The Diplomat
The Council of Ministers approved this past Tuesday a Royal Decree-Law for the transposition of several European Union directives, a measure that should avoid the imposition of heavy fines on Spain for its delay in adapting these European rules.
Specifically, the Council of Ministers has transposed the Guaranteed Bonds Directive, the Directive on Cross-Border Distribution of Funds, the Directives on Copyright and Digital Rights in the Digital Single Market and the Directives for the improvement and modernization of the rules on Consumer Protection in the European Union and on the system of consumer penalties.
As indicated yesterday by the Government through the Official State Gazette, the timely transposition of European Union directives is “a fundamental objective of the European Council”, which is why “the European Commission submits periodic reports to the Competitiveness Council, which are given a high political value due to their function of measuring the effectiveness and credibility of the Member States in the implementation of the internal market”. As a result, the 2007 Treaty on the Functioning of the EU (Lisbon Treaty) provides that, for failures to transpose on time, the Commission can ask the Court of Justice of the European Union (CJEU) to impose significant financial penalties on an accelerated basis.
“Spain has been consistently complying with the transposition objectives within the committed deadlines since they are set,” says the Executive of Pedro Sánchez. “However, in recent years, events such as the repetition of general elections in 2019, with the consequent dissolution of the Cortes Generales, the existence of a Government in office for a prolonged period of time, as well as the COVID-19 pandemic stadium in 2020, explain the accumulation of delays in the transposition of some directives, which require a norm with the status of law for their incorporation into the internal legal system,” it continues.
“Such is the case of the Directives whose transposition constitutes the object of this Royal Decree-Law, given that all of them are at risk of a fine” in accordance with Article 260. 3 of the Lisbon Treaty, which establishes the possibility of a fine for “those directives for which there are less than three months left for their transposition deadline to be met and which need, at least, a regulation with the rank of law for their transposition without said law having started its parliamentary processing; as well as all those directives that already have an infringement procedure opened by the European Commission because their transposition deadline has been met,” it continues.
“As a recent example of the economic consequences that can result from these delays”, the Government recalls the CJEU Judgment of 25 February 2021, by which Spain has been ordered to pay 15 million euros as a lump sum (the result of multiplying a daily amount by the number of days of non-compliance) plus 8. 099,000 euros as a penalty payment for the delay in transposing the Directive of the European Parliament and of the Council of 27 April 2016 on the protection of individuals’ data by authorities competent for the prevention, investigation, detection or prosecution of criminal offenses or the execution of criminal penalties.
“Given the seriousness of the consequences of continuing to delay the incorporation into the Spanish legal system of such directives, it is necessary to resort to the approval of a Royal Decree-Law to proceed with such transposition, which will allow closing the infringement proceedings opened by the European Commission,” adds the Government.
In 2016, the Commission decided on a change of approach to “systematically request the lump sum”. Based on this, the fact that a Member State remedies the infringement by transposing the directive in the course of an infringement procedure does not exempt it from paying the aforementioned lump sum. However, the Commission included a transitional provision whereby this new practice will not apply to proceedings whose letter of formal notice predates the publication of the said communication in the Official Journal of the European Union, which took place on January 19, 2017.
“Consequently, it is of extraordinary and urgent necessity to proceed with the transposition before the application is formalized before the Court of Justice, in order to avoid a judicial procedure that would end with a judgment declaring the failure of the Kingdom of Spain to comply with its obligations under Union law,” the Government warns. The deadline for the transposition of the Copyright Directive, for example, expired on June 7.
Twenty pending directives
As of October 6, 2021, Spain had twenty EU directives pending transposition, which are, on average, one year and eight months behind schedule. Among those pending transposition, the regulations on the environment, the fight against fraud and renewable energy stand out.
In August 2018, just two months after Pedro Sánchez assumed the Presidency of the Government, the Council of Ministers approved a Royal Decree-Law in which it recognized the “delay” in the transposition of European directives, which represented “a risk of fine” for Spain. In 2018, the Government of Sánchez tried to catch up with the EU by approving 25 Royal Decree-Laws and, so far in 2021, the Executive has approved another three Royal Decree-Laws for the transposition of EU rules.
