Cabinet Office Checklist "Implementing European
Law"
Double Banking
Are the requirements of the directive covered to any extent by
existing domestic law, perhaps law for which another department
is responsible?
Is the domestic provision sufficient, and no more than the directive
requires?
If not, can the existing law be dispensed with. Consider using
the European Communities Act or a Deregulation Order?
Gold Plating
Timing
What use is being made of available transitional periods?
Are legal obligations being imposed with effect from the latest
possible date?
If not, do UK benefits of early implementation clearly outweigh
costs?
Copy-out
Do the substantive requirements follow exactly the wording of
the directive?
Is there elaboration of any term used which may give a wider meaning
in UK law than that in the directive (eg because it attracts an
existing definition)?
If there are any departures from the terms of the directive, what
are the reasons and compliance cost implications of each instance?
Scope
Are there precise definitions on coverage. Consider territorial
extent (eg exports and imports) and persons on whom obligations
are placed. Are these definitions drawn as narrowly as possible?
If not, what are the reasons and compliance cost implications?
Exemptions
Are any potential exemptions or derogations being used to their
maximum extent?
If not, what are the reasons and compliance cost implications?
Enforcement
Does the directive allow self assessment for compliance?
If not, is the enforcement regime adopted (eg licensing, inspection,
administrative orders) the least burdensome required etc.
Has maximum use been made of Section 5 principles[111]?
If an existing enforcement regime is to be followed, is this proportionate
both to the requirement set out in the directive and to any classes
of person or activity brought in?
Sanctions and proof
Can any of the provisions of the directive operate without the
support of express sanctions at all (eg because as transposed
it will give rights which those concerned can enforce)?
If not, what sanctions are proposed eg civil liability, penalties
(criminal or civil), court compliance orders or purely administrative
action?
Are these required by the directive? If not, why was this particular
sanction chosen?
What defences are provided in the regulations or statutory guidance?
Where does the burden of proof lie in the event of a breach?
For judgmental terms such as "adequate" or "sufficient",
consider if business or the enforcer should decide whether the
standard is met.
Codes and Guidance
Is any statutory code or non-statutory guidance needed at all?
Is any necessary code or guidance as short, simply expressed and
non-prescriptive as possible?
Clarity and presentation
If the directive covers areas which are the responsibility of
more than one department, are all implementing measures properly
integrated?
When all issues of substance in the regulation have been resolved,
is there any additional scope for consolidation?
Are all implementing measures expressed in plain English?
Monitoring
When and by whom will the actual impact be monitored?
111
The "Section 5 principles" are set out in Section 5
of and Schedule 1 to the Deregulation and Contracting Out Act
1994. Back
