Transposition

Last updated on

November 24, 2023

Gavel and legal books on wooden table, collage with european union flag — Image

In brief

The transposition of European directives into Belgian law is coordinated on a political level by the Minister of European Affairs and consequently on an administrative level by the FPS Foreign Affairs (DGE/E1). Directorate E1 works closely with the other Belgian authorities, in view of the fact that in Belgium – in accordance with the principle of federal loyalty – each authority is responsible for the transposition of European directives within its own area of competence.

The European Commission closely monitors this transposition process and, in the event that transposition is delayed, incomplete or is carried out incorrectly, can open a case against an EU Member State in an informal manner by means of the SOLVIT and EU Pilot tools or in a formal manner by initiating an infringement procedure. If not concluded successfully, an infringement procedure can lead to a referral to and a judgment by the EU Court of Justice, which can condemn the conduct of the EU Member State and, in some cases, impose financial penalties.

An overview of the current status of transposition in Belgium can be found here.

Transposition of European directives into Belgian law

European 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. Directives must therefore be transposed into national law, which makes them different from other European legislative texts, such as regulations.

Whenever a directive is published in the Official Journal of the European Union, Member States must bring into force the laws, regulations and administrative provisions necessary to comply with the directive within the transposition period.

As the ‘guardian of the European treaties’, the European Commission is responsible for monitoring the transposition process for all directives in all EU Member States. As part of that monitoring activity, the European Commission publishes the Single Market and Competitiveness Scoreboard twice a year. The Scoreboard measures the performance and results of the internal market in different policy areas using a variety of tools. As such, it provides an overview of how well the internal market is functioning. Amongst other things, the Scoreboard contains details concerning the status of the transposition of EU directives into national law within each Member State. A key indicator that forms part of the Scoreboard is the transposition deficit, in other words, the number of internal market directives not transposed by a Member State out of the total number of internal market directives in force. The Commission allows a maximum transposition deficit of 1%.

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. The Minister of European Affairs has a coordinating role in this regard, which, on an administrative level, is expressed within the Directorate of European Treaties and Institutions (E1). They, in collaboration with the competent federal and federated entities, strive to achieve a transposition deficit that lies within the Commission's standard. To this end, the Directorate is in close contact with Permanent Representation of Belgium to the EU

EU Pilot is an informal and confidential online system of information exchange between the European Commission and the Member States. It deals with the conformity of national law with EU law, based on complaints and requests for information from citizens and businesses, with investigations initiated directly by the European Commission itself and with questions raised with SOLVIT, the European mediation network for citizens and businesses. If no solution or consensus can be found using the EU Pilot system, the European Commission can initiate an infringement procedure.

In the event that the application or enforcement of a directive is delayed, incomplete or transposed incorrectly, the European Commission is entitled to initiate a formal infringement procedure. In accordance with the approach outlined above, the Member States have an opportunity to satisfy any grievances expressed by the Commission. If no consensus follows, the Commission can refer the Member State concerned to the EU Court of Justice. Belgium is represented before that Court by the Directorate of European Law (DGJ/J2). In some cases, the Member State may be ordered by that Court to pay large financial penalties.