INTRODUCTION

Gold-plating of EU law or, in other words, non-minimalistic implementation of EU law occasionally occurs in the legislative practice of EU Member States. It will be argued in this chapter that Member States should gold-plate EU law only after they have properly identified, considered and weighed the relevant national public interest grounds capable of justifying or offsetting possible regulatory repercussions of gold-plating. To lay the necessary groundwork for subsequent analysis, the chapter first defines and explains the concept of gold-plating of EU law. It then discusses the public interest, as manifested in particular national public interest grounds, that can be invoked to justify gold-plating with regulatory repercussions. The public interest is therefore primarily treated here as a possible justification for such gold-plating.

THE CONCEPT OF GOLD-PLATING

Gold-plating will be defined here as non-minimalistic national normative implementation of EU legal acts. Gold-plating is therefore understood here as any permissible (that is, still allowed under EU law) national normative implementation of an EU legal act which exceeds the minimum (regulatory) requirements of that act. This definition builds on the one provided in the UK Transposition Guidance. According to the Guidance, “gold-plating is when implementation goes beyond the minimum necessary to comply with a directive”. The definition for the purpose of this chapter thus expands the one in the Guidance to cover not only non-minimalistic national transposition of EU directives, but also non-minimalistic national normative implementation of other EU legal acts, such as EU regulations.

Gold-plating is defined here as exceeding the minimum requirements of implemented EU legal acts, not just exceeding the requirements of those legal acts, as is the case in some other definitions. The rationale for this has been clearly and convincingly expressed by Atthoffand Wallgren. According to them,