Reka Somssich, Methods of legal transposition, 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
Methods of legal transposition
Réka Somssich, Hungary
Ankara, 25 May 2016

• „Legal transplant” (Alan Watson).
• Legal transplants are transported from one
legal system to the other (followed as models
or imposed by external forces).
• EU law: obligation to transpose, the rules are
the outcome of lengthy negotiations reflecting
compromises, some rules are themselves
transplants from national laws with a changed
meaning.
EU law as a special form of „legal
transplant”

• „Bolt-on transposition” – UK
Provisions implementing EU law are clearly
separated from national provisions
• „Integration technique” – DE, HU
Provisions of EU law will be integrated into
national legislation, transposing provisions will
loose their foreign origin
As for the style: „copying out” OR „alignment”
How to integrate EU law into
national legislation?

• It should be the general way of transposing EU
law.
• Suitable for framework directives and not
suitable for detailed, technical provisions.
Logical transposition with
reformulation
Directive 2006/123 on the internal market of services aims to abolish all
kind of authorisations. The Directive uses the concept of authorisation in
a broad sense (in the Hungarian implementing Act both authorisations
and declarations are covered by this category)

• The freedom to reformulate is limited by the
interpretation given by the ECJ.
Logical transposition with
reformulation
Article 6 (1) of Directive 1993/13: Member States shall lay down
that unfair terms used in a contract concluded with a consumer by
a seller or supplier shall, as provided for under their national law,
not be binding on the consumer.
Later case-law of the ECJ confirmed that the national judge should
be able to state unfairness ex officio meaning that national laws
freedom is not as wide as suggested by the Directive.

• Literal transposition is inevitable in case of
definitions, lists, precisely formulated provisions
(which could have direct effect), technical
standards.
Literal transposition OR
transformation
(Article 6 (1) of Directive 1999/74) laying hens must have:
(a) at least 750 cm2 of cage area per hen, 600 cm2 of which shall be
usable; the height of the cage other than that above the usable area
shall be at least 20 cm at every point and no cage shall have a total
area that is less than 2000 cm2;
(b) a nest;
(c) litter such that pecking and scratching are possible;
(d) appropriate perches allowing at least 15 cm per hen;

• In traditional areas of private law or criminal
law Member States often try to align the
wording of EU provisions to national legal
terms/the Commission however often asks for
literal transposition
transformation
Article 6 (1) of Directive 1993/13: „the contract shall continue to
bind the parties upon those terms if it is capable of continuing in
existence without the unfair terms.”
First HU transposition: „if the parties would have concluded the
contract even without the unfair terms”

transformation
Article 4 (2) of 1993/13: Assessment of the unfair nature of the
terms shall relate neither to the definition of the main subject matter
of the contract nor to the adequacy of the price and remuneration,
on the one hand, as against the services or goods supplies in
exchange, on the other, in so far as these terms are in plain
intelligible language
In the First HU transposition the overall requirement for plain and
intelligible language as a precondition of fairness appeared in a
separate paragraph

• Alignment of EU concepts to similar legal
institutions of national law (even at the level of
terminology)
transformation
Directive 85/577/EEC: contracts negotiated away from business
premises, in the German implementing law: Haustürgeschäft
(Hungary implemented the Directive in 2004 by using the same
national term but changed the text of the implementing decree in
2008 to the wording of the Directive)

• In case of vague, undefined concepts literal
transposition is not always the best solution
transformation
Article 5 (2) b) of Directive 2001/29: in respect of reproductions on
any medium made by a natural person for private use and for ends
that are neither directly nor indirectly commercial, on condition that
the right-holders receive fair compensation
The Spanish transposing act abandoned the traditional term of
„remuneración” and used the wording of the Directive
(„compensación”) although most probably the EU legislator did not
want to introduce new terminology but to remain neutral

• Broad, undefined concepts can not by their
very nature be transposed literally
transformation
Article 7 (2) of Directive 2003/86 on family reunification: Member
States may require third country nationals to comply with
integration measures, in accordance with national law.
The scope of integration measures must be specified by the
Member States

• Should be avoided by non Member States for
constitutional problems (see: Decision
30/1998. (VI. 25.) AB of the Hungarian
Constitutional Court).
• Transposition of Directives by reference is not
advised for Member States either.
• Member States can extend the scope of
Regulations to excluded areas by references.
Transposition by reference

• Transposition requirement.
• Form and method of transposition lies on the
Member State.
• „Bolt-on transposition”: a single transposing act.
• „Integration”: Integrating transposition
measures into the body of national law (where
they fit in).
• Typical: splitting provisions between
parliamentary act and implementing decrees.
Transposition of the main
secondary instruments: Directives

• Difficulties of transposing horizontal
framework directives (overall screening of the
entire legislation)
Directives
Directive 2006/126/EC necessitated a comprehensive screening of
the national legislation on the maintainability of authorisations (in
Hungary 130 acts had to be amended)

The transposition measures should be legally binding
and available to the public, internal ministerial
circulars are not suitable means,
see: case 361/88, Commission v Germany.
The mere practice of national authorities in line with
the Directive is not sufficient either (see: case 102/79,
Commission v Belgium).
The Directive should be transposed by legal provisions
which are at least at the same legislative level as
provisions which governed the area before the
adoption of the Directive.
Directives

• Annexes to Directives should also be
transposed as they form integral part of the
legal act (see: C-478/99, Commission v
Sweden).
• Recitals of the preamble do not have to be
transposed (but they might illuminate the
meaning of certain provisions).
• The reasoning of the original proposal might
be invoked to clarify the meaning but only
with careful attitude as the text could have
been changed under the procedure.
Directives

• Don’t have to be transposed:
- Provisions binding the Commission or other EU
organs.
- In the pre-accession period: provisions closely
linked to the membership.
- Before accession „partial” transposition is
possible, sometimes inevitable (non-
transposed provisions should be recorded).
Directives

• In Member States directly applicable (no
reproduction is tolerated, provisions or
Regulations cannot be repeated).
• The Member State has to repeal all (not only
conflicting) provisions of its national law falling
under the scope of the Regulation.
• Regulations may foresee the adoption of
national implementing measures (defining
sanctions, setting up procedures, institutions).
Regulations

• Regulation may allow regulatory options to
Member States.
Regulations
Article 5 (2) and (3) of Rome III Regulation (1259/2010/EU) on law
applicable to divorce and legal separation
2. Without prejudice to paragraph 3, an agreement designating the
applicable law may be concluded and modified at any time, but at the
latest at the time the court is seized.
3. If the law of the forum so provides, the spouses may also designate
the law applicable before the court during the course of the
proceeding. In that event, such designation shall be recorded in court
in accordance with the law of the forum.

• The difficulty for Member States with
Regulations is how to interconnect national
legislation with them in areas regulated both
by EU acts and national laws.
Regulations
In the field of private international law the number of EU regulations
adopted is progressively raising. National acts, especially codes on
private international law become therefore truncated as some core
provisions are disappearing from the body of the law. In these acts we
often find „negative scope” provisions referring to the Regulations (in
general or explicitly).

• For non Member States Regulations might
serve as models for legislation (as real legal
transplants)
• „Transposed” provisions of Regulations should
however be repealed upon accession
• These provisions should be recorded (or repeal
clauses should be inserted in the acts
concerned which are activated automatically
the day of accession)
Regulations

• Janus-faced act
• Article 288: „A decision shall be binding in its
entirety. A decision which specifies those to
whom it is addressed shall be binding only on
them.”
• Before Lisbon the decision had to be
necessarily addressed to Member States or
individuals.
• Decisions can be legislative or non-legislative
acts as well.
Decisions

• Do not have to be transposed (but can be)
• Transposition by reference is possible (and
frequently used by Member States)
• Non Member States should treat them like
Directives
Decisions

• Are not binding
• Member States are free to follow them (and
non Member States as well)
• Once transposed, the national legislation
should follow the recommendation (Grimaldi
case)
Recommendations

• Judgments of the ECJ interpreting provisions of
Directives should be taken into account when
transposing them
• Other judgments of the ECJ should be taken
into account if applicable (decisions which
make only sense for Member States will only
be relevant in the future)
• However judgments interpreting provisions of
the Association Agreement or analogous
provisions should be followed
The case-law of the ECJ

• Observance of Treaty provisions should be
ensured after accession
• For that in Hungary approximately a year
before accession an overall screening of the
entire legislation took place
Treaty provisions

• Their screening should start long before
accession
• In areas falling under the exclusive
competence of the EU, the EU will replace the
Member State in multilateral treaties, bilateral
treaties should however be withdrawn
• Any international treaty containing conflicting
provisions with EU law should be withdrawn
International agreements

• Should national legislation reflect exactly the
same terminology used by the EU act? (if the
language version is already available)
• It should be the conscious choice of the
national legislator
• In the pre-accession period translation of the
acquis should go hand in hand with the
transposition (national legislator can still have
an influence on EU terms)
Terminological issues

• Creation of new terms
• Difficulties of finding the right term
• Difficulties of translating certain terms
• Using old terms in new context with changed
meaning
Terminological issues

• Referring to Directives is an obligation for
Member States
• For non Member Sates it will become an
obligation upon accession (therefore it is useful to
insert such references already in the pre-
accession period)
• References function as sources of information
• Member States (and non Member States are free
to require the insertion of references in the case
of other instruments – like Regulations, Decisions)
References to EU measures in
transposing acts

• Basic act and amending acts should be listed
one by one
• Except: codified acts, recasts
• The way references should be formulated, has
to be fixed in advance (for reasons of
tracebility)
References to EU measures in
transposing acts

Useful links
• Legislative Observatory (EP) on the state of play of
a legislative procedure:
http://www.europarl.europa.eu/oeil/home/home.do
• IPEX on subsidiarity control:
http://www.ipex.eu/IPEXL-WEB/home/home.do
• Legal approximation database of Hungary:
http://jogharmonizacio.gov.hu/
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Reka Somssich, Methods of legal transposition, Ankara 25 May 2016

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Reka Somssich, Methods of legal transposition, Ankara 25 May 2016