Transposition

This report takes into account all transposition notifications made by 10 December 2021 for directives with a transposition deadline on or before 30 November 2021. As of that date, 997 directives and 5669 regulations were in force to ensure the functioning of the single market. All comparisons are made with the figures for 10 December 2020, the previous reporting date.

Single market legislation can only achieve its intended effects if the provisions under the relevant Directives are completely and correctly implemented in Member States’ national laws by the deadline set out in these directives.

Monitoring transposition helps make the single market work by ensuring that single market rules are implemented properly in 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 each Member State) 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, by doing so, 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 to a smooth functioning single market. Delays or gaps in transposition deprive people and businesses of the benefits stemming from the agreed rules, sometimes even for years.

The December 2016 Communication on EU Law: Better results through better application pointed to the need to strengthen compliance assessment (the effective assessment of the completeness and conformity of national measures implementing EU law). For cases brought to the Court of Justice under Article 260(3) on the Treaty of the Functioning of the European Union (TFEU), the Commission now systematically asks the Court to impose a lump sum as well as a periodic penalty payment on Member States that do not communicate their transposition measures. This aligns the approach to other infringement cases that can result in financial sanctions. This clearly shows the Commission’s determination to ensure fast transposition.

In 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 Member States to not only 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 “More information”).

It is up to each Member State to implement the obligations under the EU directives in an accurate and timely way. 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 life easier for European consumers and businesses. However, timely and correct transposition of single market rules remains a challenge.

To support Member States more effectively in transposing directives and prevent creating new barriers to the single market, the Commission (in its Better Regulation Guidelines of November 2021) proposed implementation strategies to assist Member States and to monitor the transposition of new directives. These strategies identify the challenges that Member States face during the implementation process and explain support actions the Commission can provide to Member States. These actions include preparing guidance documents, organising expert groups and workshops, creating dedicated websites, and promoting training for practitioners.

Key messages

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 the adoption of repeal of a legal act in the EU and its addition to or removal from the EEA Agreement. This means that the body of EU law that applies in Iceland, Liechtenstein and Norway may differ from that which is in force in the EU. On 1 December 2021, 767 directives and 3548 regulations were in force to ensure the functioning of the single market in the EEA. This should be considered when comparing the Single Market Scoreboard with the EEA Scoreboard.

Focus on short-overdue directives

The European Council set a zero tolerance target in 2002 for delays of 2 years or more 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. However, successive Scoreboards reveal that Member States may have difficulties in transposing directives by the agreed deadlines (time between the entry into force of the directive and the date agreed for notifying national transposition measures to the Commission). The average delay is usually between 6 and 12 months.

• In 2016 (1 November 2015 to 30 November 2016), Member States had to transpose 66 new single market directives. This was significantly more than in 2015 (47), 2017 (39), 2018 (38), 2019 (35), 2020 (51) and 2021 (45). A high number of them has a transposition deadline 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).
• If we only consider the 26 directives with the most recent transposition deadlines (within the last 6 months, 1 June 2021 to 30 November 2021), the transposition deficit is 35.8% (compared to the 1.6% average deficit for all directives). The transposition rate varies by Member State. Denmark and Germany have transposed 24 out of 26 directives (92%); France, Croatia, Italy, Luxembourg and Hungary have transposed over 75% of them (20 or 21). The transposition rate is below 50% for 3 Member States: Belgium and Czechia (10 directives transposed), and Romania (11). In addition to a low transposition rate, these directives have an incompleteness rate of 96% as 26 of the 27 directives have not been transposed by at least one Member State (the incompleteness rate for all directives is 6%).
• There are other reasons for the long delays besides administrative burdens, the complexity of the directives or short transposition deadlines. For these deadlines, if we look at the 26 directives due in the last 6 months, there is an average transposition period of more than 2 years (24.4 months) for the 19 directives adopted by the European Parliament and the Council, and an average transposition period of 17 months for the 7 execution directives adopted by the Commission (or by the Council for taxation issues).
• Most Member States need to better plan their transposition and notification processes for directives that have to be incorporated into national law. As the guardian of the treaties, the Commission strives to launch infringement proceedings for non-communication of the expected national measures within 2 months after the transposition deadline has passed. 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: (i) political attention; (ii) careful planning; (iii) starting transposition work while negotiations are still ongoing; and (iv) close cooperation with national parliaments. Member States are therefore encouraged to proceed with the necessary steps as early as possible on these identified factors and to use tools provided by the Commission. In this context, the Enforcement Action Plan sets out two concrete actions to improve transposing and implementing EU rules: (i) setting up a structured dialogue between Member States and the Commission during the transposition period and (ii) using ‘dynamic virtual concordance tables’ (digital solutions enabling a continuous update on the state of transposition including after the entry into force of the original transposition laws) to support the transposition process. This is in addition to the implementation strategies already described above.

Problematic sectors for Member States (more than 25% of all cases)

• Environment: Croatia (29%)
• Transport: Denmark (50%), Hungary (43%), Czechia (29%)
• Energy: Germany (75%)
• Consumers: Finland (38%)
• Financial services: Lithuania (41%), Malta (36%), the Netherlands (31%), Greece (28%), Bulgaria (27%)
• Connectivity/Media/Digital society: Slovenia (42%), France (33%), Slovakia (29%)

Clearly, these percentages should be viewed in relation to the total number of cases in each Member State (see “Total” column).

New directives to be transposed by 30 November 2022 will soon be added to the current transposition deficit.

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

In its judgment of 8 July 2019 in Case C-543/1, 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 (see above).

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. The Court clarified further the calculation and imposition of daily penalties and lump sums for non-communication cases. Consequently, the Commission proposals under Article 260(3) TFEU are binding as regards the maximum amount of the penalty. On 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.