Articoli
13/06/2016
Corporate & Commercial - Diritto Amministrativo, Pubblico Comunitario

Why the Italian System for implementing EU Directives doesn’t work: some considerations for implementing a Better Way

Infringement Procedures against Italy (IPS) for late or bad implementation of EU Directives are many, too many, also if during the last 10 years this number has been reduced: in 2006 the Infringement Procedures were 260, in 2013 180, now 82 . To this “physiological” number must be added the “system” of the Pilot Cases, that was introduced by the European Commission in 2011 and that consists in a sort of “pre-communication” of the opening of proceedings. Currently there are about 20 Italian Pilot Cases.
An important contribution to the reduced number of IPS comes from a new way of managing the implementation of Directives. In fact, a data-base was introduced by the Government in 2007-2008 and a Group of Experts of the Presidency of the Council of Ministers which collects periodically and accurately the documents coming from the EU Institutions. This avoids the shunting of information into separate departments in different ministries. The result has been less downtime and more action.
Nevertheless the problem remains: Italy needs a “Better Way” for introducing and implementing European Union Law into national law. This derives from many problems and it is the main reason for the opening of the IPS.
But why doesn’t Italy comply immediately with the EU law? The reason is mostly political: while Italy has an European vocation, Ministers and High Level bureaucrats were always not up to the technicalities required for implementing detailed rules.
If these problems could, at first, be considered only “political”, at the same time they can explain the low level of good transposition of EU law into national law.

Pacta sunt servanda is a basic principle of domestic and international law. It is a principle on which modern States and the international community rely heavily in order to secure the achievement of important policy objectives such as arms control, free trade and sustainable environment. Any system based on parties agreeing on a set of mutual obligations works only if those agreements are fulfilled.

The European Union is above all a community of law. Legal integration is probably one of the most defining features of European integration and it is intensively studied by the academic community. Indeed, almost on a weekly basis, EU legislators adopt laws that require national authorities to take measures to comply with their obligations.

To what extent do Member States comply? And if they don’t, what explains noncompliance? The literature abounds with explanations but there are relatively few mega studies.

Compliance with the deadline to transpose EU Directives in Member States

Since 1984 (during the negotiation of the Single European Act, signed in 1986), the Commission has yearly reported to the European Parliament on the number and quality of state infringements which it has detected or which have been referred to it by third parties. This information, along with the administrative and legal measures taken by the Commission and the European Court of Justice, on the basis of Article 226 EC (now 258-260 TFEU), are collected in the Annual Report on Monitoring the Application of Community Law.

It can be seen from these reports that noncompliance is a systematic and pathological problem. That being said, the number of infringement proceedings plummeted during the 1990s and it stabilised on an average of more than 1000 formal proceedings initiated per year.  Additionally, noncompliance, when it has set in motion the infringement procedure, has not increased over time and has remained a temporary phenomenon. A minority of cases are referred to the ECJ and none of its rulings on noncompliance have been permanently ignored by the member states so far.
Some Authors and observers [1] highlight the existence of a delay in transposition which is not immediately apparent from the Official Commission Statistics. It was pointed out that about 60% of the directives adopted between 1995 and 1998 have been transposed late in the Netherlands, even though the cumulative backlog of not-notified directives as of 31 December 1992 was a mere 4%.
In this frame we distinguish between two categories of variables that have been used to explain noncompliance: those that emphasise some intentional opposition against the content and effects of the law and those that emphasise capacity-related issues.
Compliance with the deadline to transpose EU Directives in Italy
On the basis of this examination of noncompliance in Member States, we approach now the problem in Italy, especially from the legislative point of view.

The negotiation and transposition of Directives and Regulations: the Italian way
Law 234 of 2012 radically changed the way Community law is implemented in Italy, by making transposition more timely and effective. The implementation of EU directives and framework decisions is separated from the implementation of other EU Acts and Documents and international Treaties. The older “Community Bill”, that was introduced in 1989 at the end of each year and included provisions to implement EU legislation was divided into two separate legislative instruments.

 

A European Delegation Bill is introduced by the Government by 28 February each year, and includes legislative delegation for the implementation of Directives. If necessary, a further European Delegation Bill may be introduced by 31 July. In conjunction with such measure, the Government shall introduce a Yearly Report on the development of the European Integration Process, Italy’s participation in the European law-making process and the implementation of economic and social cohesion policies.
In conjunction with the European Delegation Bill, or even independently of it, the Government may introduce a European Bill, including all amendments to current proceedings or rulings of the Court of Justice, as well as measures for the implementation of other EU acts and of international treaties negotiated and signed by EU.

According to this law, the Government has specific duties to provide information to both houses of the legislature. They consist in the obligation to transmit acts and documents and the obligation to communicate information. The European Commission also delivers consultation documents and its legislative proposals directly to the national parliaments (see TFEU). The legislative instruments and acts of the European Union are object of the work of the appropriate parliamentary Committee for considerations and to the Committee for EU Policies for its opinion. The relevant Committees may formulate observations and adopt policy-setting instruments for the Government.
With the coming into force of the Lisbon Treat, Parliaments can send reasoned opinions to the European Institutions concerning whether draft EU legislative instruments conform to the principle of subsidiarity (the so-called “early-warning system”).

Law 11 of 2005 introduced the parliamentary scrutiny reserve. This may be applied on the initiative of one of the two Houses of Parliament or of the Government, in relation to every EU measures or draft measure that the Government is under a duty to transmit to the two Hpouses. As of 2000, on the basis of a procedure suggested by the Committee on the Rules of Procedures, the Chamber of Deputies has examined the legislative programme of the European Commission and the political programme of the Council (The Semester Presidency Programme). In respect of European Affairs, Parliamentary Committees may use all ordinary instruments of enquiry, policy-setting and control provided for the Rules of Procedure (hearings, fact-finding enquires, questions and interpretations, resolutions and motions).
Regarding the Senate, under Senate Rule 144-bis, the Delegation Bill and the Government’s Yearly Report should be introduced simultaneously before the EU Policy Committee and any other committee having jurisdiction over the subject matter therein dealt with. The two documents are considered together, until the Delegation Bill and the resolution on the Yearly Report are passed by the Senate.
Therefore, a number of factors explain Italian noncompliance in transposing EU directives in Italy: tortuous procedures, no clear and transparent regulations, mixed and concurrent powers between Central Government and Regional and Local Authorities.
The Assembly has a non-identified role; the Government sharing its powers between Sectorial Ministries, Foreign Affairs Ministry, Presidency of the Council of Ministers, European Department and the Italian Permanent Representation to the EU. Each of these Entities plays a non-coordinated role so that the Italian proposal become weak, confused and not up to the importance of a Founder Member State.

 

[1] Mastenbroeck E. (2003), Surviving the Deadline : The Transposition of EU Directives in the Netherlands, in “European Union Politics”, n.4, pp.371-395

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