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Assessing transposition and compliance aspects

The Treaty requires that any action should be as simple as possible and leave as much scope for national decision as possible. IAs must therefore deal with issues of implementation, management and enforcement. ‘Maximum effort should be made to ensure the clarity, simplicity, operability and enforceability of legislation’.
When you consider compliance issues, you need to remember that EU rules are in general implemented and enforced by Member State authorities, often at regional or local level. Your compliance analysis therefore needs to take account of possible variations in how Member States implement the rule. For example, framework directives leave considerable scope for flexible implementation at Member State level. This could have a knock-on effect on compliance by the target groups in different countries. A realistic time should be given for transposition in the light of the obligations involved. Detailed requirements, leaving little or no discretion to Member States, can often be adopted through regulations which should be used to the greatest extent possible for technical implementing measures. Consulting the target population and the Member States will help you with your compliance analysis.
To be effective, the law may require enforcement mechanisms, such as quick and simple systems for citizens and business to appeal against administrative decisions, inspection programmes or reporting obligations.

The following questions will help you to identify potential obstacles to compliance by the group whose behaviour is meant to change, and any incentives that might increase compliance:

  • Are the requirements of the options simple and easy to understand? Inaccessible and incomprehensible rules will reduce compliance, particularly for SMEs, which may lack time and resources to deal with large volumes of complex rules.

Would the target group be able and willing to comply? This may depend on the following:

  • Compliance costs, including administrative burdens, may affect overall compliance rates, in particular for SMEs.
  • Overly complicated and technical regulation may not be properly understood. Moreover, it may appear not to have any clear purpose, leading to a loss of confidence in the regulators and a tendency to evasive behaviour.
  • Coherence with existing market practices or cultural norms may help raise compliance rates.
  • Prior consultation builds in a sense of ‘ownership’, or at least understanding, of the rule and can ease compliance concerns.
  • Co-ordinating implementation with regulatory authorities can improve awareness and understanding.
  • Networking and co-ordination between Member State authorities can be required for the effective application of the law.
  • Rigorous monitoring arrangements, appeal mechanisms and sanctions for non-compliance can be expected to increase compliance rates and be more effective than the Commission being called on to intervene.
  • Providing information and other support measures can affect the ability of the target group to comply with the rule.

In some policy areas material has been developed by Member States, often in co-operation with the Commission services, to help you to assess compliance issues. One example is the checklist developed by IMPEL (EU Network for Implementation and Enforcement of Environmental Law). This covers questions relating to choice of legislative instrument, practicability of compliance for the target group, and the enforceability of legislation. The Internal Market Information system (IMI) provides an example of networking to support effective application of the law.
The evaluation of implementation, management and enforcement issues in the IA should lead to appropriate provisions being included both in the legislative proposal and the implementation plan that should accompany the proposal (contact the unit for Application of Community Law in the Secretariat General for further guidance).

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