Kirja edastamine

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111

EUROPEAN COMMISSION SECRETARIAT-GENERAL

Deputy Secretary-General - Policy Coordination

Brussels SG.E.3

NOTE TO THE MEMBERS OF THE EU LAW NETWORK

Subject: Interconnection clause in directives – publication of transposition

measures in EUR-Lex - pilot phase

The interconnection clause in a directive obliges Member States, when transposing a directive,

to refer to the directive in question. This can be done either directly in the provisions that are

adopted to transpose the directive, or when these provisions are officially published. This

requirement also applies for national laws that already existed when the directive was adopted,

but that ensure the transposition of certain provisions of the directive.

The Commission gave details of the legal obligations resulting from the interconnection clause

at the EU Law Network meetings of 25 May 2023 and 1 December 2023. At the EU Law

Network meeting of 1 December 2023, several Member States pointed to legal and procedural

difficulties in publishing official notices for legislation pre-dating a directive. Other Member

States explained the methods they used to comply with the requirements of the interconnection

clause. Overall, there was widespread support by Member States for relying on the publication

of national transposition measures in EUR-Lex to satisfy the requirements of the

interconnection clause. The Commission informed Member States’ delegations that in its view,

legal considerations make it difficult to accept publication of transposition measures on EUR-

Lex as a substitute for an official publication at the national level.

In the light of the arguments and concerns brought forward by Member States, the Commission

committed to reconsidering its approach.

Following further consideration, and while the Commission maintains its legal position

explained at the EU Law Network meeting on 1 December 2023, it is acknowledged that the

publication of national transposition measures on EUR-Lex gives citizens and businesses easy

and reliable access to the implementation of directives by Member States. Provided that

appropriate information is published on EUR-Lex, publication in this way could be considered

an effective instrument to establish the link between national transposition measures and the

directive, including for national legislation pre-dating the directive.

Currently, the meta-data of the transposition measures of all Member States are available on

EUR-Lex following their notification via THEMIS/Directives. For 19 Member States, EUR-

Lex also publishes a hyperlink to their transposition measures and/or the measures in .pdf

format, following their agreement given to the Publications Office.

The Commission is willing to explore a pragmatic way forward, to ensure appropriate publicity

for national transposition measures – in particular those pre-dating a directive – and to

effectively link (‘inter-connect’) those measures to the directive. The Commission would

therefore like to propose a one-year test phase, during which the official publication of

national transposition measures required by the interconnection clause is ensured via

SENSITIVE

2

EUR-Lex. This publication should be complete and cover all national transposition measures,

both post- and pre-dating the directive. All notifications will continue to be done exclusively

via THEMIS/Directives.

During the test phase, it will be required that the reference in EUR-Lex to the national

transposition measures includes a hyperlink that gives direct access to the national official

publications of those measures and/or the text of the measures in .pdf format. The meta-

data alone are not sufficient.

At the end of the test phase, the Commission will evaluate the results and Member States'

practices. If the test phase is not found to have delivered the required results, the Commission

reserves its right to resume enforcing the obligations flowing from the interconnection clauses.

In the meantime, grievances in ongoing pre-litigation proceedings or enquiries about the

fulfilment of the requirements under interconnection clauses will not be pursued, if Member

States have agreed to the publication of hyperlinks and/or documents directly on EUR-Lex.

Despite the clear advantages of the EUR-Lex solution in terms of accessibility, Member States

have the right to opt out of this publication method if they commit to referring systematically

and directly to the directives in their national transposition measures or to publishing national

official notices to that effect, both for national legislation pre-dating and post-dating the

directive.

We would therefore ask you to confirm by email to the functional mailbox SG EU LAW

NETWORK by 15 June 2024 the option chosen for your Member State as regards the

interconnection clauses in EU law:

1. Publication of hyperlinks/ELI links on EUR-Lex;

2. Publication of measures in .pdf format on EUR-Lex;

3. Publication of hyperlinks/ELI links and measures in .pdf format on EUR-Lex;

4. Publication of a reference to the directive on the occasion of the national official

publication of the transposition measures.

Of course, Member States are encouraged to continue their practice of adding a direct reference

of the directive concerned to the national transposition measures, where possible. This is still

the most direct way of making the link between the relevant national and EU laws.

We hope that the proposed pilot phase can provide a good basis to find a pragmatic solution to

the problems encountered with the application of the interconnection clause. Your cooperation

in this matter is appreciated.

Elisabeth WERNER

Electronically signed on 30/04/2024 13:04 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË – Tel. +32 22991111

EUROPEAN COMMISSION SECRETARIAT-GENERAL

Deputy Secretary-General - Policy Coordination

Brussels SG.E.3

NOTE TO THE MEMBERS OF THE EU LAW NETWORK

Subject: Interconnection clause in directives – publication of transposition

measures in EUR-Lex - pilot phase

The interconnection clause in a directive obliges Member States, when transposing a directive,

to refer to the directive in question. This can be done either directly in the provisions that are

adopted to transpose the directive, or when these provisions are officially published. This

requirement also applies for national laws that already existed when the directive was adopted,

but that ensure the transposition of certain provisions of the directive.

The Commission gave details of the legal obligations resulting from the interconnection clause

at the EU Law Network meetings of 25 May 2023 and 1 December 2023. At the EU Law

Network meeting of 1 December 2023, several Member States pointed to legal and procedural

difficulties in publishing official notices for legislation pre-dating a directive. Other Member

States explained the methods they used to comply with the requirements of the interconnection

clause. Overall, there was widespread support by Member States for relying on the publication

of national transposition measures in EUR-Lex to satisfy the requirements of the

interconnection clause. The Commission informed Member States’ delegations that in its view,

legal considerations make it difficult to accept publication of transposition measures on EUR-

Lex as a substitute for an official publication at the national level.

In the light of the arguments and concerns brought forward by Member States, the Commission

committed to reconsidering its approach.

Following further consideration, and while the Commission maintains its legal position

explained at the EU Law Network meeting on 1 December 2023, it is acknowledged that the

publication of national transposition measures on EUR-Lex gives citizens and businesses easy

and reliable access to the implementation of directives by Member States. Provided that

appropriate information is published on EUR-Lex, publication in this way could be considered

an effective instrument to establish the link between national transposition measures and the

directive, including for national legislation pre-dating the directive.

Currently, the meta-data of the transposition measures of all Member States are available on

EUR-Lex following their notification via THEMIS/Directives. For 19 Member States, EUR-

Lex also publishes a hyperlink to their transposition measures and/or the measures in .pdf

format, following their agreement given to the Publications Office.

The Commission is willing to explore a pragmatic way forward, to ensure appropriate publicity

for national transposition measures – in particular those pre-dating a directive – and to

effectively link (‘inter-connect’) those measures to the directive. The Commission would

therefore like to propose a one-year test phase, during which the official publication of

national transposition measures required by the interconnection clause is ensured via

SENSITIVE

2

EUR-Lex. This publication should be complete and cover all national transposition measures,

both post- and pre-dating the directive. All notifications will continue to be done exclusively

via THEMIS/Directives.

During the test phase, it will be required that the reference in EUR-Lex to the national

transposition measures includes a hyperlink that gives direct access to the national official

publications of those measures and/or the text of the measures in .pdf format. The meta-

data alone are not sufficient.

At the end of the test phase, the Commission will evaluate the results and Member States'

practices. If the test phase is not found to have delivered the required results, the Commission

reserves its right to resume enforcing the obligations flowing from the interconnection clauses.

In the meantime, grievances in ongoing pre-litigation proceedings or enquiries about the

fulfilment of the requirements under interconnection clauses will not be pursued, if Member

States have agreed to the publication of hyperlinks and/or documents directly on EUR-Lex.

Despite the clear advantages of the EUR-Lex solution in terms of accessibility, Member States

have the right to opt out of this publication method if they commit to referring systematically

and directly to the directives in their national transposition measures or to publishing national

official notices to that effect, both for national legislation pre-dating and post-dating the

directive.

We would therefore ask you to confirm by email to the functional mailbox SG EU LAW

NETWORK by 15 June 2024 the option chosen for your Member State as regards the

interconnection clauses in EU law:

1. Publication of hyperlinks/ELI links on EUR-Lex;

2. Publication of measures in .pdf format on EUR-Lex;

3. Publication of hyperlinks/ELI links and measures in .pdf format on EUR-Lex;

4. Publication of a reference to the directive on the occasion of the national official

publication of the transposition measures.

Of course, Member States are encouraged to continue their practice of adding a direct reference

of the directive concerned to the national transposition measures, where possible. This is still

the most direct way of making the link between the relevant national and EU laws.

We hope that the proposed pilot phase can provide a good basis to find a pragmatic solution to

the problems encountered with the application of the interconnection clause. Your cooperation

in this matter is appreciated.

Elisabeth WERNER

Electronically signed on 30/04/2024 13:04 (UTC+02) in accordance with Article 11 of Commission Decision (EU) 2021/2121