Anita Nemeth, Checking the draft legislation as to their conformity with the EU acquis, Ankara 25 May 2016

© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop
Transposition of EU Legislation into the Legal System of Turkey:
The ways and means to check the draft legislation as to their conformity
with the EU acquis
dr. Anita Németh
Attorney at law, Lecturer at the Faculty of Law of
Eötvös Loránd University (ELTE), Budapest, Hungary
(former Head of the Department of the European Union Affairs at the Ministry of Justice in
Hungary, Member of the Negotiating Team of Hungary)
Ankara, 25 May 2016

principallyfinancedbytheEU The ways and means to check the draft legislation as to
their conformity with the EU acquis
Main topics:
• Some general preliminary remarks
• Institutional framework and co-ordination mechanisms: challenges,
experiences
• Different approaches to checking compliance of the draft legislation
with the EU acquis as well as the Constitution, national legislation:
examples for different scrutiny mechanisms
• Concluding remarks
1

Some general preliminary remarks
• Historical importance of the accession (in Hungary, 2004) and also
great impact on the legal system („legal revolution” serving the
change of regime + integration objectives)
• Positive circumstances – positive general approach to the integration
and accession, modernisation (political parties, civils, society)
• General alignment in respect of the law and institutions; special
alignment, special issues
• Complex task (legislation, enforcement, institutions, capacity, culture
etc.)
• Differences before and after the accession
• Terminologies (approximation, harmonisation, alignment …EC/EU)
2

principallyfinancedbytheEU The four stages of the process and progress
of the legal harmonisation in Hungary
(and the possible lessons for a current candidate country)
1st stage
initial phase
(1991–1994)
2nd stage
establishing
phase
(1994–1998)
3rd stage
intensive
phase
(1998–2003)
4th stage
„ending”
phase
(2003/2004)
3

1st stage – initial phase (1991–1994)
1991–1994: Conclusion of the Europe Agreement – Submission of the
application for accession
• Legal basis: Europe Agreement (Association Agreement; EA)
• Special obligations (with deadlines) of the EA and also more general
legal requirements necessary for the accession (ten-year transitional
period)
• Article 67 of the EA: general, framework requirement of the
approximation of the country’s present and future legislation to the
Community legislation
- General coverage; „as far as possible” (flexibility); no details
- Approximation: permanent; unilateral and one-way; full scope;
gradual; in line with the national interests (priorities,
partial or full)
• Role of the institutions of the EA (Association Council, Committee,
sub-committees)
4

Article 67 of the Europe Agreement
The Contracting Parties acknowledged that one of the basic pre-
requisites of Hungary’s economic integration into the Community is the
approximation of the country’s present and future legislation to
Community legislation. Hungary undertook to ensure that its future
legislation shall be compatible with Community law as far as possible.
5

• Important stage and point of reference: Copenhagen criteria (June
1993)
• Act I of 1994 on the promulgation of the EA + special provisions on the
approximation of legislation – new impetus
- Compulsory integration of the aspects of the legal
harmonisation into the general legislative procedure
- In the reasoning of the draft Acts (role of the Parliament):
compulsory information on the question of the legal
harmonisation (modification of the Act on Legislation)
• Role of the Ministry of Justice (MJ) strengthened: general legal control
of the drafts + special and substantial control (and opinion) on the
compliance (legal harmonisation) – with the „statement of
conformity” (not formal), the Ministry of Justice did not take over the
responsibility of the line ministries
6

Summary of the initial phase:
• Legal harmonisation became compulsory (EA)
• Basic preparations
• Establishing the very basic „tools” (harmonisation reasoning, special
substantial control) and start of defining the priorities
• Special role, control of the Ministry of Justice in legal harmonisation
matters (beyond the general responsibility in legal matters) – legal
traditions, legal harmonisation is a key legal issue, responsible persons
7

Lessons:
• Initial and establishing phases can come (be planed) together (see
later)
• Initial steps, tools, methods etc. can be determinative (but always can
be changed)
• Balance between the traditions and the „new approach” to be
prepared for the accession; real integration of the matters of legal
harmonisation into the national legal system
8

2nd stage – establishing phase (1994–1998)
1994–1998: Submission of the application for accession – Start of the
Accession Negotiations
• Assistance from the EU: Pre-accession strategy (1994), White Paper
(1995; to enhance and orient the legal harmonisation activity of the
associated countries in the field of integration into the internal
market) + PHARE technical and financial assistance
• Start of the special, systematic planning, programming of the legal
harmonisation work: legal harmonisation programmes (1995–)
- publicised, (public) Government Resolutions
- 5-year programme, than annual programmes
9

• Government Resolution No. 2004/1995. (I. 20.) Korm. on the task
schedule of law harmonisation preparing the accession to the EU;
• Government Resolution No. 2174/1995. (VI. 15.) Korm. on the five-
year programme of law harmonisation;
• Government Resolution No. 2403/1995. (XII. 12.) Korm. on the
implementation of tasks related to the White Paper concerning our
integration into the internal market;
• Government Resolution No. 2282/1996. (X. 25.) Korm. on the
amendment and consolidation of law harmonisation and internal
market integration programmes, preparing accession to the EU;
• Government Resolution No. 2212/1998. (IX. 30.) Korm. on the
programme of law harmonisation for the period before 31 December
2001 and the tasks relating to the implementation of the programme
• Etc. (1999–2004 annual programmes)
10

General structure of the legal harmonisation programme
Year (first and second half) and the specific field of law
EC/EU
legislation
Hungarian
legislation
and the task
(what and how -
new,
modification,
repeal)
Responsible
ministry
National
Programme
(included or
not) - later
Others
(partial or full
harmonisation;
only by the
accession; or
entry into force
only by the
accession etc.)
Directive …
Directive …
Regulation (!)
…
Resolution
(!) …
11

• Incorporation of the legal harmonisation programmes into the half-
year working plans and general legislative programmes of the
Government
• Implementation of the programmes – monitoring by the Ministry of
Justice; and the necessary adjustments
• Information on the degree and extent of the approximation – not only
in case of Acts but all pieces (levels) of legislation (Government
Resolution) – also in case of Ministerial Decrees
• Legal harmonisation clause – formal codification requirement in case
of harmonised pieces of legislation
- Indication of the harmonisation results – information for the
practitioners, appropriate interpretation (not equal with the
interpretation requirements after the accession), more efficient
monitoring, control
- Clause: generally in the final provisions or also possible in the annex 12

Legal harmonisation clause (variations)
• “This Act/Decree, in compliance with Article 3 of Act I of 1994 promulgating the
Europe Agreement establishing an association between the European Communities and
their Member States, of the one part, and the Republic of Hungary, of the other part,
signed in Brussels on 16 December 1991, contains provisions
compatible/partially compatible with the following acts of the
European Communities:
a) …;
b) …;”
• “This Act/Decree (…) contains provisions compatible/partially
compatible with … (legislative act) of the European Communities.”
• “This Act/Decree (…) contains provisions compatible/partially
compatible with the legislative acts of the European Communities
listed in Annex ….”
13

Summary of the establishing phase:
• Dual purpose of the legal harmonisation work (association and
accession)
• Establishment of the system for the „accession-driven” harmonisation
works
• Determining tool: annual programmes (taking into account of the
quantity and continuous changes of the acquis and the national
interests) – planning, setting priorities, gradual approximation,
transparency, controlled implementation
• Legal harmonisation clause can enhance the better understanding and
transparency of the legal harmonisation
• Priorities and assistance of the EU – see EA and White Paper: internal
market integration + competition + right of establishment, intellectual
property etc.
14

Lessons:
• Challenges in quantity, in timing, in priorities, in consistency –
establishment of a national system for planning, programming,
monitoring
• Effective integration of the legal harmonisation work into the general
legislative procedure, requirements with the necessary differences
(plans, reasoning, substantial monitoring and control, legal
harmonisation clause; and institutional framework)
15

3rd stage – intensive phase (1998–2003)
1998–2003: Start of the Accession Negotiations – Signing the Accession
Treaty
• In parallel: intensive, accelerated works on law harmonisation and the
accession negotiations – special interactions!
• Negotiations: screening exercise (help and external/EU control on law
harmonisation and institutional capacity) + substantial negotiations /
Position Papers (identifying the derogations and the list of the
technical adaptations/not only „technical”)
• National interests: room for manoeuvre is narrower in the law
harmonisation process; requirement of full alignment + derogations
(measuring the impacts and conditions of the fulfilment of the EU
requirements; difficult conditions to be fulfilled)
• Accession partnership (priorities and financial resources by the EU for
Hungary) + Position Papers (binding commitments, derogations by
Hungary – also monitored by the EU)
16

• Intensive monitoring by the EU on the preparation exercise
• Extended monitoring: not only on the progress in law harmonisation,
but also in respect of the effective law enforcement and expected
efficient functioning of the institutions (implementation of the acquis)
• Hungary: (annual) National Programme for the adoption of the acquis
(NPAA), European Commission: Regular Report(s)
• NPAA included the simplified legal harmonisation programme –
consistency
17

New (and old) challenges:
• Delays in legal harmonisation and preparations in certain fields and
the moving target effects; solutions („black listing”/preventive effect,
monthly reports to the Government)
• Certain problems due to the outsider’s alignment, mainly in the field
of competition – Decision of the Constitutional Court No. 30/1998.
(VI. 25.) AB – important findings as to the legal harmonisation before
the accession:
- Constitutional requirement that Hungarian authorities may not apply
directly Community law criteria (it is not permitted/not constitutional to
apply directly Community acts before the accession, nor in the form of
interpretative guidelines) + only referring rules (to the Community acts
and provisions) are also problematic
• Special alignment in respect of EU acts directly applicable (e.g.
Regulations) – deregulation by the time of accession
18

Communication of the Minister of Justice 8002/1999. (IK.10.) IM on the
management of matters relating to law harmonization (attached)
Contents of this published guideline:
1. The purpose and subject of the Communication
2. Law harmonisation in the phase of association and in the process of
accession to the EU
3. Programming law harmonisation
4. Order of responsibility of law harmonisation
5. Certain theoretical and methodological aspects of law harmonisation
6. Formal requirements
7. Sources of acquaintance with Community law
8. Translation of Community law into Hungarian
Annexes
19

General structure of the concordance tables / Annex 3
Community Legislation (Title)
Community
legislation
(Article,
paragraph,
subpar.)
Description National legislation
piece of
legislation
(number,
title)
Article,
par.
date of
entry
into
force
Responsi
ble
authority
status
of the
legisla
tion
compati
bility
remarks
/explan
ations
(Remark: At this stage it was not a general requirement to make these tables, only later.)
20

Certain horizontal issues to be prepared or solved (2000/2001) +
Government Resolution No. 2319/2000 (XII. 21.) Korm.
• Basic principles in the relationship of the EC law and Member States
law
• General questions on the relationship between the EC law and
national Constitution, amendment to the Hungarian Constitution,
Treaty of Accession and the promulgating Act
• General principles of the EC law, their impact on the national legal
systems
• The role of the Hungarian Constitutional Court, the fundamental
rights jurisdiction
• The impact of the accession on the jurisdiction of courts (trainings)
• Adaptations of the Hungarian public law system to the decision-
making process of the EU
21

• The impact of the accession on the local authorities
• Other relevant questions (deregulation; international agreements and
accession; translation of acquis into Hungarian; legal practice of the
European Court of Justice on Accession Treaties; responsibility of the
MS for infringements of EC law)
↓
• Right sequences of certain public law steps in Hungary:
closing of the negotiations – adoption of the amendment to the
Constitution (December 2002, Act LXI of 2002) – creation of the
Accession Treaty – referendum – authorisation from the Parliament to
sign the Treaty – signing the Treaty – ratification of the Treaty by the
Parliament – adoption and entry into force of the Act promulgating the
Accession Treaty
22

Summary of the intensive phase:
• The most difficult and important phase
• Intensive preparations and negotiations
• Substantial works and their co-ordination, administration (also new,
faster technics at the end of this phase: legal harmonisation „in less
steps”, legislative packages for the Parliament)
• Important phase for determining and representing the national
interests
• Intensive outside/EU monitoring
• Start of the preparations for certain horizontal issues
• New problems, challenges
23

Lessons:
• Progress in legal harmonisation can accelerate the accession process
• Different kinds of works, difficulties at the same time
• Solutions for the outsider’s alignment and possible delays
• Avoid over-administration !
• Good structures, co-ordination, central administrative capacity and
staff, team needed to get through this difficult and complex process
(see later)
• Role of the Negotiating Delegation (chief Negotiator and the Team, EU
Mission in Brussels)
• Co-operations (external, internal)
• Preparations in time for the horizontal issues
24

4th stage – „ending” phase (2003/2004)
2003/2004: Signing the Accession Treaty – Entry into force of the Treaty
• „Completion” of the legal harmonisation process
• Interim procedure („active observer” – opinion on the proposals of
the EU acts, taking part in the decision-making procedure without the
right to vote)
• Final and overall internal screening and modifications:
- „Negative” harmonisation on the basis of the four freedoms of
EC legislation (internal market) + Act XIV of 2004 on the mutual
recognition related to the free movement of goods
- Deregulation
- Necessary revision of the international agreements with regard
to the accession
25

• Switch to the membership – certain further procedural / public law
questions:
- Governmental co-ordination in order to take part as MS in the
decision-making procedure of the EU
- Co-operation between the Government and the Hungarian
Parliament in the EU affaires (Act LIII of 2004) – medium-strong
model
- Tasks related to the representation of Hungary before the Court
of Justice of the EU (infringement and preliminary ruling
procedure and modifications of the procedural Acts)
- Legal status of the Hungarian MPs of the European Parliament
• „New approach” of the legal harmonisation after the accession
(Government Resolution No. 1036/2004. (IV. 27.) Korm. )
26

Preparations for a different legal harmonisation work after the
accession:
• Differences in planning, monitoring
• Proposals for legal harmonisation on the basis of separate legal acts
• Legal harmonisation database
• Correlation table
• Notification
• Differently formulated legal harmonisation clause (purpose and
formulation)
• Methodological support – new, detailed guideline of the Minister of
Justice 7001/2005. (IK. 8.) IM on the legislation with the purpose of
legal harmonisation (repealed in 2012)
• Others
27

Summary of the „ending” phase:
• Final and also complex works
• Preparations for functioning and operating as MS
• Also as an interim phase and „ready position”
28

Lessons:
• Different kinds of works, more in the field of public law
• Good structure and procedure in the Government can enhance the
determination and representation of the national interests also after
the accession
• Certain legal harmonisation „tools” can be used (more systematically)
before the accession: database, concordance/correlation tables, more
detailed methodological support
29

principallyfinancedbytheEU National interests
in the harmonisation and accession process
• The level and extent of the national ambitions
• Do we know our national interest (and the interest of MS)?
• Efficient representation of the national interests – institutional
structure, national co-ordination, real involvement of the interested
• Different possibilities in the different phases of the preparations,
integration (see above)
• Different possibilities in the different special fields of law (examples) –
profound knowledge of the EU law
• Role of the real impact assessments
• Experiences of the previous negotiations, enlargements – transitional
periods, temporary derogations
• National and European values can live together (but also sensitive
fields)
30

Other practical issues
• „Special language” of the EU law
• Another real challenge: translation of the acquis into the language of
the candidate country (also constitutional question) – co-operation
with the EU
• Not only a traditional translation task but also the creation of the
adequate legal language / legal language reform
• Transposition of the acquis is not equal with the translation of the
acquis: task of the organic transposition of the acquis
• Difficulties in quantity, time, quality
• Difficulties with the translation of the case law of the Court of Justice
of the EU!
• Tools: methodology, database (of terminology, also public), and
special co-ordination and co-operation
• Role of the legal comparison and comparison of the different language
versions
31

Other practical issues
• The Hungarian solution: The task of translation and revision was
outsourced, but the “final quality” and legal, terminological control on
these translations was done by the Unit for Co-ordination of the
Translation (linguist-lawyers) of the European Community Law
Department. →
• Before the accession (2002): 25 linguist-lawyers and 4 terminologists
at the MJ +
• Strong co-operation with the legal experts, codificators
• (Differences in translation co-ordination before and after the
accession)
32

Institutional framework and co-ordination mechanisms in
Hungary (before accession)
Two centres:
1. Institutional framework – legal harmonisation (role of the Ministry of
Justice) / tools (see above in point II.2.)
2. Institutional framework – general co-ordination of the integration and
accession preparations
33

1. Institutional framework – legal harmonisation
• Model: decentralisation (tasks of the ministries/ministers) + strong
central co-ordination (also partnership)
• This model was based on the traditional Hungarian approach of the
preparation of the legislation
• Question: Where to put the central co-ordination? Where is the legal
centre? → Ministry of Justice (in Hungary)
• Speciality: the central legal co-ordination was at the Ministry of
Justice and not at the general co-ordinator
- Negative side: certain conflicts, questions of competences
- Positive side: very strong and professional legal team,
competence-conflicts result in certain positive competition,
good and strong co-operation
34

Suggestion:
• Organic integration of the legal harmonisation exercise in the
traditional administrative structure (if it is efficient)
• One centre of horizontal co-ordination, included the legal – but have a
strong legal and EU law specialised expert team
35

(role of the Ministry of Justice)
Government
Ministry Ministry Ministry of Justice
Ministry of Justice
(Central coordinator and
monitor of the legal
harmonisation)
36

Preparations for the adaption of the legal harmonisation programmes
MinistryofJustice
Letter to the line
ministries giving
the method,
considerations
for the
forthcoming
programming
and demanding
their proposals
Lineministries
Proposals form
the line
ministries
MinistryofJustice
Compilation of the
draft legal
harmonisation
programmes by the
Department (EU)
taking into account
of the proposals;
coordination of the
debate on the draft
Government
37

Conformity checking by the Department (EU) on the drafts
prepared by other ministries
Lineministries
Preparation of
the draft piece
of legislation MinistryofJustice
Substantial control
on the content of
the draft in terms
of legal
harmonisation
(conformity) by the
Department (EU)
(constitutional,
coherence, codification
etc. control by other
departments of the MJ)
Lineministries
Finalisation of the
draft taking into
account of the
remarks from the
MJ and other
ministries;
debate – strong
position of the MJ
Government
38

(Ministry of Justice)
Ministry of Justice:
• Two experts at the Department for Civil and Economic Law
Codification (1991) + Deputy Secretary of State responsible for the
legal harmonisation
• Establishment of the European Community Law Department
(1992/1993) and the staff was increased gradually and continuously
• Later, the Department had two units: Division for Codification, Division
for Co-ordination (+linguist-lawyers)
• Reorganisation: Department of European Union Affaires with four
units: Division for Codification, Division for Co-ordination of the Legal
Harmonisation and Translation, Division for Co-ordination of the
European Matters, Division for Matters of the European Court of
Justice (2004/2005)
39

Two experts at the
Department for
Civil and Economic
Law Codification
European
Community Law
Department
Department
with 2
Divisions
Department
with 4
Divisions
(25-30
experts)
40

41
Department of European Union Affaires (in 2004/2005)
Division for
Codification
(e.g. competition,
public procurement,
intellectual property,
consumer protection +
certain horizontal issues)
[Other Departments of the
MJ had also codification
tasks in other fields covered
by the EU law (company law,
data protection, criminal
law, justice cooperation etc.]
Division for Co-
ordination of the
Legal
Harmonisation
and Translation
Division for Co-
ordination of the
European
Matters
Division for
Matters of the
European Court
of Justice

2. Institutional framework – general co-ordination of the
integration and accession preparations
• Model: decentralisation (tasks of the ministries/ministers; ministerial
responsibility) + strong central, horizontal co-ordination
• Question: Where to put the central co-ordination? This changed
several times (political and personal issue):
• Ministry of Foreign Affaires / State Secretariat for Integration (1996-)
+ Inter-ministerial Committee of European Integration → Minister
without portfolio responsible for European Affaires + Office for
European Affaires in the Prime Minister’s Office (2004/2005) →
Ministry of Foreign Affaires + Office for European Affaires (2006) → …
• Ministry of Finance – also a „horizontal ministry” (financial impacts)
• Integration Cabinet (1994–1998; 2002–2006) – certain group of
ministers
• Decisions by the Government
• Co-operations with the Hungarian Parliament (European Integration
Committee) 42

2. Institutional framework – general co-ordination of the integration
and accession preparations
Government
Ministry Ministry
Ministry of
Foreign Affaires
Ministry of Foreign Affaires –
State Secretariat for
Integration
Inter-ministerial Committee /
subcommittees (working
groups)
43

2. Institutional framework – general co-ordination of the integration
and accession preparations
Government
(State Secretaries’
meeting)
Integration Cabinet
Inter-ministerial Committee (with
subcommittees) co-ordinated by
State Secretariat for Integration of
the Ministry of Foreign Affaires
Ministries
44

Concluding remarks
• Great (legal) challenge
• Lessons to be heard but also national specialities, traditions, solutions
• Legal harmonisation is successful if the country can join the EU – but it
is only one factor
• Not only on papers but also in the practice – it takes time to accept
and adopt the changes, changes required in the people
• Open co-operation with the „society”, stakeholders
• Role of the human resources, good experts – education of EU law at
the Faculties of Law
• External EU matters to be transformed as internal matters
• Can be done and easier in a positive political, social environment
• Sometimes a new MS performs better (for some time) – scoreboards
• Historical process and momentum
45

Thank you for your attention!
Annex: Communication of the Minister of Justice
8002/1999. (IK.10.) IM
on the management of matters relating to law harmonization
(not official translation)
dr. Anita Németh
dr.nemeth.anita@t-online.hu
kozbeszerzesijog@ajk.elte.hu
46

Anita Nemeth, Checking the draft legislation as to their conformity with the EU acquis, Ankara 25 May 2016

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