What is Effective Implementation of EU Law?
| Author | Phedon Nicolaides,Maria Geilmann |
| DOI | 10.1177/1023263X1201900305 |
| Published date | 01 September 2012 |
| Date | 01 September 2012 |
| Subject Matter | Article |
19 MJ 3 (2012) 383
WHAT IS EFFECTIVE
IMPLEMENTATION OF EU LAW?*
P N** and M G***
ABSTRACT
Article197 TFEU refers to the ‘e ec tive implementation of Union law by the Member States’.
Yet, neither the TFEU, nor the case law de ne the concept of ‘e ective implementation’.
e purpose of this article is to extract from the case l aw possible meanings and relate
them to speci c actions that mu st be taken by the Member States. e judgments of the
Court of Justice on infringeme nts by Member States point towards certain ele ments and
practices which are indispensable for the proper application of EU law. It is possible to
place these inferred elements and practices into categories conce rning methods (such as
for example use of objective cr iteria, evidence-based decision making ), procedures (for
example decisions have to be motivated and explained, implementation procedures have
to be open and transparent), institutional structures ( for example separation of functions
such as assessment and enforcement) and outcomes (for example preference for the lea st
restrictive or the leas t distortive options).
Keywords: e ective implementation; e et utile; principle of equivalence; remedies ; rights
for individuals
§1. IN TROD UC TI ON
Article 197 of the Treaty on the Functioning of the Eu ropean Union (TFEU) provides
that 1) ‘E ective implementation of Union law by the Member States, wh ich is essential
for the proper functioning of the Union, shal l be regarded as a matter of common
* e article was wr itten while the aut hors were at the European Institute of Publ ic Administ ration.
We are grateful for com ments and suggestions we have received f rom Ioana Eleonora Rusu, omas
Biermeyer, two anonymous re ferees and part icipants of a Lisboan Ne twork Workshop on Policy
Implementation a er Lis bon that was organiz ed by EIPA on 29February 2012 in Brus sels.
** College of Europe.
*** Maastricht University.
Phedon Nicolaides and M aria Geilman n
384 19 MJ 3 (2012)
interest’. e same article also empowers t he EU to adopt measures to facilitate e ective
implementation by the Member States: 2) ‘ e Union may support the e or ts of Member
States to improve their admin istrative capacity to implement Union law’.
e TFEU refers to ‘e ect ive implementation’ only twice: in Art icle 197 and in
Article83 on judicial cooperat ion in criminal matters. In neit her of the two articles does
the Treaty de ne what e ective implementation may mean. It seems that Ar ticle 197
TFEU, which was inserte d a er the Treaty of Lisbon, has been used as a legal basis
for secondary legislation only once so fa r.1 It appears as one of the legal bases in a
Commission proposal for an inform ational campaign and train ing of national o cials.
As Article197 TFEU explicit ly links the proper funct ioning of the EU to the e ective
implementation of its law at the national level, it is importa nt to consider what e ective
implementation actual ly means. Since the Treaty does not provide a ny explanation of
what might be understood by the term ‘e ective implementation’, the purpose of this
paper is to infer its possible mean ing from the case law of the Cou rt of Justice of the
European Union and EU legal act s.
is paper is divided i nto ve sections. A er this introduct ion, Section 2 de nes
the methodology a nd the approach that has been chosen to tack le the issue of e ective
implementation. Section 3 exam ines references to e ective implementation in t he case
law. Section 4 reviews secondar y legislation. Section 5 brings toget her the ndings of
previous sections and d raws a number of conclusions.
Our main ndings are as follows. Firstly, there appears to be no formal de nition of
the concept in question either in seconda ry legislation or the case law. Secondly, despite
this, one can nd ma ny rules and descriptions, mos tly in the case law, and to a much lesser
extent in secondary legislation, of what may be regarded as components or attributes of
e ective implementation of law. irdly, e ective implementation can refer to methods,
procedures, outcomes or institutional st ructures. Four thly, e ective implementation of
law has signi cant aspect s which are not legal. at is, the method by which a public
authority ver i es that the law it applies indeed achieves its stated objec tives can be
economic, statistica l or be based on other forms of ana lysis. Fi hly, a law or policy can
be said to be e ectively implemented when the responsible authorit y has done both what
the law explicitly requi res and whatever else can be reasonably argued that is ne cessary
and falls w ithin the scope of the law, being explicitly requi red by the law.
§2. METHODOLOGICAL CONSIDERATIONS
e question posed in the tit le of this paper appears si mple. In fact, initial re search
showed that it would be exceedingly di cult to provide an answer. is is because there
1 Commission Propo sal for a Regulation of t he European Parlia ment and of the Council E stablishing for
the Period 2014 to 2020 the R ights and Citize nship Programme, C OM(2011) 758 nal.
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