Annexes to COM(2020)94 - Commissiemededeling langetermijnactieplan voor een betere uitvoering en handhaving van de regels inzake de eengemaakte markt

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dossier COM(2020)94 - Commissiemededeling langetermijnactieplan voor een betere uitvoering en handhaving van de regels inzake de eengemaakte markt.
document COM(2020)94 EN
date March 10, 2020
agreement on the regulation has been achieved. Implementation workshops will be carried out to assist Member States with the implementation of such provisions required under regulations well before the entry into force of the relevant provisions 24 .

III    Making the best use of preventive mechanisms

The prevention of national measures contrary to EU law in the Member States will help to ensure a level playing field for citizens and businesses in the single market and avoid lengthy infringement proceedings. For example, making the best possible use of existing notification tools for such measures will foster compliance with EU rules.

üACTION 9: Improving ex-ante assessments of restrictive regulation under the Proportionality Test Directive

In order to prevent the creation of new restrictions in national regulation the Commission will provide assistance and guidance to Member States and facilitate the exchange of best practices between Member States on ex ante proportionality assessments on the basis of the Proportionality Test Directive 25 , which obliges Member States to assess thoroughly the proportionality of new national professional regulation before its adoption.

üACTION 10: Streamlining the operation of the single market Transparency Directive

In line with the more strategic approach for the Commission´s enforcement actions 26 , the future implementation of the single market Transparency Directive 27 will be built on four axes: (i) Member States notify all draft technical regulations concerning goods and information society services; (ii) the Commission will follow up on all notifications raising concerns as to the their compatibility with EU law; (iii) in calibrating its follow-up, the Commission will pay particular attention to measures having the highest impact on the single market; (iv) the Commission will monitor legislation which was subject to a Commission reaction under the Directive and which, in the absence of appropriate adjustments, may give rise to infringement proceedings.

The Commission will also encourage national authorities to react to the notifications made by other Member States, to set a frame for regular contacts among national regulatory bodies and the authorities in charge of implementing the single market Transparency Directive and promote regulatory convergence of national regulations. Should the existing level of harmonisation prove to be insufficient, the Commission will carefully analyse whether greater harmonisation is warranted at European level.

üACTION 11: Preventing new barriers to providing services in the single market

To prevent unjustified barriers in the services single market, the Commission invites the European Parliament and Council to proceed with a speedy adoption of the legislative proposal for a new Services Notifications Directive. 28 Pending the adoption of the proposal, the Commission will take steps to ensure that Member States comply with the existing notification obligation under the Services Directive in order to identify and eliminate new potential regulatory barriers.

üACTION 12: Unlocking the full potential of the notification mechanism under the e-commerce Directive

While Member States that restrict the freedom to provide cross-border information society services in a justified and proportionate manner must notify the national measures restricting that freedom to the Member State of establishment and to the Commission, the full potential of this notification mechanism under the e-commerce Directive 29 still needs to be unlocked. Possible measures to improve the cooperation between Member States as well as the tools under the notification mechanism will be analysed as part of the preparatory work on the Digital Services Act.

IV    Detecting non-compliance inside the single market and at the external borders

When national rules have already been adopted and entered into force, preserving the smooth functioning of the single market requires that national authorities and the Commission are able to detect non-compliance. To this end, the Commission and the Member States’ authorities need to have the tools that improve their capacity for detection, investigation and swift information sharing.

üACTION 13: Rationalising single market IT systems and setting-up a platform for online enforcement (e-enforcement lab)

The Commission and Member States use several IT systems to share information about illegal and non-compliant industrial and consumer products. To reduce the fragmentation of IT systems 30 used to share information about illegal and non-compliant industrial and consumer products, the Commission will:

oestablish a single European information entry point for authorities for controls on non-food products, where the existing systems such as ICSMS and RAPEX and the forthcoming Customs Single Window will be reachable and there will be targeted data exchange among the systems according to the applicable legislation;

otogether with the Member States, ensure that the Internal Market Information system (IMI) becomes the default tool for administrative cooperation within the single market, making use of data and information available, and evaluating how administrative cooperation works in certain single market areas;

ocreate a single market obstacles tool under the Single Digital Gateway taking into account experience under Lighten the Load 31 , allowing citizens and businesses to report anonymously on regulatory obstacles encountered by them in exercising their internal market rights;

otogether with the Member States, make full use of the information management system for official controls (IMSOC) for improving enforcement in relation to EU agri-food legislation (including animal and plant health). IMSOC will connect and allow the exchange of information between the relevant existing information systems (iRASFF 32 , ADIS-exADNS 33 , EUROPHYT 34 , TRACES 35 );

oexplore whether a laboratory funded under the single market Programme or the Digital Europe Programme to test and apply advanced IT solutions can be integrated into or linked to existing structures, such as the Consumer Protection Cooperation Network, the EU Product Compliance Network or the EUIPO observatory.

üACTION 14: Strengthening the fight against counterfeit and illegal products

The Commission and the European Anti-fraud Office (OLAF) work with national authorities in Member States and third countries in the framework of mutual administrative assistance cases of illicit imports/exports and contribute to preventing illicit products from entering the single market.

Today, illicit products are not only imported into the EU, but also produced or assembled from imported components inside the EU and subsequently placed on or traded in the single market. However, OLAF cannot intervene in such cases because its current mandate does not cover intra-EU cases.

In order to strengthen the enforcement of intellectual property rights and of prohibitions or restrictions to place illegal or counterfeit goods in the single market, the Commission and Member States could draw inspiration from the rules on mutual administrative assistance in customs matters, as well as consider expanding the mandate of OLAF.

üACTION 15: Strengthening enforcement in the agri-food chain

Safe, sustainable food and its free movement is an essential aspect of the internal market. This contributes significantly to the health and well-being of citizens and to their social and economic interests.

While the Member States are responsible for checking that operators comply with EU law, the Commission carries out about 220 'on-the-spot' audits annually in Member States and non-EU countries to verify that control systems are effective and authorities fulfil their legal obligations. The Commission will step up its enforcement of the application of EU law in the agri-food chain, including through targeted audits and their systematic follow-up to verify that shortcomings are addressed by the Member States.

The Commission will also continue to support Member States through its “Better Training for Safer Food” training programme for the staff of public administrations with a view to improving the implementation of EU rules.

Food fraud incidents can undermine consumer confidence in the EU food system and impact on the functioning of the internal market. For these reasons, the Commission will step up EU efforts to tackle agri-food fraud as part of the Farm to Fork Strategy.

üACTION 16: Development of labelling and traceability systems

Traceability is key to enforcement. Labelling and traceability systems can only work if the information carried along the product supply chain allows for automated compliance checks at customs. The Commission, in cooperation with Member States, will explore and promote the use of digital tools to allow for more targeted controls at the external borders and within the EU. This includes the development of labelling and traceability systems (such as QR codes, RFID, block chains, etc.) to carry specific compliance-related information along the supply chain in a secured manner, taking into account existing instruments such as the European Product Registry for Energy Labelling (EPREL). New customs equipment capable of reading and checking the encoded information will be developed with the financial support for customs control equipment, as part of the Integrated Border Management Fund 2021-27. Traceability issues will be also assessed during the revision of the General Product Safety Directive.

The Commission will seek the digital submission of compliance information for industrial and consumer products (i.e. the already existing ‘EU declaration of conformity’) declared for ‘release for free circulation’ at customs. In doing so, the Commission will also assess the impact on SMEs, and specifically micro-enterprises, in order to identify the necessary mitigation measures.

Furthermore, in the framework of the new Consumer Agenda, labels and traceability will play a key role to empower the consumers in the green and digital transitions. The Commission will identify the best uses of digital tools in order to provide consumers with the most reliable information to make informed and confident purchases, particularly for cross-border shopping.


V    Strengthening enforcement on the ground

In spite of all efforts to establish a culture of single market compliance, regulatory obstacles resulting from non-compliance require an effective ex post intervention. Also in this phase, cooperation between Member States authorities and Commission is of utmost importance.

üACTION 17: EU Product Compliance Network

Many non-compliant products are still made available to consumers, often via online channels, putting consumers and professional end-users at risk and distorting competition. In order to strengthen the coordination between market surveillance authorities in the non-food sector, provided for in Regulation 2019/1020 36 , the Commission, in cooperation with Member States, will set up the EU Product Compliance Network as from January 2021. It will consist of the single liaison offices recently created by Member States to represent their market surveillance authorities. In addition, the Commission will monitor, as from July 2021, the operation of the mutual assistance mechanism set out by the Regulation, and will identify areas where the refusals by Member States of requests for information on compliance and requests for enforcement measures in the case of non-compliance were not justified.

üACTION 18: Making SOLVIT the default tool for single market dispute resolution

Different problem-solving tools cover legal areas, which would normally fall into the SOLVIT mandate 37 , thus fragmenting the enforcement landscape. The Commission and Member States will ensure that SOLVIT is reinforced to become the default alternative dispute resolution tool in all single market policy areas, which involve a decision by an administration. SOLVIT will be used in its current form or its model adapted, if needed, to fit the requirements of the new initiatives. The Commission and Member States will strengthen the relationships between SOLVIT and different bodies and networks at national and EU level.

This is already foreseen for the European Labour Authority (ELA) 38 , which started its work in October 2019 and will be at full capacity by 2024. The ELA will assist the Commission and Member States in ensuring that the EU rules on labour mobility and social security coordination are enforced in a fair, simple and effective way, making it easier for citizens and business to reap the benefits of the single market. It will provide solutions in improving access to quality information for citizens and employers as regards EU and national labour mobility legislation.

VI    Improving handling of infringement cases

In case of apparent breaches of European law, the Commission will seek a dialogue with the Member States to better understand problems and find solutions. In cases where dialogue does not deliver results, the Commission will not hesitate to take strong and effective enforcement action wherever necessary. Improved working arrangements and better use of all available administrative tools as well as increased cooperation will speed up and streamline the process to bring infringements to an end.

üACTION 19: Better prioritisation of enforcement action

In order to better prioritise enforcement action, as already set out in 2016 39 , the Commission focuses its efforts on cases which have a significant impact on the single market, based on an assessment of their economic, legal and policy impacts. Building on this approach, the Commission will adopt an annual single market Enforcement Strategic Report, identifying specific areas of concern and priorities for enforcement taking into consideration the findings of the European Semester. At the same time, it is very important that the Commission is alerted to breaches of single market rules by interested parties, to get a full picture for its prioritisation. To that end, the system for submitting complaints will be revised to better integrate it with SOLVIT. The Commission will monitor SOLVIT reports to identify structural issues of potential relevance. The Commission will also study the possibility to extend to other single market policy areas the tool currently being tested on the Online Dispute Resolution (ODR) platform to assist consumers to better assess their redress possibilities.

üACTION 20: Clarity and consistency in case handling

Confidence in the enforcement system relies on complaints being examined in a timely manner and on breaches being sanctioned. To that end, the Commission will further streamline its case handling processes. It will make a preliminary assessment of complaints within two months to allow a response to the complainant. Where sufficient information has been gathered, this should already include a clear decision on whether 1) the complaint will not be pursued; 2) it will be transmitted to resolution bodies such as SOLVIT; 3) dialogue will start between the Commission and the Member State concerned; or 4) an infringement procedure will be started immediately.

üACTION 21: Better use the EU Pilot system

The EU Pilot system is a useful tool for obtaining information in the phase of dialogue with Member States at the pre-infringement stage. In order to better target and structure the system as a rapid and effective tool supporting the solution-oriented dialogue with the Member States, the Commission intends to use the EU Pilot under clear conditions and timetables, for cases for which a quick solution within a short period appears attainable.

The Commission will:

odevelop clear and objective criteria to identify when EU Pilot should be used;

owork together with the Member States to identify pragmatic solutions to speed up the process, while preserving the essential rights of the two parties in dialogue and making good use of the available state-of-the-art systems;

ofind more flexible modes of exchange to solve complex issues

okeeping the balance with the confidentiality relationship between Commission and Member States, share information on the issues resolved via EU pilot (in an aggregate form) with a view to disseminating best practice 40 .

üACTION 22: Systematic periodic package meetings

Written exchanges in infringement procedures (the basis for a subsequent possible Court procedure) do not always sufficiently address all available solutions. To complement these formal exchanges with direct contacts, the Commission will envisage package meetings with individual Member States dedicated to specific policy areas. These may help to find solutions in compliance with EU law and should therefore take place regularly, whenever necessary. With careful preparation, they can effectively end misunderstandings and harness EU and national expertise to find solutions. Package meetings could be combined or organised together with other meetings with Member States (e.g. compliance dialogues).

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CONCLUSION

Promoting a culture of compliance needs a strong political commitment to the single market and the effective implementation of its rules. It requires political ownership, transparency as well as efficient systems in place to encourage and monitor compliance.

This Action Plan responds to the call for action by Member States and takes the initiative in addressing the existing implementation and enforcement challenges faced today. The actions tackle a range of different problems covering all phases and areas of possible implementation problems and enforcement activities on both EU and national level, resting on a joint commitment at local, regional, national and EU level. Through these actions the Commission and the Member States will allow the single market to propel our businesses and to offer the best choice to consumers. Working together, we can make the single market work for all Europeans.

(1) COM(2020)102 10.3.2020
(2) COM(2020)93, 10.3.2020
(3) The Competitiveness Council Conclusions of 27 May 2019 further developed this request, asking the Commission to increase transparency and political ownership of the implementation and enforcement actions. Subsequently, Member States have repeatedly stressed the importance of enforcement, as well as the need for stronger partnership and improved cooperation with the Commission. This was also reinforced in a letter signed by all Member States and submitted at the Coreper II meeting on 29 November 2019.
(4) Højbjerre Brauer Schultz (2018), ’25 years of the European single market‘, Study funded by the Danish Business Authority.
(5) Communication “The single market in a changing world”, COM(2018)772.
(6) EP study “Europe´s two trillion euro dividend: Mapping the Cost of Non-Europe 2019-2024”, p.9-11 ( https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2019)631745)  
(7) COM(2020)103 10.03.2020
(8) See recital 5, of Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (OJ L 303, 28.11.2018, p. 69) and Articles 13(7) and 33a of Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (O.J. L 95, 15.4.2010, p. 1)
(9) See Article 17 (10) of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital single market and amending Directives 96/9/EC and 2001/29/EC (O.J. L130, 17.05.2019, p. 92).
(10) Handbook on implementation of the Services Directive: https://op.europa.eu/en/publication-detail/-/publication/a4987fe6-d74b-4f4f-8539-b80297d29715
(11) https://op.europa.eu/en/publication-detail/-/publication/a5396a42-cbc8-4cd9-8b12-b769140091cd
(12) Recital 5 of Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 (OJ L 91, 29.3.2019, p. 1), foresees that the Commission should provide non-binding guidance in relation to the case-law of the Court of Justice of the European Union on the concept of overriding reasons of public interest and how to apply the principle of mutual recognition.
(13) Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (O.J. L210, 7.8.1985, p.29).
(14) Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (O.J. L 169, 25.6.2019, p. 1). The Market Surveillance Regulation was adopted in 2019 and aims at improving the market surveillance of products in the EU.
(15) Current Blue Guide on the implementation of EU products rules 2016: Commission Notice 2016/C 272/01.
(16) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on reform recommendations for regulation in professional services, COM(2016) 820 final.
(17) Directive 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (OJ L 151, 7.6.2019, p. 70).
(18) Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October 2018 establishing a single digital gateway to provide access to information, to procedures and to assistance and problem-solving services and amending Regulation (EU) No 1024/2012 (OJ L 295, 21.11.2018, p. 1)
(19) Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 (OJ L 91, 29.3.2019, p. 1) and Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (O.J. L 169, 25.6.2019, p. 1)
(20) Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (OJ L 11, 15.1.2002, p. 4).
(21) https://ec.europa.eu/regional_policy/sources/docgener/informat/2014/action_plan_pp.pdf.
(22) Contrary to static lists reflecting the concordance of national legislation with EU legislation at the time of transposition, dynamic virtual concordance tables are digital solutions enabling a continuous update on the state of transposition including after the entry into force of the original transposition laws. Notification processes could be a source of information for these tables and facilitate keeping them up to date over time.
(23) Judgment of the Court of Justice in Commission/Belgium, C-543/17.
(24) The ongoing implementation of the Single Digital Gateway Regulation can serve as an exemplary project.
(25) Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions (OJ L 173, 9.7.2018, p. 25)
(26) Communication from the Commission “EU law: Better results through better application”. C/2016/8600 (OJ C 18, 19.1.2017, p. 10).
(27) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1)
(28) Proposal for a Directive of the European Parliament and of the Council on the enforcement of the Directive 2006/123/EC on services in the internal market, laying down a notification procedure for authorisation schemes and requirements related to services, and amending Directive 2006/123/EC and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System. COM(2016) 821 final.
(29) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') (OJ L 178, 17.7.2000, p. 1).
(30) Such as the Information and Communication System for Market Surveillance (ICSMS), the rapid alert system for dangerous non-food products (Safety Gate/RAPEX), or EPREL for energy labelling.
(31) https://ec.europa.eu/info/law/better-regulation/lighten-load
(32) Online platform for the Rapid Alert System for Food and Feed.
(33) Animal Disease Information System (ADIS) – ex Animal Disease Notification System (ADNS).
(34) Notification and rapid alert system dealing with interceptions for plant health reasons of consignments of plants and plant products imported into the EU or being traded within the EU itself.
(35) Trade Control and Expert System - online management tool for all sanitary requirements on intra-EU trade and importation of animals, semen and embryo, food, feed and plant.
(36) Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (OJ L 169, 25.6.2019, p.1.)
(37) SOLVIT deals with cross border issues caused by breach of EU law by public authorities.
(38) Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 (OJ L 186, 11.7.2019, p. 21
(39) In the Communication from the Commission "EU law: Better results through better application" (C/2016/8600).
(40) European Court of Auditors’ Special report No 5/2016: Has the Commission ensured effective implementation of the Services Directive?, 14.03.2016