The policy of Belgium within the EU

In brief

The service coordinating the transposition process and infringement procedures comes under the FPS Foreign Affairs, and more specifically within the Directorate EUR1 of the Directorate-general European Affairs. The Directorate works closely with the other Belgian entities. In Belgium, in accordance with the principle of federal loyalty, each authority is responsible for the transposition and infringement procedures within its own area of competence.

The European Commission closely monitors this transposition process and, in the event of the late, incomplete or incorrect application of European law, the Commission may engage in an informal dialogue with a Member State (pre-infringement dialogue) or formally launch an infringement procedure. If no solution can be found at this stage, the Commission will refer the Member State to the EU Court of Justice. A conviction may result in heavy financial penalties.

Monthly overview of the current status of transposition of European directives into Belgian law.
 

Transposition of European directives into Belgian law

Under the ordinary legislative procedure, the European Commission takes the initiative to draft a proposal for new EU legislation and consequently also determines the type of regulation. Negotiations then take place, in which the DG EUR is responsible for formulating the Belgium's position within the Council.

The final implementation depends on the type of regulation. For example, directives are binding as to the result to be achieved, but national authorities have the power to choose the form and the means by which that occurs. To achieve this objective, Member States must therefore transpose the directives. This requirement makes them different from regulations, which are in theory directly applicable.

To streamline this process, the Minister of European Affairs was assigned the role of coordinator. At the administrative level, this task is carried out by the FPS Foreign Affairs (DG EUR1). To this end, a network of Eurocoordinators was established: a SPOC within each federal administration and federated entity, responsible for keeping the state of play up to date and reporting it to DG EUR1, enabling to produce a Belgian overview.

The transposition of directives is of great importance as a means of ensuring legal certainty for European citizens and businesses. However, the nature of the various legal instruments and the institutional structure of Belgium mean that transposition is a complex process.

Consequently, the entities that may be responsible for transposition carry out an initial analysis of their competences as soon as the Commission publishes a proposal for a directive. This enables them to be closely involved in the negotiations and anticipate the future transposition. A second analysis follows upon publication of the directive in the Official Journal of the European Union. In the case of a cross-cutting directive where several entities are competent, the entity with primary responsibility takes on the role of pilot.

During the negotiation phase, a transposition deadline is set, within which all Member States shall bring into force the necessary laws, regulations and administrative provisions to comply with the directive. This period is usually two years, but it may also be limited to six months or extended to four years.
 

Infringement of European law

In case of presumed infringement of European law, the Commission may take informal or formal measures. For example, the pre-infringement dialogue is a tool for information exchange at technical level between the European Commission and the Member States. It assesses the conformity of national law with EU law, based on complaints and requests for information from citizens and businesses, investigations initiated directly by the European Commission itself, or questions raised with SOLVIT, the European mediation network for citizens and businesses. If no solution or consensus can be found through the pre-infringement dialogue, the European Commission will initiate the formal procedure.

If the Commission considers that a Member State is failing to fulfil its European obligations, it will initiate an infringement procedure. A distinction is made between four categories of infringement :

• Failure to transpose or late transposition: a Member State does not notify the Commission of its measures to turn a directive into national law, or not on time;
• Incorrect implementation of...
  • Directives: the Commission considers that a Member State's law is not in line with the requirements of EU directives.
  • Other EU law: the Commission considers that a Member State's law is not in line with the requirements of the EU treaties, regulations or decisions.
• Non-application or incorrect application: EU law is not applied correctly, or not applied at all, by the national authorities.

The Commission launches an infringement procedure by sending a letter of formal notice reminding the Member State concerned of its obligations. This may be followed by a reasoned opinion containing a formal request from the Commission to comply with EU legislation.

If no consensus or solution follows, the Commission may refer the Member State to the EU Court of Justice. The directorate European Law (DG JUR2) then takes over the case and represents Belgium before the Court. In some cases, a conviction may result in heavy financial penalties.
 

Follow-up on the state of play

At the Belgian level, the Minister for European Affairs reports monthly to the Council of Ministers and to each ordinary consultation committee. Each year, Minister Prévot also gives a speech to the Federal advisory committee on European Affairs.

Moreover, the Commission publishes the Single Market and Competitiveness Scoreboard once a year. A mid-term review is conducted in June, while the official closure takes place in December, accompanied with a press release. The scoreboard measures the performance and results of the single market in different policy areas using a variety of tools. As such, it provides an overview of how well the internal market is functioning. One of the indicators used is the transposition deficit: the number of single market directives that a Member State has failed to transpose on time, measured against the total number of single market directives in force. The Commission currently allows a maximum transposition deficit of 1%. However, this does not provide a complete overview, as directives that fall outside the scope of the single market – such as those on migration and cybersecurity – are not included. The figure relating to infringement procedures is therefore also incomplete.

For a complete overview, please refer to the following websites:

• State of play of the transposition of European directives into Belgian law (monthly overview).
• Website European Commission with up-to-date state of play per Member State relating to transposition, infringements and pre-infringement dialogue
• Search tool of the European Commission for infringement cases

If you are an expert working for a federal or federated entity which is involved in a transposition or infringement, you can contact eurtransbel@diplobel.fed.be to receive the supporting documents. A training course is organised twice a year via the FPS BOSA. You can register via the website of BOSA (in French and in Dutch).