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Transposition into national law of directives relating to the internal market
The transposition of directives relating to the internal market is fundamental for the smooth operation of the internal market. The Member States have full responsibility for this. They must, in particular, observe two key conditions when transposing directives: the transposition must be correct and carried out within the time limits laid down by the Directives themselves.
Recommendation from the Commission of 12 July 2004 on the transposition into national law of Directives affecting the internal market (Text with EEA relevance) [Official Journal L 98 of 16.04.05].
Due to their lack of rigour in transposing directives relating to the internal market, the Commission recommends that the Member States adopt better practices to ensure correct and timely transposition.
The directives are, by nature, measures that bind the Member States in terms of the results to be achieved. The Member States are, on the other hand, free to choose the form and means of achieving this result. To do so, the Member States have a deadline within which they must transpose the directives.
The correct and timely transposition of directives relating to the internal market is fundamental for the smooth operation of the internal market.
In a Union of twenty-five Member States, late or incorrect transposition of Directives can cause fragmentation of the internal market and make the European economy less competitive with respect to the prospects for growth and social cohesion.
Citizens and businesses should also be informed of the situation regarding the transposition of directives and the rights they have as a result.
It is entirely up to Member States to transpose Directives, in accordance with Article 10 of the EC Treaty. There are, however, procedures to encourage Member States to transpose Directives correctly and on time, and they are also monitored and penalised for incorrect or late transposition by means of:
- infringement proceedings as provided for in Article 226 of the EC Treaty under which the Commission may take legal action before the Court of Justice against Member States for late or incorrect transposition;
- the regular publication of the transposition records of Member States in the Internal Market Scoreboard.
Despite the effectiveness of these procedures, the Member States are not always rigorous in carrying out their obligations to transpose directives. The Commission therefore proposes a more proactive approach to remedy this. Since its 2002 Communication on better monitoring of the application of European Community law [COM(2002) 725 final], the Commission has provided assistance to Member States.
The Commission recommends in particular that Member States adopt good practices based on the examples set by certain Member States. It had already announced its intention to issue a recommendation setting out a number of good practices to ensure better and faster transposition in its communication on the Internal Market Strategy - Priorities 2003-2006. The Member States should thus focus on their procedures and national practices to ensure that they consistently meet this legal obligation, particularly by:
- dealing with the underlying causes of incorrect or late transposition;
- choosing the best designed and most effective procedures and practices with respect to the specific context of each Member State,
- drawing up tables showing the correlation between directives and transposition measures;
- refraining from adding to national implementing legislation conditions or requirements that are not necessary and which may hinder attainment of the objectives pursued by the directive.
The Annex to the Recommendation provides details on the good practices which could be followed, i.e.:
- making correct and timely transposition a permanent political and operational priority;
- ensuring permanent monitoring and coordination of the transposition of internal market directives at administrative and political level;
- ensuring that preparations for transposition take place at an early stage and that they have as their aim correct and timely transposition;
- working closely with national, regional and devolved Parliaments involved in transposition of internal market directives to ensure correct and timely transposition;
- taking action quickly, visibly and effectively to transpose Directives whose transposition is late.
In addition, as part of the transposition procedure, when Member States submit draft implementing provisions to their national Parliaments, and when these are notified to the Commission, they should be accompanied by:
- a declaration concerning their compliance with Community law;
- information as to which parts of the directive have been effectively transposed.
If the transposition of a Directive is part of a wider legislative exercise, the Member States should ensure that this procedure does not delay the application of the directive.
Finally, information on transposition should appear in a publication targeted at citizens and businesses. A website set up by each Government at national level could be the ideal medium. This information should specify:
- the transposition deadline to show whether the directive is transposed on time or whether it is late;
- the contents of this transposition, specifying whether the directive is transposed fully or partly;
- the legal rights of citizens of businesses depending on how the directive was transposed.