Gold-Plating: When Member States Transpose More Than the Directive Requires

The definitional gap

Gold-plating is one of those terms that travels well and lands badly. It appears in Commission communications, national simplification programmes and business association complaints, and in each setting it means something slightly different. The Commission’s 2026 communication, A Simpler, Clearer and Better Enforced EU Rulebook, gives a working definition: national implementation that introduces a wider scope, stricter rules, or more burdensome procedures than the underlying EU act requires. That is a useful starting point. It is not a classification.

The Centre for European Policy (cep) makes the point sharply: the Commission’s plans, including the proposed Pact against gold-plating, fail to address one major issue — gold-plating is still not defined, nor are welcome and unwelcome practices differentiated in a sound manner. The Pact itself, as of the cep’s account, was still at the stage of a proposal to launch work, set out in a letter from Commission President Ursula von der Leyen dated 12 October 2026, with the aim of signature at a European Council meeting before the end of 2026. A declaration without a shared classification risks measuring the wrong thing and prescribing remedies that do not fit the legal cause.

This is not a drafting quibble. It determines what a practitioner should do first when a national measure looks like it goes beyond the directive. The answer is not to estimate cost. It is to name the obligation and its legal basis.

Why the directive is the wrong unit of analysis

The Commission’s own legal-types page sets out the basic structure. Directives set binding objectives on Member States but leave them free to choose how to achieve those objectives; they must be transposed by a deadline generally within two years, and the measures must be communicated to the Commission. Regulations are directly applicable and do not require transposition. The 2026 communication repeats the distinction: directives allow Member States more flexibility in implementation, while regulations regulate the policy area without requiring far-reaching additional normative provisions in Member States.

That flexibility is the space in which gold-plating occurs. But the space is not uniform. A single national regime can contain, at once, provisions that restate the EU requirement, provisions that exercise an express option left by the directive, provisions that are autonomous national policy in an unharmonised area, and administrative practices that have no clear legislative basis at all. Treating the regime as the unit of analysis conflates lawful choices with unlawful divergence and makes both invisible.

The National Board of Trade Sweden puts the methodological point directly: the specific obligations imposed on businesses and private persons, rather than the regulatory regime as a whole, should be the starting point for the assessment. The correct unit of analysis is the obligation.

Three diagnoses, three remedies

The National Board of Trade’s 2026 analysis, Beyond Gold-Plating, proposes a diagnostic framework that separates three categories. They are diagnostic, not exclusive, and they can overlap within one regime. But the separation matters because each points to a different remedy.

1. National top-up

A national rule or procedure adds obligations not required by the underlying EU legislation. Whether it is lawful depends on the degree of harmonisation. Under minimum harmonisation, a Member State may set a higher standard; under maximum harmonisation, the same addition is a compatibility question. The Board of Trade’s example is the EU Fertilising Products Regulation, which preserves certain stricter pre-existing national cadmium limits, creating divergence; Member States gold-plate when they implement those stricter requirements. The proposed response is not prohibition but transparency: assess costs, benefits, necessity and proportionality, consider alternatives, and set a review date.

2. Incorrect or disproportionate implementation or application

Here the national legislation, guidance or an individual decision misreads a provision within the EU act, or creates an unjustified restriction under the Treaties. Diverging national interpretation belongs in this category. The remedy is correction: guidance, appeals, SOLVIT, judicial review or Commission enforcement. This is where the infringement procedure does its work, and where the Commission’s enforcement capacity is the relevant constraint.

3. Administrative fragmentation

Forms, portals, duplicate evidence requirements, local procedures, processing times, fees or non-statutory demands create barriers without any clear legislative top-up. The Board of Trade’s example is the Waste Framework Directive, which requires an electronic register for hazardous waste while national rules determine reporting deadlines and sanctions. The remedy is procedural redesign: one-stop shops, common forms, interoperability, predictable deadlines, training and oversight. No amount of legal analysis of the directive will fix a form that asks for the same document twice.

A five-question screen

The Board of Trade proposes a questionnaire to be applied obligation by obligation. It is a practical sequence, and it is worth walking through in the order given, because each question depends on the answer to the one before.

1. Is there underlying EU secondary legislation, and what is the level of harmonisation? This determines whether a national addition is even capable of being lawful. Without this, the rest of the analysis is unmoored.
2. What does the relevant provision of the underlying EU legislation require? For example, a permit or an exemption. The comparison is between the national obligation and the specific EU provision, not between the national regime and a general impression of EU policy.
3. Is the national requirement in line with the underlying EU secondary legislation? This is the compatibility question. Under maximum harmonisation, a stricter national rule may be precluded; under minimum harmonisation, it may be permitted.
4. Is the national requirement necessary and proportionate, in combination with obligations arising from the underlying EU legislation? This is where lawful top-ups are tested, and where the cumulative effect of several individually defensible requirements becomes visible.
5. What effects does the national requirement have on cross-border economic operators? If costs are quantified, the counterfactual should be proportionate implementation, not the absence of regulation. Comparing a national rule to no rule at all inflates the measured burden.

The sequence matters because it keeps legal classification separate from the assessment of economic effects. The Board of Trade is explicit that these must be kept apart. A lawful choice may still fragment the market; an administrative practice may be unlawful or disproportionate. Businesses experience the cumulative burden, but public authorities must identify the legal cause to select the appropriate remedy.

What the instrument choice does upstream

There is a structural remedy that operates before any national transposition begins. The 2026 communication states that, for issues with a strong single market dimension and where EU competence so allows, a more systematic use of exhaustive regulations can limit top-up obligations and regulatory fragmentation, including through gold-plating. In those instances, the Commission says, preference should be given to complete harmonisation, with exceptions requiring solid justification.

This is the instrument-choice argument in its cleanest form. A directive creates the space in which national top-ups occur; an exhaustive regulation removes it. The trade-off is real: exhaustive regulations reduce national discretion, which is the point, but they also reduce the ability of Member States to adapt rules to local legal and administrative traditions. The Commission’s position is that for single-market measures the gain in uniformity outweighs the loss of flexibility. That is a political judgment, not a technical one, and it should be argued as such.

Transparency mechanisms and their limits

The cep study proposes ‘comply or explain’ mechanisms at national level, requiring national legislators to justify why they deviate from 1:1 implementation. This shifts the burden onto the Member State and makes deviation visible. It is a sensible transparency device. But it only works if the underlying act’s harmonisation level is legible at the point of transposition — and that legibility is precisely what is often missing. A directive that mixes minimum standards, express options and maximum-harmonisation provisions in different articles does not tell a national drafter, at a glance, which space is available. The Commission’s commitment to improve EUR-Lex summaries so that they clearly present rights and obligations and flag national implementation obligations is relevant here, though it addresses the reader’s experience of the law rather than the drafter’s.

The enforcement gap

If the diagnosis is incorrect or disproportionate implementation, the remedy is correction, and correction requires an institution capable of delivering it. The Board of Trade argues that the current division — EU law applied through national, regional and local administrations, while supervision remains centralised within the Commission — is unworkable. Its proposal is a decentralisation reform: each Member State should designate an independent national Single Market enforcement function to monitor the application of EU law, with independence, proximity to day-to-day application, effective sanction mechanisms including the right to bring cases before national courts, and EU-level coordination through a Commission-coordinated network.

This is a significant institutional proposal and it should be assessed as one. It would complement, not replace, the Commission’s enforcement role. It responds to a real asymmetry: the Commission can pursue a handful of strategic infringements, but it cannot investigate the administrative practice of every local authority. Whether national governments would accept independent enforcement functions with the power to act on their own initiative is a separate question, and the answer will vary by Member State.

What screening tools can and cannot do

Digital tools can compare texts, flag divergence and link implementation data. The Board of Trade is clear about the limit: they cannot determine the level of harmonisation, assess necessity and proportionality, or reveal how a procedure functions in practice. The last point is the one practitioners should hold onto. A procedure can be lawful on the face of the statute and still function as a barrier because of processing times, evidence requirements or the design of a portal. Screening finds candidates for analysis; it does not perform the analysis.

Where this leaves the practitioner

The question to ask is not ‘is this gold-plating?’ but ‘which type of divergence is this, and what remedy follows?’ A national top-up under minimum harmonisation calls for transparency, justification and review. The same addition under maximum harmonisation calls for a compatibility assessment and, if incompatible, correction. Administrative friction calls for redesign, not litigation. The classification comes first; the cost estimate comes after, and only against the correct counterfactual.

The unresolved problem is structural. The Commission’s Pact against gold-plating, as described by the cep, is being prepared without a settled definition. The Board of Trade’s toolkit is a proposal, not an adopted instrument. The national enforcement functions it recommends do not yet exist in most Member States. Until the classification is agreed, the measurement will be contested, and the remedies will be chosen by whichever institution has the capacity to act rather than by the logic of the diagnosis. That is the machine as it stands.

FAQ

Is gold-plating always unlawful?

No. Under minimum harmonisation, a Member State may set a higher standard, and that is a lawful national choice. The legal question is whether the addition is compatible with the EU act’s degree of harmonisation and, where relevant, with the Treaties. The policy question — whether the addition is desirable — is separate.

Does the Commission’s 2026 communication ban gold-plating?

No. It defines gold-plating and signals a preference for exhaustive regulations in single-market areas, which would reduce the space for national top-ups. It does not prohibit Member States from exceeding minimum requirements.

What is the difference between gold-plating and incorrect implementation?

Gold-plating, in the narrow sense, is a national addition that goes beyond what the EU act requires. Incorrect implementation is a misreading of what the EU act requires. The distinction matters because the remedies differ: the first calls for justification and review, the second for correction through guidance, appeals or enforcement.

Can a national measure be both a lawful top-up and a barrier to trade?

Yes. A lawful choice under minimum harmonisation may still fragment the single market by requiring cross-border operators to adapt. That is why the Board of Trade insists on separating legal classification from the assessment of economic effects: the measure may be lawful and still costly, and the response to the cost may be different from the response to the legality.