Lord Tope tackles goldplating EU laws

“Goldplating” – the practice whereby national governments add on extra regulation to the law emanating from the EU – is what often leads citizens to believe that the European Union “over-regulates”. Whilst there may be cases of such excessive regulation from Union bodies, such as the recent proposal to ban certain types of olive oil jugs, which has been thankfully withdrawn, the fact is that much of the over-regulation happens when the European law is being processed at national level. Unfortunately, Westminster has not been immune to the “goldplating bug.” 

For this reason, Lord Tope, member of the EU’s assembly of regional and local representatives (CoR) in his capacity as member of the London Borough of Sutton, has called for an EU-wide standard definition of goldplating. In this way, national governments would have legal certainty in the implementation and application of EU law. The standard definition would also allow for comparative analyses between Member States and for a means to judge the claims of those who assert that they do not goldplate.

Graham Tope, whose proposals were part of his work as author of the CoR report on EU Regulatory Fitness, proposed that ‘goldplating’ should be defined as:

  • adding requirements to those already in the EU law or making the law more complex;
  • extending the scope of the law beyond what the EU intended;
  • not taking advantage of opportunities to opt-out of certain clauses of the European law;
  • keeping national requirements which go beyond what is required by the EU law;
  • introducing national regulatory requirements, which fall outside of the aim of the European law;
  • deciding an earlier entry into force of the law than that agreed at European level;
  • stricter sanctions than stipulated by the EU;

The report, which received the backing of the CoR plenary on 30 May, acknowledges that goldplating is not – and should not be – prohibited by EU law. In some cases it may be justified that national or subnational legislation provides for a higher level of protection, such as for environmental protection; the protection of workers; the quality and safety standards related to human organs, blood and blood derivatives; and consumer protection.

Nevertheless, Lord Tope recommends that such additional measures should be specifically justified, and must avoid increasing the complexity and cost of new laws on local and regional authorities, business and the general public. For a full copy of the report, please contact [email protected].

* Sean O'Curneen is Secretary General of the Alliance of Liberals and Democrats for Europe in the Committee of the Regions, the EU's Assembly of Regional and Local Elected Representatives.

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8 Comments

  • Sean O'Curneen 5th Jun '13 - 3:03pm

    Andrew,
    I draw your attention to the last two paragraphs of the article, which state that goldplating should not be prohibited, that at times it is justified (some examples are given which match the point you are making), but should avoid creating an excessive burden on local and regional authorities, on businesses, and on the general public.

  • Andrew Ducker: I think the point is that additional regulation should be clearly identified as such, so that everyone can know what is the basic EU minimum and therefore should be found in all EU countries and which only apply within a state’s boundaries.

  • I’d like to take issue with this although I haven’t yet read the report. Member states should in practise be free to legislate in areas where they may best have competence. Presuming that European law should be the base beyond which national law cannot go beyond is exactly the kind of approach which results in people blaming the EU for bad law and taking power away domestically.

    The current Government also takes the approach that copyout of the legislation without “goldplating” is the best approach. However, what if the directive itself made little logical sense in its application into English law let alone in that of devolved countries. What if the directive negotiated was so bad that it needed to be beefed up to meet the uk’s priorities – I remember at one point for example that the Capital Requirements Directive was likely to place lower capital requirements on European banks than the UK was proposing in order to prevent future failures. There is a genuine question whether businesses are harmed by the volume of regulation or just very bad, hastily considered law. I would argue the former is not as bad as the latter.

    Isn’t it just as costly if not more so for businesses to challenge law and then wait a few years for the matter to be determined by the ECJ?

    To my mind, I get the populist sentiment. Its a simple message to say that member states overregulate. Its been said for years. But the solutions just seems a naieve constraint to place on policymakers who ultimately are doing what they can in the best interests of those who elected them. That same point cannot automatically said of those in Europe.

    I wish you the best in your report and will look forward to reading it but I’m afraid I’m unlikely to be persuaded this is a helpful intervention.

  • Making national governments be explicit about the variations they have made in implementing EU law seems to be a good idea to me.

    I can see several benefits arising from this, the first is greater transparency of where the goldplating and/or ‘daftness’ originates from, so national politicians (and media) would no longer be able to throw mud at “the EU” when their action/non-action is explicitly recorded in black-and-white.

    Another area to benefit will be trade, as having the ‘goldplating’ explicit makes it much easier for a company in one state to determine what the local implementation differences are in the states they are trading with.

  • Sean O'Curneen 12th Jun '13 - 9:37am

    @sfk: Member states ARE free to legislate in the areas of their competence. Equally, the EU is free to legislate in the areas of its own competence, as defined by the Treaty, which was agreed by the Member States. EU laws are agreed by national governments (elected by their citizens) and MEPs (elected by their citizens). European law is then implemented at national/regional/local level, and what often happens is that each level of government starts adding to the law. They are free to do that. But sometimes it is excessive and when they hear complaints, they throw their hands up in the air and say “it’s a European law” and point the finger at “Brussels”. That is what Lord Tope is addressing: whilst preserving the Member States’ freedom to extend the scope of the European law, proposing a method to ensure that it is done in a proportionate, justified, and measurable way. Surely that is desirable?

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