Identification of gold-plating in the Slovak legislative framework

What is gold-plating?

According to the European Commission’s interpretation, the term Gold-plating presents an extension of the requirements imposed by European legislation, especially directives, in the process of transposition.  In practice, we are able to see that in cases where the transposed legal norm

  • leads to the application of an option departing from EU regulatory requirements in a stricter and more extensive version,
  • doesn't lead to the application of an option departing from EU regulatory requirements in a less burdensome and strict version,
  • doesn't lead, in case of more alternatives, to choosing the one that would be the least stringent and burdensome,
  • leads to a voluntary extension of EU regulation in terms of covering cases/subjects that are not exhaustively listed.

Gold-plating in Slovakia

A very recent example of gold-plating in the Slovak legislative framework is occupational health services for all employees irrespective of the category of work as determined by the assessment of health risks, which came into effect with the amendment No. 204/2014 Coll. and is stipulated in Act No. 355/2007 Coll. on the protection, support and development of public health. The employer's obligation to provide occupational health service was previously applicable only to employees performing hazardous work included in the third and fourth category.

Explanatory statement of the amendment justifies the proposed change by the need to meet the requirements of the European Framework Directive of the Council of 12 June 1989 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. Even though the directive expects the entrepreneurs to provide employees with protective and preventive services against threats to health at work, specifics in terms of legislation are left up to member states.

The Directive, in addition to enabling the provision of these services through the firms’ own staff and external services and persons, allows member states to define the categories of enterprises, in which the employer, assuming he is qualified/competent enough, can take, due to the nature of the activities and size of the enterprise, personal responsibility for the appropriate measures. Our legislation, unfortunately, does not allow for this option.

Comparison of the Slovak transposition within an international context does indeed reveal a significant extent of gold-plating: e.g. in Poland, the employer has the option to perform working health services personally in the case he employs fewer than 10 employees and this option is extended to fewer than 20 employees given that he meets the criteria of higher degree of competence. Similarly, in Portugal up to 10 employees. In Austria, even up to 50 employees.

How do EU member states fight Gold-plating?

Examples of an effective system of measures focusing on a fight against Gold-plating can be found in United Kingdom’s legislation, which stipulates several principles applicable to the transposition process. In particular:

  • ensure that domestic enterprises won't get into competitive disadvantage compared with their European partners as a result of the transposition. This requires not going beyond the minimum requirements of the directive of the EU (eg. the amount of fines, number of employees, the form of duties, etc.),
  • a special chapter explicitly devoted to the identification of some form of gold-plating is always a part of regulatory impact assessment,
  • transposition’s entry into force cannot be set earlier than latest possible deadline set by the EU directive,
  • maintaining existing protection standards if they are higher / more extensive than the ones proposed in EU directive.

In the Netherlands, a transposition's impact assessment points out to the cases of gold-plating and the government also collects suggestions from the public regarding gold-plating in the existing national legislation. Methodology of the procedure in assessing the impact of regulation in the Czech Republic also includes the obligation to identify whether EU directives should be implemented more extensively than necessary.

How do we struggle with gold-plating in Slovakia?

Regulatory Impact Assessment is an instrument with the potential to significantly decrease the occurrence of gold-plating in the transposition process of European legislation. That means that an analysis of impacts of the proposed regulation on the stakeholders affected should subsequently lead to the modification of the proposal, thus reducing or even fully eliminating possible negative impacts.

Since April 2016, The Uniform Methodology for Assessing Selected Impacts outlines new requirements for the impact clause as an indispensable part of any proposed material (legislative and non-legislative nature) by the Slovak government. If the impact clause identifies impacts on the business environment, impact analysis as well as the SME Test must be included. The SME test includes a gold-plating analysis of the regulation in the case the legislative material is a transposition of an EU law.

In such a case, assessment of gold-plating in a SME Test is a so-called ex ante assessment. One of the Center's tasks is also an ex post legal analysis of already transposed EU legislative acts into the Slovak legislation. Such analyses include identification of proposals to optimize the regulatory burden on businesses.

Businesses, their representatives or other interested parties can directly notify the Better Regulation Center upon gold-plating identification. To do so, they can use this contact form. The Center will look at every relevant suggestion, with the aim to propose measures to optimize the excessive regulatory burden on businesses caused by the effects of gold-plating. Afterwards, these proposed measures will be submitted to the Ministry of the Economy of the Slovak Republic and their implementation will be closely monitored.

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