Press Release - Department for Environment, Food and Rural
Affairs
Lost in Translation? Responding to the challenges of European
law
26 May 2005
Sir John Bourn, head of the National Audit Office, reported
today on the mixed success with which the Department for
Environment, Food and Rural Affairs (Defra) is transposing European
legislation uinto UK law and preparing for its implementation.
Defra deals with more European legislation than any other
government department, and its mixed success demonstrates how
difficult it is to get things right the first time. Alongside more
problematic examples, the NAO found a number of mostly more recent
cases where Defra did well. The Department needs to build on this
good practice and continue working to improve the overall quality
and timeliness of transposition through better and more consistent
management of the process, identifying and managing key risks as
far in advance as possible, and engaging specialists, including
lawyers, early on.
Defra is responsible for around 30 per cent of all legislation
coming from Europe, covering a range of topics including
environmental quality and animal welfare. The Department is obliged
to transpose European law accurately and in a timely fashion, while
balancing the needs of stakeholders in the UK and avoiding
over-implementation. The consequences of getting the balance wrong
can be serious. For example, problems in interpreting the
Regulation dealing with the removal of ozone depleting substances
from fridges led to the fridge mountains of 2002 which cost £46
million to deal with.
When the European Commission believes Defra has not acted
appropriately it will launch infringement proceedings. Defra was
the subject of 61 new infringements proceedings between 1 January
2002 and 31 December 2003. These proceedings can take a long time
to resolve and create additional uncertainty. In the case of the
Nitrates Directive, an infringement due to the misinterpretation of
the Directive by the Department lasted for almost ten years until
the Commission was satisfied that the UK had correctly implemented
the legislation. Better planning and monitoring of transpositions
may help reduce the number of infringements Defra receives from the
Commission. On the Emissions Trading Directive the Department dealt
very effectively with a short timetable by proactively managing the
consultation phase and working with the devolved administrations to
meet the deadline. As a result the UK was the only Member State to
transpose this Directive on time.
Providing more certainty where possible can help industry and
consumers, and Defra can achieve this by issuing clear and timely
guidance to those affected. In the case of the Animal By-Products
Regulation, guidance notes were issued to key industry sectors a
year after the legislation had come into force. Uncertainty also
prevents industry from preparing for changes. On the Landfill
Directive some details about waste acceptance criteria have still
to be finalised and yet these criteria come into force in July
2005. On the other hand, the Water Framework Directive provides a
good example of how Defra identified uncertainties in advance, set
out a timetable for their resolution and communicated this to key
players.
A desire to provide greater certainty needs to avoid
over-implementation. The general rule set by the Cabinet Office is
that the objectives of European Law should be achieved in a timely
manner but should not go beyond the minimum requirements unless the
benefits are greater than the costs. A dilemma for Member States is
whether "to copy-out" European legislation (by direct translation
or a simple cross-reference to the original directive) or
"elaboration" (by adding detail in the domestic legislation). The
more common approach in the UK is to elaborate as a way of
providing greater clarity and certainty.
Compared to other EU member states the UK has a good track
record in transposing European legislation. The high volume of
legislation dealt with by Defra means that improvements there will
have a significant overall effect and will provide lessons and good
practice from which other departments can learn. There are a number
of steps Defra can take to more consistently achieve the high
standards already evident in some cases looked at by the NAO. These
include:
- issuing more timely guidance to provide more certainty to those
affected by new legislation;
- adapting Programme and Project Management tools to better deal
with the phases and challenges of European legislation;
- reinforcing the value of Regulatory Impact Assessments as a
useful tool for planning and implementation;
- increasing senior management oversight of transposition and
implementation; and,
- improving co-ordination with devolved administrations to
provide a timely response to legislation.
Sir John Bourn said today:
"European laws form a large part of Defra’s work and
getting transposition wrong can be costly for government and
industry and lead to environmental damage and other adverse
effects. Defra has made improvements, particularly in the field of
programme and project management, and can point to a number of
successful cases on which to build. There is still
scope for Defra to improve the overall quality and timeliness of
transposition and taking steps such as increased senior level
oversight of the process and giving stakeholders as much certainty
as possible will help the department to achieve better and more
consistent results. "
Notes for Editors
- Transposition is the term used to describe the process by which
European legislation is turned into national law. Directives will
usually set dates by when this needs to occur.
- Infringements are issued by the Commission where: the European
law has not been transposed into national law by the deadline; the
Commission consider that the national legislation fails to
correctly give effect to the requirements of the European law or;
the Commission considers that the Member State has not fully
implemented the legislation. If the European Court of Justice finds
a Member State to have infringed its obligations under Community
law then that country could be subject to sizeable fines. To date
the UK has never been fined, however, this could change as there is
a provision in the new EU constitution to fast-track infringement
proceedings for late transposition through to fines.
- The eight pieces of legislation used as case studies for this
report were as follows: Nitrates Directive 1991/676/EEC, Landfill
Directive 1999/31/EC, Ozone Depleting Substances Regulation
2037/2000/EC, Pig Welfare Directives 2001/88/EC and 2001/93/EC,
Animal By-Products Regulation 1774/2002/EC, Water Framework
Directive 2000/60/EC, Emissions Trading Directive 2003/87/EC, and
the Environmental Liability Directive 2004/35/CE.
- Press Notices and reports are available from the date of
publication on the NAO website, which is at www.nao.org.uk. Hard
copies can be obtained from the Stationery Office on 0845 702
3474.
- The Comptroller and Auditor General, Sir John Bourn is the head
of the National Audit Office which employs some 800 staff. He and
the NAO are totally independent of Government. He certifies the
accounts of all Government Departments and a wide range of other
public sector bodies; and he has statutory authority to report to
Parliament on the economy, efficiency and effectiveness with which
Departments and other bodies have used their resource.
Press Notice 36/05
All enquiries to Bill Schaper, NAO Press Office:
Tel: 020 7798 7335
Mobile: 07795 120838