This report takes into account all transposition notifications made by 10 December 2020 for directives with a transposition deadline on or before 30 November 2020. As of that date, 1027 directives and 5409 regulations were in force to ensure the functioning of the Single Market. All comparisons are made with the figures for the last reporting date, 10 December 2019,  when the UK was still a Member State of the European Union. This should be kept in mind while reading the present report.

Single Market directives can only achieve their intended effects if they are completely and correctly transposed into Member States’ national legislation by the deadline set out in these directives.

Transposition monitoring helps to make the Single Market work, ensuring that Single Market rules are implemented properly in the Member States.

Such monitoring shows the transposition deficit – the gap between the number of Single Market directives adopted by the EU and the number of directives transposed by the Member States – and the conformity deficit (the percentage of those directives incorrectly transposed).

It highlights what Member States are doing to ensure that Single Market law is implemented correctly and encourages them to improve their performance.

Transposition and the Single Market – why does it matter?

Incorrect transposition, implementation and application of EU rules creates barriers and obstacles to a smooth functioning of the Single Market. Delays or gaps in transposition deprive citizens and businesses of the benefits stemming from a common rulebook, sometimes even for years.

The December 2016 Communication on EU Law: Better results through better application pointed to the need to strengthen compliance assessment (effective assessment of the completeness and conformity of national measures implementing EU law). It announced the adjustment of the Commission’s practice in cases brought to the Court of Justice under Article 260(3) TFEU. In future, the Commission will systematically ask the Court to impose a lump sum as well as a periodic penalty payment on Member States that do not communicate their transposition measures. In this way, the Commission has aligned its approach to cases where Member States fail to transpose EU law on time with the approach already applied to other infringement cases entailing financial sanctions.

Transposing EU law accurately and in a timely way, refraining from unjustified ‘gold plating’ and ensuring a level playing field is the responsibility of Member States. The Commission has the task of assisting Member States in transposing EU law correctly, fully and on time, thus preventing the creation of new barriers to the Single Market. Therefore, the March 2020 Long-term action plan for better implementation and enforcement of single market rules (the so-called Enforcement action plan) highlights that the Single Market is built on EU law and is at the heart of the European project. It has fuelled economic growth and has made the life easier for European consumers and businesses. Despite this, timely and correct transposition of Single Market rules remains a challenge for Member States.

With its judgment of 8 July 2019 in Case C-543/17, Commission v Belgium, the Court of Justice clarified the scope of Article 260(3) TFEU by stating that its sanction mechanism may also be applied in case of a partial failure to adopt and to communicate the transposition measures. In this context, the Court refers to the obligation of the Member States not only to notify transposition measures as such, but also to supply sufficiently clear and precise information as to which provisions of national law transpose which provisions of a directive (for further information on the outcome of the judgment in Case C-543/17, see in ‘More information’).

Iceland, Liechtenstein and Norway are also subject to Single Market rules under the EEA Agreement. They are monitored by the EFTA Surveillance Authority.

However, there is a time lag between when a legal act is adopted or repealed in the EU and when it is added to or removed from the EEA Agreement. This means that the body of EU law that applies in Iceland, Liechtenstein and Norway may differ from that in force in the EU. On 1 December 2020, 806 directives and 3388 regulations were in force to ensure the functioning of the Single Market in the EEA. This should be borne in mind when comparing the Single Market Scoreboard with the EEA Scoreboard.

Changes in the incompleteness rate

Focus on short overdue directives

The European Council set a zero tolerance target in2002 for delays of 2 or more years in transposing directives. One of the purposes of the Scoreboard is therefore to report on the number of long overdue directives in each Member State. Nevertheless, from successive Scoreboards, Member States appear to have difficulty in transposing directives within the agreed deadline. The average delay is usually between 6 and 12 months.

• In2016 (1 November 2015 – 30 November 2016) Member States had to transpose 66 new Single Market-related directives, significantly more than in2015 (47), 2017 (39), 2018 (38), 2019 (35) and 2020 (51), but above all these involved a high number of directives with transposition dates close to the cut-off date for calculating the transposition deficit. Consequently, the transposition deficit more than doubled, from 0.7% in December 2015 to 1.5% in December 2016 (back to its worst level since May 2007). This shows that the number of directives with recent transposition dates can also have a negative impact on the Member States' overall transposition performance.
• If we only consider the 17 directives with the most recent transposition dates (within the last 6 months, 1 June 2020 – 30 November 2020), the transposition deficit is 35.9% (compared to the 1% average deficit for all directives). The transposition rate varies by Member State. Denmark, Italy and Portugal have transposed 16 out of 17 directives. Germany, Ireland, France, the Netherlands and Sweden have transposed over 75% of them (13 to 15 out of 17). For 4 Member States, the transposition rate is below 50%: Bulgaria, Czechia and Spain (8/17), Cyprus (7/17), Belgium (6/17) and Luxembourg (4/17). In addition to a low transposition rate, these directives have a completeness rate of 6% (it is at 95% for all directives) as only one of the 17 directives has been transposed by all Member States.
• The long delays cannot be explained only by administrative burdens, the complexity of the directives or short transposition deadlines (time between the adoption of the directive and the date agreed for notifying national transposition measures to the Commission). On these deadlines, if we look at the 17 directives due in the last 6 months, there is an average transposition period of more than 2 years (29.1 months) for the 12 directives adopted by the European Parliament and the Council, and an average transposition period of 6.5 months for the 5 execution directives adopted by the Commission (or by the Council for taxation issues).
• This shows that most of the Member Statesneed to better plan their transposition and notification process for directives that have to be incorporated into national law. As the Guardian of the Treaties, the Commission launches infringement proceedings for non-communication of the expected national measures within 2 months of the transposition deadline’s passing. Too many of these infringement proceedings are being launched because of delays for logistical reasons unrelated to the complexity and/or sensitivity of the directives.
• Based on information provided by Member States, timely transposition seems to be linked to four factors in particular: (1) Political attention; (2) Careful planning; (3) Starting transposition work while negotiations are still ongoing; (4) Close cooperation with national parliaments. Member States are therefore encouraged to proceed with the necessary steps as early as possible as regards these identified factors, in addition to using tools provided by the Commission. In this context, the Enforcement action plan foresees two concrete actions to improve the transposition and implementation of EU rules: (1) a structured dialogue between Member States and the Commission to be established during the transposition period, and (2) the use of ‘dynamic virtual concordance tables’ to support the transposition process.

Single Market directives are legal acts considered to have an impact on the functioning of the Single Market, as defined in Article 26(2) of the Treaty on the Functioning of the European Union (TFEU). This includes the four freedoms (freedom of movement of persons, goods, services and capital across borders within the EU), and supporting policies that have a direct impact on the Single Market such as taxation, employment, culture, social policy, education, public health, energy, consumer protection, transport, environment (except nature protection), and information society and media.

With its judgment of 8 July 2019 in Case C-543/17, Commission v Belgium, the Court of Justice clarified the scope of Article 260(3) of the Treaty on the Functioning of the European Union (TFEU) by stating that its sanction mechanism may also be applied in case of a partial failure to adopt and to communicate the transposition measures. In this context, the Court refers to the obligation of the Member States not only to notify transposition measures as such, but also to supply sufficiently clear and precise information as to which provisions of national law transpose which provisions of a directive. In the absence of such indications and in full respect of the principle of proportionality, the Commission can continue to pursue an infringement procedure based on Articles 258 and 260(3) TFEU. On 16 July 2020, the Court of Justice reconfirmed its position in rulings C-549/18, Commission v Romania, and C-550/18, Commission v Ireland, and clarified further the calculation and imposition of daily penalties and lump sums for the non-communication cases. Consequently, the Commission proposals under article 260(3) TFEU are binding as regards the maximum amount of the penalty. In the context of the calculation of the lump sum, the Court clarified that the calculation of the duration of the infringement starts from the transposition deadline of the Directive.