(1)

Member States transposing Directives into national law can choose the form and methods for such transposition, but are bound by the terms of the Directive as to the result to be achieved and the deadline by which transposition should take place.

(2)

At several summit meetings, including those held in Stockholm in March 2001, Barcelona in March 2002 and Brussels in March 2003 and 2004, the European Council, recognising the importance of a properly functioning internal market (1) for the competitiveness of the European economy, has repeatedly urged Member States to accord high priority to the transposition into national law of Directives affecting the internal market.

(3)

The European Parliament (2), the European Economic and Social Committee (3) and the Committee of the Regions (4) have repeatedly expressed concern about the poor records of Member States in transposing internal market Directives correctly and on time. The Interinstitutional Agreement on better law-making of 16 December 2003 (5) also emphasised the need for Member States to comply with Article 10 of the Treaty and called upon Member States to ensure that Community law is properly and promptly transposed into national law within the prescribed deadlines.

(4)

Despite these calls and the fact that timely and correct transposition is a legal obligation, Member States regularly do not transpose internal market Directives correctly by the deadlines they themselves have agreed, most Member States do not even meet the interim transposition targets set by the European Council, and many such Directives have still not been transposed into national law in all Member States long after the deadline for transposition has passed.

(5)

Late or incorrect transposition of internal market Directives is causing harm to businesses and citizens, as it often deprives them of their rights.

(6)

Late or incorrect transposition also deprives businesses and consumers of the full economic benefits of a properly functioning internal market and harms the competitiveness of the European economy as a whole, undermining the ability of the Community to generate economic growth while sustaining a high level of social cohesion.

(7)

In a European Union of 25 or more Member States, there is an increased risk that late or incorrect transposition of Directives will cause fragmentation of the internal market and a consequent dwindling of its economic benefits.

(8)

The Commission will continue, as a matter of priority, to take vigorous legal action against Member States for late or incorrect transposition, and to encourage peer pressure through the regular publication of the transposition records of Member States in the Internal Market Scoreboard; however, while these actions have had some success in the past, transposition deficits nevertheless persist and a more proactive approach by the Commission and Member States is therefore necessary.

(9)

The Commission indicated, in its 2002 Communication on better monitoring of the application of European Community law (6), how it can and does assist Member States with transposition of Directives into national law.

(10)

It is up to Member States, however, to ensure that they transpose Directives correctly and on time.

(11)

Article 10 of the Treaty requires Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations arising out of the Treaty or resulting from action taken by the institutions of the Community.

(12)

The Court of Justice of the European Communities has consistently held that Member States may not plead provisions, practices or circumstances existing in their own internal legal systems to justify failure to comply with obligations and time limits laid down in Directives.

(13)

There is a need for Member States, given the repetitive nature of their failure to transpose Directives correctly and on time, to re-examine their procedures and practices to ensure that they consistently meet this legal obligation.

(14)

Some Member States have consistently much better transposition records than others, reflecting the existence or adoption of more effective structures, procedures and practices; however, the fact that no Member State has a perfect record suggests that all need to look to improve. In accordance with the Interinstitutional Agreement on better law-making, the Member States should draw up, for themselves and in the interests of the Community, correlation tables illustrating as far as possible the correspondence between Directives and transposition measures, and should make those tables public.

(15)

The Commission announced in its Communication ‘Internal Market Strategy 2003-2006’ (7) that it would issue a Recommendation setting out a number of good practices which should be followed by Member States to ensure better and faster transposition of internal market Directives.

(16)

Member States have expressed an interest in learning from one another’s practices, and have been consulted, through the Internal Market Advisory Committee, on their good transposition practices and their different national constitutional, legal and administrative rules and practices insofar as they may affect transposition.

(17)

A number of good practices have been identified that help Member States to transpose internal market Directives into national law in a timely and correct way.

(18)

It is for each Member State to choose the procedures and practices best designed to ensure the correct and timely transposition of internal market Directives, having regard to what would be most effective in the context of that Member State, since procedures and practices that are effective in one Member State may not be as effective in another.

(19)

In view of the legal uncertainty and confusion engendered by the late transposition of internal market Directives, businesses and citizens should be informed when Directives are not transposed on time and of their legal rights in such cases.

(20)

Where draft implementing provisions are submitted to national Parliaments, they should be accompanied by a declaration concerning their compliance with Community law and informing the Parliament whether they transpose in full or in part the Directive concerned.

(21)

Without prejudice to the Commission’s role and obligations as guardian of the Treaty, the Commission should be informed, when national implementing provisions are notified to it, whether the Directive concerned is thus fully or partly transposed into national law and whether the provisions are believed to comply with Community law.

(22)

Where Member States decide to include the transposition of a Directive as part of a wider legislative exercise, this can lead to their not meeting the transposition deadline; the insertion of conditions and requirements additional to those necessary to transpose a Directive can also hinder the objectives pursued by the Directive concerned,