Effective Implementation of EU Rules

1. Effective Implementationof EU Rules Prof. P. Nicolaides

2. The EC “pillars” EC tasks Institutions and decision-making rules Common market [four freedoms] Policies & activities EMU & € price stability no excessive deficits Fundamental principles [e.g non-discrimination] Budget Implementation by member states

3. MS obligations: Article 10 • MS shall take all appropriate measures to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community • They shall facilitate the achievement of the Community’s tasks • They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty

4. However, non- or mis-implementationis a problem

5. State of infringement proceedings, 2001

6. Why is non-implementation a problem? • Disintegration: • It blocks integration and the internal market • Missed trade & investment opportunities • Non-compliance & mistrust: • It is as if a non-transparent derogation • has been obtained unilaterally • Waste (of EU resources): • directly: Community funds • indirectly: ties up resources in fraud detection and legal proceedings

7. Nature of implementation problem IM rules & EC policies largely applied by MS They have discretion to choose correct & sufficient means of implementation EC rules inherently difficult some are too general; some are too complicated; But also EC rules may not suit political system of MS MS “can’t” or “won’t” or both Non- or mis-implementation problem

8. Underlying causes • Compromises in Council/EP result in vague language fudging at negotiations  implementation problems • Use at EC level of terms unknown in MS • Divergence across MS due to differences in national legal systems & administrative traditions • MS do too much “gold-plating” • Weak coordination within MS at both formulation & implementation stage

9. Implementation problems[Karolus lessons] • Transposition problems: • difficult concepts, complex admin process, political foot dragging • Application problems • insufficient support / guidance / training / resources, little coordination, turf fighting • Enforcement problems: • opposition, regulatory capture

10. Does the EU have rules onimplementing/administrative capacity? No specific regulation or directive, but • General requirements: e.g. Article 10 • Specific obligations: e.g. NRAs; paying agencies; auditing procedures; evaluation procedures • Commission checks transposition [through MS notifications] & implementation [through complaints] • Commission guidelines [how to apply acquis] • Peer pressure: e.g. EU networks; surveys

11. The ECJ on implementation Principles developed in jurisprudence: • MS free to choose ways & means of implementation, but they must be legally binding • MS must take all measures necessary to guarantee the application and effectiveness of Community law [Art 10]; national measures must ensure actual & full application of EC law in specific & clear way • MS must show same diligence as in national procedures and must ensure publicity for implementing measures • Where EC law creates rights for individuals, national measures must make it clear

12. Jurisprudence, cont. • Transposing measures must use same instrument as that used for similar national issues • MS may not plead internal administrative difficulties for improper/ineffective implementation • Remedies for infringements of EC law must be analogous to national law

13. IM Advisory Committee: Best practices • Appointment of senior national transposition coordinator who “owns” problem • Single ministry responsible for transposition • Advance planning and drafting to start as soon as directive published in OJ • Regular monitoring of process and reporting to parliament • Common transposition guidelines across administration

14. Capacity for effective implementationStep 1: Understand meaning • To implement: “complete or execute a task; fulfil an undertaking; put a plan into effect” • Four essential tasks: • definition/quantification of desired effects at “right” level of detail • identification of responsibility • specification of means to achieve desired effects • assessment whether desired effects have indeed been achieved

15. Concept of effective implementation:“Ability to answer four questions” By whom? Clear responsibility How well? Assessment of performance & results and feedback How? Sufficient resources What? Tasks quantified

16. Step 2: Design of a system forpolicy implementation 1 Formulation: Verifiable results Empowered actors Appropriate measures 2 Application: Sufficient resources 3 Performance: Measurement of verifiable results A “learning” system 5 Adjustment: Provisions for rule change 4 Assessment: Evaluation & consultation

17. Functioning within the EU System EU = multi-level partnerships & networks • System depends on mutual trust & credible partners • “Good” MS must have • Capability: MS must be capable to produce results of EU rules above levels of legal liability • Credibility: implementation procedures should take an “irreversible and self-sustaining course” [independent of political shifts]

18. Step 3: A system for effective implementation within EU 1 Formulation: + Functional independence 2 Application: + Coordination 3 Performance: + Accountability A credible system that enforces EU rules effectively 5 Adjustment: 4 Assessment: + Appeal procedures

19. Case: Regulatory accountability 3 Performance: Accountability = clearly assigned responsibility + sufficient discretion [freedom] + obligation to explain/reason + subject to review [legal & peer] 3 Performance: + Accountability Accountability requires functional independence !

20. Conclusions • Effective implementation is a complex issue • The EU does not have ready recipes to offer • It is not only about M&M (money & men) • It is more about designing systems which are credible capable of acting, learning and adjusting

21. Key components ofeffective implementing capacity Tasks What Who How How well? Actors Empowered Independent Accountable System Adjustment capability Performance benchmarks

22. References • P. Nicolaides, A. Geveke and A.M. den Teuling, Improving Policy Implementation in an Enlarged European Union: The Case of National Regulatory Authorities, European Institute of Public Administration, 2003 • P. Nicolaides, From Graphite to Diamond: The Importance of Institutional Structure in Establishing Capacity for Effective and Credible Application of EU Rules, European Institute of Public Administration, 2002 • P. Nicolaides, Enlargement of the EU and Effective Implementation of Community Rules, European Institute of Public Administration, 2000

23. Checklist: Knowledge • Do staff have good knowledge of relevant acquis? [as evidenced by degrees, seminars, internships, secondments, work experience] • Are there provisions or requirements for participation in EU conferences or meetings involving peers and where experiences are shared? [yes/no] • Do staff have good knowledge of the corresponding situation in their own country? [studies, seminars, secondments, work experience] • Are there formal mechanisms for obtaining information from the market? Are they used? [yes/no; studies, data banks, registers] • Are there requirements for periodic consultation of market participants and assessment of the situation in the market (economic, technological, etc.)? [yes/no]

24. Checklist: Ability • Does national legislation contain all aspects of relevant acquis? [yes/no] • Is the agency in question legally empowered to apply all aspects of relevant national law? [yes/no] • Does it have decision-making autonomy with respect to its tasks? [yes/no] • Does its responsibility overlap with that of other agencies? [yes/no] • If yes, are there formal coordination mechanisms? [yes/no] • Is there a formal mechanism for resolving potential disputes? [yes/no] • Can the agency amend the implementing instruments and/or procedures it uses? [yes/no] • Can it propose to higher authority amendments to implementing instruments and/or procedures? [yes/no] • Can it propose to higher authority amendments of broader policy objectives? [yes/no] • How complex and time-consuming is the procedure for amending implementing instruments and/or procedures? [description] • Are there adequate staff for carrying out the tasks of the agency? [yes/no] How is adequacy determined in this context? [description] • Do they have at their disposal adequate resources? [yes/no] How is adequacy determined in this context? [description] • Does the budget of the agency need higher approval? Or, can it be submitted directly to the national budgetary authority? [yes/no]

25. Checklist: Incentives • Are there any formal performance standards for the agency? [yes/no] • If not, is there provision for periodic external assessment of the performance of the agency? [yes/no] • Is there a periodic internal procedure for review of staff functions and actual work? [yes/no] • Are there potential situations of conflict of interest that could be remedied through separation of tasks? If yes, has such separation been carried out? [yes/no] Examples of potential conflicts of interest that may require segregation of tasks: accreditation or registration v performance evaluation or ex post control or accident investigation; project selection or programme approval v results assessment; making of payments v auditing; investigating a case or complaint v deciding a case or complaint; personal or financial relations with chosen contractors or projects. • Is the agency under obligation to monitor developments in other EU member states, identify and adopt best practice? [yes/no] • Is it under obligation to guide and inform market participants about policy objectives, policy changes and means of achieving compliance? [yes/no] • Are its decision-making procedures open to the public? [yes/no] • Is it under obligation to publish and explain its decisions? [yes/no] • Does it have an internet site that makes accessible all relevant information and decisions? [yes/no] • Does it have to prepare and publish an annual report? [yes/no] • Does it have to present its annual report to parliament? [yes/no] • What kind of sanctions may be brought to bear on the management and/or staff of the agency and for what reasons? [description]