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© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
Transposition of EU Legislatio...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
WHAT IS LEGAL APPROXIMATION?
DEFINITION
• Law as ...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
WHAT IS LEGAL APPROXIMATION?
• Broader concept: (...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
TYPES OF LEGAL APPROXIMATION
• Unification („repl...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
MAIN STAGES OF LEGAL APPROXIMATION
• Preparatory ...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
THE IMPORTANCE OF THE NATIONAL
PROGRAMME FOR THE ...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Main challenges of legal approximation
• Complex ...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
National interests
in the harmonisation and acces...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Other practical issues
• „Special language” of th...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Other practical issues
• The Hungarian solution: ...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MINIMUM APPROXIMATI...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MINIMUM APPROXIMATI...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MAXIMUM APPROXIMATI...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MAXIMUM APPROXIMATI...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MUTUAL RECOGNITION
...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
MUTUAL RECOGNITION
...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Levels of legal approximation
„GOLD PLATING”
• Tr...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Concluding remarks
• Great (legal) challenge
• Le...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Thank you for your attention!
Annex: Communicatio...
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Anita Nemeth, Levels of legal approximation, Ankara 24 May 2016

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Presentation by Anita Nemeth, Hungary, on the Levels of legal approximation, given at the workshop organised by SIGMA with the Turkish Ministry for EU Affairs on the Transposition of EU legislation into the legal system of Turkey, Ankara 24 May 2016.

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Anita Nemeth, Levels of legal approximation, Ankara 24 May 2016

  1. 1. © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Workshop on Transposition of EU Legislation into the Legal System of Turkey: The ways and means to draft legislation with the aim of transposing the EU acquis into the national legal system Levels of legal approximation 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 Affaires at the Ministry of Justice in Hungary, Member of the Negotiating Team of Hungary) Ankara, 24 May 2016
  2. 2. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT IS LEGAL APPROXIMATION? DEFINITION • Law as a tool and beyond • EU as a special legal community, special nature of the legal system of the EU, EU-MS special legal relationship; legal integration • At the level of the EU: adoption of secondary law in the competences of the EU to achieve the EU objectives, on the basis of the national law of the MS and harmonisation thereof • At the level of the MS: fulfilment of the obligations arising from the Treaties and resulting from the acts of the EU institutions; the process of harmonisation of the national law with the EU law • Before the accession: integration objective, tool; preparations for the EU membership (political, economic and legal criteria) + fulfilment of the general (and gradual) and special harmonisation requirements under the association agreement (if any or similar) 1
  3. 3. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT IS LEGAL APPROXIMATION? • Broader concept: (not only) transposition of the EU law into the national legal system + implementation, enforcement (realisation of individual rights, concrete obligations) + • Effective application in the practice + „equal treatment” for the „foreign origin rules” in the implementation and enforcement • Different terms: approximation, harmonisation, coordination, alignment – inconsistency, but synonyms • Legal basis • Negative and positive integration, harmonisation • Positive harmonisation with certain „deflections” (exceptions, derogations, minimum requirements, options etc.) • Different EU policies – different legal, harmonisation solutions 2
  4. 4. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU TYPES OF LEGAL APPROXIMATION • Unification („replacement”, full competence, mainly Regulations) • Approximation (within the frame of a EU act certain room for „manoeuvre”, mainly Directives) • Co-ordination (coordination of activities, exchange of information etc.) Generally: • EU legislation is not for a unified law; • however, there are fields of unifications; • different legal cultures 3
  5. 5. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU MAIN STAGES OF LEGAL APPROXIMATION • Preparatory stage (establishment of all the necessary preconditions; concept, institutions, mechanisms, technical and personal conditions) • Analytical stage (substantial preparations; definition of priorities, programming/plans, impact assessments, translation; general and special preparations) • Transposition (elaboration of the drafts, conciliations, adoption) • Implementation (adequate application in the practice) • Enforcement (necessary measures of the competent authorities; monitoring, surveillance, inspection controls, penalties, judiciary measures) 4
  6. 6. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU THE IMPORTANCE OF THE NATIONAL PROGRAMME FOR THE ADOPTION OF THE ACQUIS (NPAA) • Role of the NPAA – internal programme (strategy, priorities, also detailed plans) and tool for EU monitoring the progress (Regular Reports) • Structure (comprehensive): - Political criteria, - Economic criteria, - Capacity to assume the obligations for membership (A. within the framework of Association Relations; B. adoption of the acquis) - Administrative capacity for the adoption of the acquis - Global financial assessment of the reforms • Turkish NPAA – National Action Plan for EU Accession • Hungarian solution: + separate programmes for legal harmonisation – more detailed, but in harmony with the NPAA (see later) 5
  7. 7. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Main challenges of legal approximation • Complex issue (in process, in substance) • Impact on the whole legal system; challenge in quantity and quality – it takes time! • Outsider’s alignment and moving target difficulties • If the state, administration, legislation process „functions well”, it is easier to meet the EU requirements • Organic integration of the EU aspects is better than to have double systems (impact on the situation after the accession); also organic, not „mechanical” approach in substance (acceptance + national interests, priorities, traditions etc.) • Expertise, real team work (cooperation within the public administration and outside; even with academics, business actors and civils) + good, strong coordination is a key factor + political support • Strong, dedicated legal team is necessary (generalists + specialists also with wide EU knowledge + languages) 6
  8. 8. AjointinitiativeoftheOECDandtheEuropeanUnion, 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) 7
  9. 9. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU 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 8
  10. 10. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU 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) 9
  11. 11. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MINIMUM APPROXIMATION • Tension between the EU law and national law • EU legal framework or detailed rules and MS are free to maintain or introduce higher standards, more favourable / stringent provisions on the minimum basis, but in line with the Treaties • Based on the primary legislation or secondary legislation • Primary legislation: general (restricted) and special legal grounds (e.g. consumer protection →) Art. 169 (4) of TFEU „Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.” 10
  12. 12. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MINIMUM APPROXIMATION • Secondary legislation: in title, in the provisions, not mentioned expressly - Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers - Council Directive 93/13/EEC on unfair terms in consumer contracts: Art. 8 „Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.” (+ Art. 8a) • Careful examination, case-law of CJEU • Policy questions, traditions, often political decisions 11
  13. 13. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MAXIMUM APPROXIMATION • EU legal acts provide for provisions which are not subject of choice or change, MS shall not exceed the requirements of the EU law • Uniform approach should be ensured • E.g. : in the field of human safety, health: Directive 2009/48/EC on the safety of toys, Annex II Particular safety requirements „IV. Electrical Properties 1. Toys shall not be powered by electricity of a nominal voltage exceeding 24 volts direct current (DC) or the equivalent alternating current (AC) voltage, and their accessible parts shall not exceed 24 volts DC or the equivalent AC voltage.” • Careful examination, case-law of CJEU 12
  14. 14. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MAXIMUM APPROXIMATION Directive 2011/83/EU on consumer rights, Art. 4 Level of harmonisation „Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.” • http://www.europarl.europa.eu/RegData/etudes/note/join/2010/432728/IPOL- JURI_NT(2010)432728_EN.pdf • „Right mixture” 13
  15. 15. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MUTUAL RECOGNITION • A means of removing obstacles to free trade • Principle of mutual recognition and special fields of mutual recognition • Four freedoms (free movement of goods), non-harmonised areas (special meaning), case-law of CJEU; C-120/78. Cassis de Dijon: „It therefore appears that the unilateral requirement imposed by the rules of a Member State of a minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty. There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules.” (Art. 36 of TFEU) 14
  16. 16. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation MUTUAL RECOGNITION • Commission interpretative communication on facilitating the access of products to the markets of other Member States: the practical application of mutual recognition (2003/C 265/02) http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2003.265.01.0002.01.ENG&toc=OJ:C:2003:265:TOC • Mutual recognition clause • Technical regulations, question of level of equivalent protection • Challenge for the legislation and law application • HU: special act: Act XIV of 2004 (repealed) → Act VII of 2009 on the application of mutual recognition 15
  17. 17. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Levels of legal approximation „GOLD PLATING” • Transposition of EU Directives beyond what is required by their provisions without infringing these provisions • Relationship with minimum harmonisation but beyond • Usually can be a bad practice but it depends on the field of law 16
  18. 18. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU 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 17
  19. 19. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU 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 18

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