space
- European Commission: monitors member states, infringement procedures
- Member state governments: report toward the EC
- Member state authorities: reciprocity with governments. guidance, advice, accountability. Also give advice, form management board of EU agencies. Therefore also steered by member states authorities
- EU Agencies: implement EC decisions, give EC advice, Can also audit, decide, and offer guidance for member state authorities
- European Regulatory Networks (ERNs): network in which member state authorities come together to discuss issues and coordinate activities
Agencies:
administrative organizations set up by the EU that provide technical expertise in different policy areas and assist in coordinating, implementing and monitoring policies.
Decentralized agencies can be categorized in 4 groups:
- A group of agencies that seeks to foster ‘social dialogue’. e.g. the European Agency for Safety and Health at Work.
- A group of agencies consists of so-called observation centres which gather information on specific topics. e.g. the European Environmental Agency.
- A group of agencies, called suppliers, focuses on providing specific services. e.g. the European Training Foundation.
- A group of agencies, called Regulatory agencies, are most closely involved in both the legal and the practical implementation of EU policies e.g. the European Medicines Agency.
Between networks and agencies:
Centralized agency: European Research Council
Networked agency: Europol
- Management by board of member state authorities
Centralized network: European Competition Network
- Commission also part of it, part of EU law. Managed from the European level
Decentralized network: Equinet.
- Looks after equality, agencies that come together in Equinet. Exchange of best practices, but no formal role.
But some networks evolve toward centralized agencies over time
European and national agencies have two important differences:
- National agencies are usually involved in actively monitoring the implementation of legislation in their area. European agencies, on the contrary, are hardly involved in such activities. They may occasionally join national agencies to familiarize themselves with the practice of monitoring.
- National regulatory agencies enjoy autonomous decision-making powers and are themselves authorized. EU regulatory agencies only have advisory powers.
Legal implementation: acts
From formal laws to operative rules: delegated and implementing acts
- Legislative texts are usually very lengthy and detailed, they are almost never able completely to spell out all the operative details that are necessary to implement them properly. In many cases legislators therefore deliberately leave it up to the executive branch to make implementation decisions. Implementation decisions: acts that are adopted by the Commission to put legislation into practice.
- This division of labour ensures that governments have the means to actually implement policies, without having to go to the EP for every small decision.
In the EU the Commission has been assigned the task of adopting implementation legislation. Two types of acts can be used to adopt such measures:
- Delegated acts: Acts adopted by the Commission to modify specific details of Directives and Regulations, as long as they do not change the essence of the legislation. Council and EP can veto a measure
- Implementing acts: Acts that the Commission adopts in order to make sure the member states implement legislation in a uniform fashion. Member states exert control through comitology., more than 300 committees of specialized experts / civil servants
