Gold-Plating: Big Problem for Slovakia

Anton Lodewijk George Offermans: Clerk Writing with a Quill (before 1911) // Public domain

Gold-plating is a term used to characterize the process whereby the powers of an EU directive are extended when being transposed into the national laws of a member state. The Slovak republic is not an exception.

The Slovak Republic has not yet developed a manual or methodological guidance that would regulate the procedure for proper implementation of EU directives, so as to avoid unnecessarily burdensome transposition. A reference to the transposition of the Directive into the Slovak legal order can be found in the Legislative Rules on Lawmaking.

According to Annex No. 1 entitled “Clause on the compatibility of the draft law with EU law” of the document in question, which is an annex to the draft law, it is necessary to indicate whether the subject matter of the draft law is also found in EU law.

It is also necessary to indicate, inter alia, to what extent the EU law in question is transposed and whether the Bill is compatible with EU law.

According to the Legislative Rules on Lawmaking, in addition to the “Clause on the compatibility of the draft law with EU law“, a “Table on the compatibility of the draft law with EU law” is also attached to demonstrate the compliance of the draft law with EU law.

Where a draft law transposes an EU directive, such a draft must also include a transposition annex.

The transposition annex shall state “the precise designation of the legally binding act being transposed and an indication of its publication in the Official Journal of the European Communities or the Official Journal of the EU”.

At first glance, the submission of such annexes to any draft law may appear to be effective in combating unjustifiably burdensome transposition, but the above annexes are based on a simple statement by the submitter as to whether there has been full compliance, partial compliance, no compliance, or that it was not necessary to transpose a given article of the directive into Slovak law.

Often the submitter has stated that the transposition of the directive into Slovak law has resulted in full compliance with the text of the directive, but in the end, gold-plating has been identified in the law.

The Regulatory Impact Assessment (RIA) document plays a key role in assessing the impact of regulation. However, the problem is the low quality of this process.

Another problem is that the submitter of legislation often does not consider the aspect of who is to be affected by the legislation and puts itself in the directive position of the State, which is not a partner of the affected subjects but a regulator in a directive position.

What to Do in Slovakia (or Any Member Country)?

The primary and generally applicable solution, which would aim to effectively prevent cases of gold-plating in Slovakia, is the creation of a legally binding document that would comprehensively stipulate that the principle of minimum transposition applies in Slovakia in general.

It should also be enshrined that if the submitter deviates from the principle of minimum transposition, he must justify this fact on the grounds of national public interest or on the grounds that the directive has a deregulatory effect.

The prohibition of non-minimalist transposition, or a possible deviation from the prohibition of non-minimalist transposition that does not lead to gold-plating and is duly justified, should be checked by a special public body (e.g., as some kind of Center of Better Regulation) set up for this purpose.

Here are some possible measures to implement:

  1. Definition of clear methodological procedures for the responsible authority in transposing the directive into national legislation by means of a binding act.
  2. Establishment of an institution whose main task would be to assess the impact of transposition on the business environment.
  3. Extension of the list of entities designated as mandatory commenters in the framework of the comment procedure (to slow down the process).
  4. Preparation of analyses of the impact of the adopted regulation on the business environment at least within a 3-5 years period, including an analysis of the so-called ex post assessment.
  5. Introduction of continuous information to the business sector on the preparation of new legislation at EU level.
  6. Avoiding stricter sanctions by national legislation than those provided for in the EU Directive in the event of non-compliance with the obligation imposed.
  7. The transposing legislation should not be transposed earlier than that date by the submitter of the transposing legislation, unless this is sufficiently justified by the need for an earlier adjustment of national circumstances.
  8. Not to increase the administrative burden beyond the requirements of the European Union Directive.
  9. Avoiding the introduction of stricter rules in national legislation.
  10. Application of the principle of proportionality. This principle means that the achievement of the objective must be proportionate to the means of achieving it.

This way could be the submitter of legislation (or public body in general) a partner of the affected subjects and not a regulator in a directive position.

You can find a deeper analysis of this problem in the paper published by the Lithuanian Free Market Institute (LFMI). The preparation of the paper was supported by the Friedrich Naumann Foundation for Freedom.

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