Enforcement of EU Law: Hearing of the European Parliament - Part 1

On the 27th November 2018, the European Parliament hosted an inter-parliamentary meeting on ‘Empowering National Parliament’s and Enforcing Citizens’ Rights in the Implementation and Application of EU Law’ organised by the Committee of Legal Affairs and the Committee of Petitions in conjunction with the European Network of Ombudsmen. Network co-ordinators, Dr Sara Drake and Dr Melanie Smith, were invited as experts to present reports on the Implementation of the Air Passenger Rights Regulation 261/2004, and the challenges facing national parliaments in ensuring the effective application of EU law. Their reports can be found here and here.

The morning session was opened by MEP Mady Delvaux, Vice-Chair of the Committee of Legal Affairs. She emphasised the importance of the transposition, implementation and effective application of EU law for the legitimacy and credibility of the EU:

‘Far from technicalities, these are key elements of the EU democracy. A democracy which is facing challenges – a rule of law crisis and a decline in citizens’ trust in the capacity of the EU to deliver on its promises. The EU can only deliver tangible benefits to citizens and businesses if it is applied properly in practice.’

She drew attention to the role played by national parliaments as key players in this process, not only at the transposition stage, but also post-Lisbon in shaping EU policy at an earlier stage through dialogue and scrutiny of legislative proposals. She also referred to the role played by other national, regional and local actors who apply the law on the ground. She added, ‘If legislation is clear and accessible, it can be implemented effectively. Citizens can more easily understand their rights and obligations, and the judiciary can enforce it.’ The co-chair, MEP Pal Csáky, Vice-Chair of the Committee on Petitions, reinforced this view and drew attention to the high number of petitions received by the European Parliament which refer to the lack of transposition and implementation of EU rights into national law.

For this reason, the morning session would centre on the implementation of three case studies: Directive 2008/52/EC on Mediation (EU Mediation Directive); Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment (Environmental Impact Assessment Directive) amending the original Directive 2011/92/EU; and Regulation 261/2004 on Air Passenger Rights. The details of these sessions can be found in 'Enforcement of EU Law - Hearing of the European Parliament' Part 2.

The position of the European Commission was set out by Céline Gauer, Deputy Secretary General, who referred to the renewed focus on the effective implementation and application of EU law highlighted by President Juncker in his 2018 State of Union address. She claimed that:

‘In a Union which is a community of law, the effective application of EU law is absolutely essential for citizens’ and businesses to enjoy the benefits of EU policies. Its proper application ensures that they will be able to enjoy their rights and have easy, swift ways to obtain redress in the event of a breach.’

Ms. Gauer emphasised that this is task for actors at all levels and not just the Commission. She referred to the Commission’s 2016 Communication, EU law: Better results through better application(2017/C 18/02), which sets outs a more focused and more strategic approach based on two principles. First, the idea that it is better to work in co-operation with Member States in the transposition and implementation of EU law since ‘prevention is better than cure’, particularly in relation to directives. To this end, the Commission aims to provide the Member States with instruments and tools to know how to best implement directives. Second, where there is a breach, the Commission commits to intervene swiftly under Article 258 TFEU. This intervention is based on four priorities: i) where transposition is incomplete or incorrect; ii) where a Member State does not comply with CJEU judgments; iii) where the EU financial interests are at stake; iv) where the EU executive competences are in play. Gauer acknowledged that infringements proceedings are not fully relevant for individuals and businesses. This is why the Commission recognises the importance of the partnership with the national ombudsmen, and why it is ombudsmen who may be alert to systemic breaches in EU law resulting from complaints. This is a partnership the Commission has been developing in recent years and is keen to develop further.

Gauer then looked at the state of play with regard to enforcement two years after the 2016 Communication by giving an overview of the conclusions and recommendations from the European Court of Auditors recent landscape review 'Putting EU law into practice – The European Commission’s oversight responsibilities under Article 17 (1) TEU' (September 2018). The report acknowledged the progress and efforts made to date by the Commission in relation to the implementation and enforcement of EU law. It commended four elements: i) the way in which the priorities have been operated and the focus on the most serious of breaches; ii) the setting of benchmarks to be more efficient and act more swiftly; iii) the strengthening of co-operation with the Member States; iv) directly communicating with stakeholders and the public at large. However, the report said that more effort was needed in relation to the way in which citizens’ rights and complaints are handled and transparency. Gauer acknowledged that complaints from citizens and businesses are highly valued and essential to detect the breaches since it would be impossible for the Commission to detect all breaches from its base in Brussels. Gauer drew attention to the fact that the Commission was often engaging in expectation management since complainants may be seeking financial compensation which the Commission is unable to deliver and which is ultimately a role for the national courts in damages actions. In this respect, the Commission is working on sharing such information with citizens and calls on the national ombudsmen to also guide citizens on where the appropriate proper gateway for voicing their concerns.

To promote greater transparency on enforcement activity, the Commission has committed to taking more action. First, it will explain which cases it has pursued and why through press releases at end of infringement cycle, and a yearly report which is debated by the European Parliament. The Commission welcomes this scrutiny and feedback by the European Parliament. Second, it acknowledged that citizens and businesses want more transparency on implementation of directives at national level so, for example, to what extent has a citizen’s Member State implemented a directive? Has it gone beyond what is required (gold-plating)? How do the Member States compare? The Commission is working on making this information available. In this context, Gauer stressed the essential role played by national parliaments to ensure that transposition is correct and timely, but also more importantly that a political debate on EU policy is held in a national forum. Gauer concluded by underlining again that implementation is a common task for national and EU bodies, and since it is not a static issue, all levels need to constantly improve the way EU law is implemented. Her final point was to draw attention to the publication in November 2018 of the Commission Communication, The Single Market in a changing world, A unique asset in need of renewed political commitment(COM (2018) 772 final. This Communication was in response to a request from the European Council in March 2018 to assess the state of play with regard to the implementation, application and enforcement of existing Single Market legislation. One remaining barrier to the functioning of the Single Market is the need for transposition, implementation, application and enforcement at all levels. According to Gauer, ‘Without proper implementation, the rules have no point.’

Next came Emily O’Reilly, EU Ombudsman. Her opening remarks focused on the external challenges to the EU project and had a strong political message, with a warning. For O’Reilly, the importance of the debate goes to the very heart of our understanding of some of the democratic challenges that currently face the EU. In her view:

‘The ability of the people to understand and influence both the making of and the implementation of the law that affect their daily lives is the essence of democracy, but it is also critical to our human need for autonomy and for control over our world; the feeling that we matter and that the destiny of our lives is not just determined by others. In our increasingly globalised and interconnected societies and in a world where new technologies are exerting significant levels of control over the political agenda, it can be easy for people to believe, or be led to believe, that they nor their national parliament have control over their laws that govern the worked in which they live.’

For O’Reilly, it was no coincidence that the slogan of the campaigners for the Leave vote in the UK-EU referendum was ‘take back control’ since they knew it would appeal to a deep-seated political and psychological need in people. She warned that, ‘When people feel that they have lost control, the credibility and legitimacy will suffer even when there are ostensibly democratic.’ She highlighted two ways in which the ‘lack of control’ narrative is used in a damaging way. First, by Eurosceptics to attack the EU. Second, by pro-EU politicians and other influences to publicly blame Brussels before their domestic audience even where they themselves were involved in the decision-making and then decide to criticise the rules or are reluctant to apply them. To support this latter claim, she referred to her work on Transparency and Accountability by the Council of the EU, which is currently being considered by the European Parliament. In her view, citizens’ have the right to know the position of their national government at EU level as they do at home.

O’Reilly recounted the various tools at the EU’s disposal which enable citizens and businesses to have a say in how EU law is made and applied: infringement complaints; courts actions; public consultations; the EU citizens’ initiative, as well as EU and national ombudsmen. She sees the latter as a bridge between the citizen and the national administration, and sees the value in using the European Network of Ombudsmen build a bridge between EU citizens and the EU administration where their problems have a legislative dimension. To this end, she drew attention to the practice of engaging in parallel investigations on issues that have significant public interest and an EU law underpinning. This combined work can have greater force.

O’Reilly welcomed the development of the role of national parliaments under the Lisbon Treaty, the role played by European Affairs Committees, and the fact that the debate was focusing on the role of national parliaments in the applicationof EU law today and not just law-making. Once again, she warned that:

‘Beyond the mechanisms and procedures that exist for EU citizens and national parliaments to exert influence, it is crucial that they feel and are made to feel that they are empowered can play this role – and that their efforts are taken seriously – Member State national parliaments can be and should be powerful players and make meaningful links between the EU institutions and citizens.’

She lamented the time taken for the first ever successful Citizens’ Initiative to lead to legislative proposals, and calls for further thought on how to give effect to citizens’ and national parliamentarians trying to make change. She suggested that the most important place to start is the level of simple the awareness how the voices of national parliaments and citizens’ can be heard. The litmus test will be next European Parliament elections in May 2019 - how will the EU respond to Eurosceptic populism? A top priority for the EU should be ensuring that the public feels that it does have influence over the laws made by the EU institutions, who ultimately serve them.