Effective Implementation of EU Rules Prof. P. Nicolaides.
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Transcript of Effective Implementation of EU Rules Prof. P. Nicolaides.
Effective Implementationof EU Rules
Effective Implementationof EU Rules
Prof. P. NicolaidesProf. P. Nicolaides
The EC “pillars”
EC tasksEC tasksInstitutions and decision-making rulesInstitutions and decision-making rules
Commonmarket
[fourfreedoms]
Commonmarket
[fourfreedoms]
Policies &activities
Policies &activities
EMU & €price stabilityno excessive
deficits
EMU & €price stabilityno excessive
deficits
Fundamental principles Fundamental principles [e.g non-discrimination][e.g non-discrimination]Fundamental principles Fundamental principles [e.g non-discrimination][e.g non-discrimination]
BudgetBudgetBudgetBudget
Implementation by member statesImplementation by member statesImplementation by member statesImplementation by member states
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
However, non- or mis-implementationis a problem
Year Complaints Detected by Commission
Non-communic.
Total
1998 1128 396 610 2134 1999 1305 288 677 2270 2000 1225 313 896 2434 2001 1300 273 607 2180 2002 1431 318 607 2356
Year Complaints Detected by Commission
Non-communic.
Total
1998 1128 396 610 2134 1999 1305 288 677 2270 2000 1225 313 896 2434 2001 1300 273 607 2180 2002 1431 318 607 2356
State of infringement proceedings, 2001
NCom NCon BA Other TotalLFN 615 62 239 239 1050RO 334 56 125 125 589RC 82 28 37 37 162
NCom NCon BA Other TotalLFN 615 62 239 239 1050RO 334 56 125 125 589RC 82 28 37 37 162
Opened byCommission [%]
Complaints[%]
EnvironmentInternal marketConsumer prot.TaxationInformation soc.FisheriesSocial
411414
1175
492276
0.604
Opened byCommission [%]
Complaints[%]
EnvironmentInternal marketConsumer prot.TaxationInformation soc.FisheriesSocial
411414
1175
492276
0.604
Why is non-implementation a problem?
Disintegration:It blocks integration and the internal marketMissed trade & investment opportunities
Disintegration:It blocks integration and the internal marketMissed trade & investment opportunities
Non-compliance & mistrust:It is as if a non-transparent derogationhas been obtained unilaterally
Non-compliance & mistrust:It is as if a non-transparent derogationhas been obtained unilaterally
Waste (of EU resources):directly: Community fundsindirectly: ties up resources in fraud
detection and legal proceedings
Waste (of EU resources):directly: Community fundsindirectly: ties up resources in fraud
detection and legal proceedings
Nature of implementation problem
EC rules inherently difficultEC rules inherently difficultsome are too general;some are too general;
some are too complicated;some are too complicated;But also EC rules may notBut also EC rules may notsuit political system of MSsuit political system of MS
EC rules inherently difficultEC rules inherently difficultsome are too general;some are too general;
some are too complicated;some are too complicated;But also EC rules may notBut also EC rules may notsuit political system of MSsuit political system of MS
MS “can’t” or “won’t”MS “can’t” or “won’t”or bothor both
MS “can’t” or “won’t”MS “can’t” or “won’t”or bothor both
IM rules & EC policies largely applied by MSThey have discretion to choose
correct & sufficient means of implementation
IM rules & EC policies largely applied by MSThey have discretion to choose
correct & sufficient means of implementation
Non- or mis-implementation problemNon- or mis-implementation problemNon- or mis-implementation problemNon- or mis-implementation problem
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
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
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
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
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
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
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
Concept of effective implementation:“Ability to answer four questions”
What?What?Tasks quantified
What?What?Tasks quantified
How?How?Sufficient resources
How?How?Sufficient resources
How well?How well?Assessment of
performance & resultsand feedback
How well?How well?Assessment of
performance & resultsand feedback
By whom?By whom?Clear responsibility
By whom?By whom?Clear responsibility
Step 2: Design of a system forpolicy implementation
1 Formulation:Verifiable results
Empowered actorsAppropriate measures
1 Formulation:Verifiable results
Empowered actorsAppropriate measures
3 Performance:Measurementof verifiable
results
3 Performance:Measurementof verifiable
results
4 Assessment:Evaluation & consultation
4 Assessment:Evaluation & consultation
5 Adjustment:Provisions for
rule change
5 Adjustment:Provisions for
rule change
2 Application:
Sufficientresources
2 Application:
Sufficientresources
A “learning” systemA “learning” system
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]
Step 3: A system for effective implementation within EU
1 Formulation:+
Functional independence
1 Formulation:+
Functional independence
3 Performance:+
Accountability
3 Performance:+
Accountability
4 Assessment:+
Appeal procedures
4 Assessment:+
Appeal procedures
5 Adjustment:5 Adjustment:
2 Application:+
Coordination
2 Application:+
Coordination
A credible systemthat enforces EU rules
effectively
A credible systemthat enforces EU rules
effectively
Case: Regulatory accountability
3 Performance:3 Performance:++
Accountability Accountability
3 Performance:3 Performance:++
Accountability Accountability
3 Performance:3 Performance:
Accountability =Accountability =
clearly assigned responsibilityclearly assigned responsibility++
sufficient discretion [freedom]sufficient discretion [freedom]++
obligation to explain/reasonobligation to explain/reason++
subject to review [legal & peer]subject to review [legal & peer]
3 Performance:3 Performance:
Accountability =Accountability =
clearly assigned responsibilityclearly assigned responsibility++
sufficient discretion [freedom]sufficient discretion [freedom]++
obligation to explain/reasonobligation to explain/reason++
subject to review [legal & peer]subject to review [legal & peer]
Accountability requires functional independence !
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
Key components ofeffective implementing capacity
TasksTasksWhatWhatWhoWhoHowHow
How well?How well?
TasksTasksWhatWhatWhoWhoHowHow
How well?How well?
ActorsActors
EmpoweredEmpowered
IndependentIndependent
AccountableAccountable
ActorsActors
EmpoweredEmpowered
IndependentIndependent
AccountableAccountable
SystemSystem
Adjustment capabilityAdjustment capability
Performance benchmarksPerformance benchmarks
SystemSystem
Adjustment capabilityAdjustment capability
Performance benchmarksPerformance benchmarks
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
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]
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]
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]