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Enforcement in the Eu Single Market

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Enforcement in the Eu Single Market ENFORCEMENT IN THE EU SINGLE MARKET JACQUES PELKMANS AND ANABELA CORREIA DE BRITO WITH A FOREWORD BY MALCOLM HARBOUR CHAIRMAN, INTERNAL MARKET AND CONSUMER PROTECTION COMMITTEE EUROPEAN PARLIAMENT CENTRE FOR EUROPEAN POLICY STUDIES (CEPS) BRUSSELS The Centre for European Policy Studies (CEPS) is an independent policy research institute in Brussels. Its mission is to produce sound policy research leading to constructive solutions to the challenges facing Europe. The views expressed in this book are entirely those of the authors and should not be attributed to CEPS or any other institution with which they are associated or to the European Union. This study was conducted for Nordic Innovation, an official organ of the Nordic Council of Ministers, and also served as an input for a parallel study conducted by CopenhagenEconomics during the Danish Presidency for Nordic Innovation. The authors are grateful for the permission given by Nordic Innovation and CopenhagenEconomics to publish their contribution. Jacques Pelkmans is Senior Research Fellow at CEPS and Anabela Correia de Brito is a Research Fellow. The authors are grateful to Amarilys Verhoeven, Head of Unit responsible for the “Your Europe Advice” portal and the SOLVIT network at the European Commission and Anouska Janssens, team leader of SOLVIT at the European Commission, Giuseppe Casella, Head of Unit responsible for the notification of technical regulations at DG Enterprises, and Kamila Skowyra and Sigrid Brettel, both legal officers at DG Enterprises, for their helpful cooperation throughout the research. ISBN 978-94-6138-225-2 © Copyright 2012, Centre for European Policy Studies and the authors. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means – electronic, mechanical, photocopying, recording or otherwise – without the prior permission of the Centre for European Policy Studies. Centre for European Policy Studies Place du Congrès 1, B-1000 Brussels Tel: (32.2) 229.39.11 Fax: (32.2) 219.41.51 E-mail: [email protected] Internet: www.ceps.eu TABLE OF CONTENTS Foreword by Malcolm Harbour ......................................................................... i Executive Summary .......................................................................................... iii 1. Introduction ................................................................................................ 1 2. Defining and Confining ‘Enforcement Barriers’ ...................................... 3 2.1 About ‘barriers’ and enforcement of single market law .................. 3 2.2 Enforcement failures: Barriers and distortions ................................. 7 3. Typology of EU Enforcement Barriers .................................................... 11 4. The Landscape of EU Enforcement Efforts............................................. 16 5. Pre-Infringement Initiatives .................................................................... 18 5.1 The SOLVIT network ........................................................................ 20 5.1.1 Background and functioning of the SOLVIT network ......... 20 5.1.2 Performance of the SOLVIT Network in 2011....................... 24 5.1.3 An overview of the SOLVIT business cases .......................... 33 5.1.4 SOLVIT-Plus cases and Art. 258 TFEU .................................. 43 5.1.5 SOLVIT and EU Pilot .............................................................. 43 5.2 The European Consumer Centres Network .................................... 46 5.3 Commission Scoreboards ................................................................. 48 6. Formal Infringement Procedures ............................................................ 54 6.1 The ‘classical’ EU administrative procedure for enforcing EU law ................................................................................................ 54 6.2 Stages of the infringement procedure of EU law ............................ 58 6.2.1 The administrative stage......................................................... 59 6.2.2 Pre-litigation stage .................................................................. 64 6.2.3 Judicial stage ............................................................................ 74 7. Enforcement Barriers in Intra-EU Cross-Border Public Procurement .. 77 7.1 Factors influencing cross-border procurement tenders and awards ....................................................................................... 77 7.2 How the EU disciplines national and regional public procurement ..................................................................................... 79 7.3 Implementation and application of EU public procurement law . 85 7.4 The remedies Directive (2007/66/EC) - National review and the possibility of remedies for improper treatment of bidders ..... 90 7.5 The European Commission’s new legislative proposals ............... 95 8. Preventive Approaches ............................................................................ 98 8.1 Regulatory impact assessment ......................................................... 99 8.2 Training member states’ officials and judges in EU law ...............101 8.3 Regular consultation between those member states’ officials negotiating a directive and those (later) responsible for implementation and enforcement ...................................................101 8.4 Disciplining member states in respecting mutual recognition .....102 8.5 Joint EU and member state ownership of implementation ..........105 8.6 Developing the IMI system of inter-member-states’ administrative cooperation .............................................................106 8.7 Selective shift from internal market directives to EU regulations ..................................................................................107 8.8 EU prevention of new technical barriers (Directive 98/34/EC)...108 8.8.1 A credible discipline of national technical regulation .........108 8.8.2 The amazing record of 98/34: Empirical trends ..................110 8.8.3 The most recent empirical evidence on 98/34 .....................114 8.8.4 Proven prevention, empirical evidence for 2010 and 2011 .116 8.8.5 Sectoral technical barriers, prevented (2010, 2011) ..............118 8.8.6 Further analysis of 2010 TRIS notifications 98/34 issued with a detailed opinion by the Commission ........................120 9. Reducing Transaction and Information Costs ..................................... 122 10. Recommendations .................................................................................. 125 Bibliography ................................................................................................... 132 Annexes .......................................................................................................... 135 I. Breakdown by sector of the draft regulations notified by the member states of the EU in 2011 ......................................................135 II. Breakdown by sector of the draft regulations notified by the member states of the EU in 2010 ......................................................136 III. Detailed opinions issued by the Commission in 2010* ...................137 List of Figures Figure 1. Enforcement failures: Barriers and distortions ...................................... 9 Figure 2. Enforcement of single market law ......................................................... 16 Figure 3. Total number of cases submitted to SOLVIT and to the ‘Your Europe Advice’ (YEA) portal, 2003-11 ....................................... 23 Figure 4. Resolution rates of the SOLVIT cases during SOLVIT’s mandate, 2003-11 ....................................................................................................... 26 Figure 5. Number of cases submitted to and received by the national SOLVIT centres, 2010-11 ......................................................................... 27 Figure 6. 2011 SOLVIT cases by area ..................................................................... 28 Figure 7. Number of business cases requesting support from SOLVIT, 2007-10 ....................................................................................................... 33 Figure 8. Closed SOLVIT business cases by area, 2011 ....................................... 35 Figure 9. Outcome of taxation-related business cases handled by SOLVIT, 2011 ............................................................................................................ 36 Figure 10. Outcome of business cases in the area of free movement of goods handled by SOLVIT, 2011 ........................................................... 37 Figure 11. Solution rate of SOLVIT business cases in the area of freedom to provide services, 2011 ............................................................................. 40 Figure 12. Average transposition deficit from November 2007 to November 2011 ............................................................................................................ 50 Figure 13. Infringements in the implementation process of the EU law ............ 57 Figure 14. Formal enforcement in case of infringement ....................................... 59 Figure 15. Closure decisions adopted in 2010 by stage (in percentage) ............. 63 Figure 16. Number of steps taken in infringement proceedings in each year (2006 and 2010) ......................................................................................... 66 Figure 17.
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