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]