Between Harmonisation and National Identity: EU Directives and Its Transposition into National Law

EU legislation is changing national law in a significant way. Not only EU regulations have an effect on the national legal system but also EU-directives as they are transposed into national legislation. EU directives are enacted in various fields and often contain very detailed instructions. However, the Member States have a certain leeway regarding the form and method of the transposition and usually also regarding the content. For example, directives can set only minimum standards or the Member State can choose between multiple alternatives.

Yet, Member States do not seem eager to use this leeway. Instead, various Member States choose an automatic minimalistic transposition meaning that only the minimum requirements of the directive will be implemented into national law. Gold plating, the opposite of a minimalistic transposition, is here to be avoided unless certain criteria are met. By this minimalistic transposition, Member States try to retain as much competence and protecting themselves from EU-legislation.

The paper will discuss whether the claimed benefits of such minimalistic transposition are convincing. Do Member States actually maximise their decision-making autonomy by only meeting the minimum requirements of the directive and not using the granted leeway? The paper includes a discussion of the logic of transposition in a multilevel system as well as the different law making procedures used for transposing directives.