Member States transposing Directives into national law can choose the methods for such transposition but should prefer those practices best suited to ensure the attainment of the Directive’s goals. While we understand that nudges should be include in the toolbox, it's also true they raise a few concerns. One concerns the issue of transparency between citizens and representatives: although the trade-off here seems to be between transparency and effectiveness, that is not necessarily the case as some recent evidence shows. Secondly, nudges can defy the principle of proportionality, especially if they induce people to do things in a way that is contrary to fundamental rights and freedoms. Thirdly, though nudges can be less restrictive comparing to more traditional methods, they can also implicate a form of instrumentalization, which triggers the application of the principle of human dignity and brings us back to the distinction between acceptable and unacceptable paternalism.
Member States have large discretion when transposing EU directives and implementing EU regulations. They sometimes use this discretion to going beyond what is required by that EU legislation. This phenomenon is often called ‘gold-plating’. Over time, the concept has gained wider importance and is used for a number of phenomena in implementation of EU legislation. This could prove problematic as if we use a very broad definition of gold-plating it will lead to difficulties in identifying what are the behaviors that should be avoided and if an extremely broad definition is used, so many measures fall within the concept ‘gold-plating’. Both the political reasons and the actual impacts may not be simple to identify and even less simple to estimate. However, it is difficult to specify what precisely should be avoided when there are different understandings of which measures the concept ‘gold-plating’ includes. In this paper, we propose to define ‘gold-plating’ theoretically.
This claim for “gold-plating.” is not easy to evaluate once there might be political, cultural, and economics reasons at play.
When looking to a possible “gold plating” situation, questions must be raised regarding: national sovereignty and the application of the subsidiarity rule; the initial goals that supported EU intervention and the base line scenario that is set; national regulatory practices, standards and objectives; the impact on welfare and competitiveness of countries; regulatory transparency and the relation between regulator and regulated in a multilevel regulation framework; individual, national and supranational political objectives and behaviors.
The purpose of this presentation is to discuss the challenge’s associated with the analyses of “gold plating” and its relevance when assessing the impact of EU legislation ate the economic social and environmental level.