Analysis: the EU’s legislative compliance problem

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Making greater use of Regulations instead of Directives and imposing tougher non-compliance penalties may not be the solution to induce member states to improve their application of EU laws and policies, argue Dr Phedon Nicolaides and Helen Oberg (EIPA, Maastricht).

As EU leaders call for a “Europe of results” (see EURACTIV 11 May 2006), tackling the Union’s “implementation deficit” has become a major challenge. Not (correctly) applying EU laws indeed contributes to hamper the effectiveness and hence the credibility of the Union vis-à-vis its citizens, the authors argue.

In 90% of the 193 infringement proceedings recorded by the European Court of Justice in 2004, the Commission was comforted in its actions against member states. And 80% of infringement cases concerned directives, the researchers note.

The paper approaches the compliance issue from two angles: first, “whether the non-implementation problem can be remedied by a change in the legal instruments through which EU law is mostly applied;” second, whether the recent Commission’s tougher policy  towards non-complying members is a powerful incentive for them to apply EU law promptly and adequately.

On the directives vs. regulation aspect, Dr Phedon Nicolaides and Helen Oberg are not convinced that directives are intrinsically more difficult to implement. Of course, the transposition time limits applicable to directives allows much leeway for member states not to comply, be they unwilling, unable or simply unaware of their obligations. But regulations similarly imply significant adaptations to each member state’s legal and administrative system.

On the penalties issue, the authors regret that the cost of non-complying remains largely affordable for member states. Infringement penalties are still modest from a state perspective, and they occur too late in the procedure, the authors say. In addition, they note that, due to the (mis)perception of the EU role within the member states, raising penalties could contribute to further damage the EU’s image.

According to Dr Phedon Nicolaides and Helen Oberg the EU should therefore seek alternative approaches. A first step in that direction would be to analyse the factors that lead a member state not to fulfil its obligations:

  • Has non compliance to do with the technicality of the policy concerned (i.e.: environment) or to the political sensitiveness (i.e.: justice and home affairs)? 
  • Is non compliance due to lack of administrative capacities, or to “distinct national preferences”?
  • According to the authors, the Commission is “the best placed” to answer these questions by “identifying good and bad practices” at member states’ level.

To read the full paper, please click here.

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