Marija Pejcinovic, Legal harmonisation instruments, Ankara 25 May 2016

© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
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
Harmonisation and Instruments for the assessment
of compatibility of the draft legislation with the EU
legislation
Marija Pejčinović Burić, Croatia
Ankara, 25 May 2016

Harmonisation
1
Transposition
Implementation
Enforcement

Legal Harmonisation
Drafting laws and techniques of transposition are only a part
of legal harmonization
• Transposition (preparations, analysis and proper
transposition)
• Implementation
• Enforcement
2

Legal Harmonisation
Transposition:
• Drafting the legislation according to the National plan
(NPAEU) (example: a single Directive does not necessarily
means drafting a single domestic legal act)
Implementation:
• Does not only entail adoption of new legislation or
amendments to the existing ones, but also their adequate
application in practice
3

Legal Harmonisation
Preparatory phase:
• Institutions necessary for legal harmonization in place
• Other activities such as: identification and distribution of
respective EU legal acts and defining general information
on principles of harmonization
• Defined roles of the Parliament and Government in the
harmonization process
4

Legal Harmonisation
Analysis:
• Defining priorities based on government priorities, as well
as on international treaties (such as SAA, or other
association agreements)
• Translation of the necessary EU legal acts
• Incorporation of the EU legal acts into the National plan
for EU Accession, in accordance with the previously
defined priorities (who does what and when)
5

Do’s - Checklist for Harmonisation
• Personal and institutional competency?
• To which domestic legal act the directive(s) will be
transposed? For instance, in case of punitive provisions or
establishment of new institutions, a law is needed, and
not a by-law
• Would several EU legal acts be transposed into one law (or
a by-law), or would each EU act be transposed into
individual domestic legal acts?
• Is the harmonization of a particular piece of law envisaged
in one of the key documents (NPAEU)?
7

Do’s - Checklist for Harmonisation
• Translation? Terminology?
• Is the domestic legislation already existent? If yes, to
which degree is it harmonized? Should a new legislation
be enacted, or the existing one amended?
• During drafting of the legislation, regulatory impact
assessment - RIA should inform the political decision
makers on possible effects the new legislation or policy
proposals would have on the economy and other areas
• Should new public institutions be formed?
8

principallyfinancedbytheEU Do’s - Checklist for Legislation
Processing
Define the EU legal acts to be transposed
Analyse the EU legal act in terms of content, preamble,
definition, terminology, background
Analyse and check the national legislation – how and where
to include the transposed EU legal act
Transpose the directive using the correct methods &
techniques (transposition using own terminology, copy-
paste…) while respecting the domestic legal system
Check the compliance of the draft national legislation with
the EU legislation
Fill-in the ToC and Statement of Compatibility
Make RIA or FIA, whichever applies to your system
9

Legal Harmonisation
Adequate enforcement:
• After adoption of legal acts, enforcement of the necessary
measures by the relevant authorities, such as supervision,
inspection, correction measures, fines, court verdicts, etc.
are important in order to provide for complete and correct
enforcement of the legislation in force.
10

EU Acquis Transposition
• EU Member states
 Notification
 Table of Concordance
• Candidate countries
 Legal ground for transposition
 National plan for Acquis Adoption (NPAA) or National
Plan for Accession to EU (NPAEU) or the National
Action Plan for the EU Accession
 Table of Concordance – great assistance during
screening and a condition during EU negotiations
11

Assessment Instruments
Table of Concordance
Statement of Compatibility
Regulatory Impact Assessments (RIA) or Financial Impact
Assessment (FIA)
Implementation Questionnaires, if applicable (Ch 27)
12

Assessment Instruments
Importance and use of Instruments for Harmonisation:
Government: SAA implementation monitoring tool, EU
Accession negotiations follow-up tool
Parliament: assistance with compliance checks for
legisaltion that needs to be harmonised
13

Legal harmonization instruments –
overview of use in Croatia
• Decision on instruments for legal harmonization in effect
from December 1, 2001
• Statement of Compatibility and Table of Concordance
• The Croatian Parliament adopted Conclusion on October
9, 2002, by which the Government is obliged to bring
forward legal proposals to the Parliament, with attached
Statement of Compatibility and Table of Concordance
• Revision 2004 - bylaws included
• Revision 2011 – titles of EU legal acts with which a
legislative proposal is harmonizing, in a separate article in
the first chapter of the legislative proposal
14

Legal Assesment Instruments
• The institutions that are proposing the harmonised
legislation must prepare the legal assesment instruments
and send it to MEFA for check and approval
• MEFA – checks and approves the legal assessment
compatibility
• In case of failure, the process is stopped and sent back for
improvement – the Secretary General of the Government
stops the procedure ex-officio
15

Tables of Concordance (ToC)
16

Assessment Instruments –
Assesses the compatibility with the SAA
Assesses the compatibility with the EU acquis
Provides other important and/or useful information for
harmonisation of legislation, such as participation of
consultants during the drafting of the legislation and their
assessment of compatibilility, translation of relevant EU
acquis in Croatian and translation of the draft legislation in
one of the offical languages of the EU.
17

18

19
• States compatibility of the legislative act proposed with
the EU acquis and legal acts of the Council of Europe
• The line institution proposing the act
• The name of the proposed act
• The compatibility of the proposed act with
 The SAA or other int. Agreement
 Transition period (as per SAA if applicable)
 To which degree the obligations envisaged by SAA are
fulfilled
 If partially the obligations are not fulfilled precise
reasons why
 The link with NPAEU
 Etc.

Implementation Questionnaire
20

Regulatory Impact Assessment - RIA
RIA (Regulatory Impact Assessment) – analysis of effects of
legislation as an important instrument in creating better
regulation. It is meant to measure:
 advantages
 costs
 risks
 effects on competition
 effects on distribution
regarding new or existing legislation.
The question – is a new regulation necessary or other
options could be envisaged?
21

What is Regulatory Impact
Assessment (RIA)?
The RIA should answer the following questions:
 What is the problem?
 Why is it a problem?
 What needs to be achieved (policy, objectives)?
 What are the various options to achieve the
objectives?
 What are the impacts of the different options – and
who will be affected?
 Analysis of the different options
Public, stakeholder consultation
22

When to use RIA?
In an ideal world, the analysis should be used as a basis for
consultation ahead of accepting any option.
• How/where to transpose?
• Which options in directives to use?
• Discretionary provisions in directives?
• Transition periods, if any, required?
23

Options in the Context of Accesion
• In case of the analysis related to the legal harmonization
“doing nothing” option is usually out of question, having in
mind the international obligations and valid treaties.
• In most cases there are only two options:
 partial harmonization, or
 full harmonization with or without transitional periods
24

When and how the RIA is applied?
Preparation of the analysis includes significant resources and
serious political will.
Therefore, the frame of regulation for which the analysis
needs to be done, depends on the decision makers in the
public administration on the national or local level.
In many countries specific regulation legislates:
 for which regulations the RIA/FIA is obligatory
 under which circumstances the analysis is recommended
 which institution names the person in charge of analysis
preparation
25

Methods used for legal
harmonization - reference
Whether or not to make a reference to the EU legal act which
is being transposed?
a) In a footnote
b) In the first article
c) In closing provisions
Usually the national legal drafting rules need to be
changed in order to allow making a reference
Challenging, as it opens up the question of the coherence
of the national legal (and Constitutional) system related to
referencing
26

Reference to the EU legislation in
the National Legislation
• Obligatory for MS (Directives) – reference for published
national legislation
• Different modalities
• Croatia phase I – reference in the explanatory part and in
the Statement of Compatibility – no publication in the OJ
27

Reference to the EU legislation in
the National Legislation
28
• Croatia – phase II - from 2011 (ie. after the accession
negotiations were concluded). The institution in charge for
drafting respective legislation must put in a special article
in the first heading of the legal act the full names of the EU
legislation that the present legislation is been harmonised
with.
• Wording proposed

Conclusion - Do’s and Dont’s
Legal harmonization:
• Do not copy-paste
• Do draft (harmonised) domestic legislation in line with the
domestic rules and legal tradition
• Do the planning first ( who does what when?)
• Do select an adequate domestic legal act and
methodology
29

Conclusion - Do’s and Dont’s
Legal harmonization:
• Do take into account the impact to the legal system, to the
economy, the environment, society...
• Do use transitional periods when justified and do pay
attention to implementation
• It is a continuous task – as both, the EU and the domestic
legal system, are constantly changing
30

Marija Pejcinovic, Legal harmonisation instruments, Ankara 25 May 2016

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Marija Pejcinovic, Legal harmonisation instruments, Ankara 25 May 2016