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Đorđe Stefanovic EPTISA dstefanovic@eptisa

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  1. W O R K S H O P IThe European Union - a goal to achieveHotel “TERMAG”, Jahorina, 19 and 20 September 2012Harmonization of national legislation with the EU acquis Đorđe Stefanovic EPTISA dstefanovic@eptisa.com

  2. Overview of the presentation • Acquis communtaire – what does it mean and scope of; • Environmental acquis; • Acquis – requirements towards EU countries and towards non-EU countries; • Approximation process – obligation of countries that want to join EU; • Transposition of acquis into national legislation. • Bosnia and Herzegovina within context of EU approximation.

  3. Acquis communtaire – what does it mean and scope of • Complex of EU rules defining behavior, goals achieved and results expected in certain areas of the life. • Acquis communautaireincludes: • General principles of EU law; • Primarily legislation – Treaties; • Secondary legislation : • Regulations; • Directives; and • Decisions. • European Court of Justice decisions; • Ratified International Agreements; • Draft legislation – goals, draft of legal documents.

  4. Acquis communtaire – what does it mean and scope of Some numbers related to acquis (report from year 2009): • Directives and Regulation: in force 10,785, amendments - 10,014 in total 20,799 documents. • Agreements, international treaties and other legal acts: 4,115 Int’l agreements, 579 recommendations; 3,545 communications; 51 White paper; 150 Green Paper. Total 8,440 documents. • European Court of Justice decisions 7,968, decisions of te first instance courts 2,354, in total 10,322 court decisions. Court decisions have significant influence on regulatory frame development. • I total, Eur-Lex (in total EU legal inheritance) is comprised by 26,545 documents divided in 20 chapters, together with int’l agreements gives in total number of 30,662 legal acts. • Acquis understand also standards, that leads to the number of more than 80,000. • Annual production of legal acts is estimated on 15,000.

  5. Environmental acquis Content of environmental acquis (please, keep in mind complexity of entire EU legal system, but also the fact that some of documents regulate more than one listed area): • Horizontal legislation – 7 directives; • Air quality – 8 directives and 1 regulation; • Waste Management – 12 directives i 1 regulation; • Water quality – 18 directives; • Nature protection – 3 directives and 2 regulations; • Industrial emissions – 9 directives and 3 regulations; • Chemical – 5 directives and 3 regulations • Noise – 3 directives • EU system emission trading – 6 decisions, 4 directives and 4 regulation.

  6. Influence of the acquis within EU and towards non-EU countries Approximation Unique obligation of membership to EU means that countries intending to join EU must harmonize its national legislation, rules and procedures with an objective to ensure effectiveness of entire corpus of EU rules incorporated in Acquis communautaire.

  7. Approximation process – obligation of countries that intend to join EU • Transposition– means incorporation of the spirit and text of EU legal acts in national legislation of the candidate country. • Implementation or "practical application” – means establishing of institution and providing of budget necessary for executing transposed legal acts. • Enforcement – means creation of adequate control and enforcement measures as a system aimed to ensure full implementation of legal acts.

  8. Approximation process – obligation of countries that intend to join EU Content of the approximation: • Approximation of legislation means elimination of differences between EU legislation and legislation of candidate country, given that differences negatively impact unique market functioning, and also establishment of implementation and enforcement mechanisms for full application of harmonized legislation. • Quick progress should be provided especially in following areas: internal market, competition, workers’ protection, environmental protection, consumers’ protection, financial services and technical rules and standards.

  9. Approximation process – obligation of countries that intend to join EU Methodology and organization of approximation: • Each country identify own priorities and distribution of tasks; • Prepare a Progamme of the approximation; • Identify and strengthen infrastructure for conducting the approximation; • Elaborate general legislation harmonization guidelines aimed to application of legislation process common standards; • Harmonization of legislation with EU one estimates certain problems with existing national legal system, including needs for amending Constitution Act itself. Regulatory impact assessment should be developed for each act to be harmonized: • Consider possibilities for utilization of EU support in best applicable way; • Main actor of work is national administration – system institutions.

  10. Approximation process – obligation of countries that intend to join EU Scope of the approximation • 10 countries that joined EU in 2004 + Romania and Bulgaria that joined EU in 2007 harmonized legislation divided in 31 chapter. • Croatia (acceding country), Iceland, Turkey, Macedonia, Serbia and Montenegro (candidate countries) negotiate on 35 chapters. • Environmental protection has been one of chapters.

  11. Approximation process – obligation of countries that intend to join EU • Interpretation ofEU legislation requires detailed analysis and comparing with national laws. Comparing may produce following conclusions: • National legislation is already in compliance with EU legislation; • National legislation regulates certain area, but is not in full compliance with EU legal acts; • National legislation doesn’t regulate certain area at all. • Comparing– Harmonization with EU legislation must be complex, comprehensive and unique process, taking in account entire legal system, not only specific provision or specific legal act. Practical tools for harmonization conducting are tables of concordance, comparative tables or harmonografs.

  12. Transposition of EU laws in national legislation What does it mean – obligation of harmonization? • Agenda 2000, Volume I, Communication: For a Stronger and Wider Union , DOC/97/6 od 15.07.1997. • IN accordance with principles stated in the Agenda 2000, each country must transpose entire acquis communautaire in national legislation...

  13. Transposition of EU laws in national legislation What to transpose and what not to? • Majority of provisions to be transposed are provisions from directives. • Also to be transposed: technical standards; quality standard rules; and rules on product, processes and activities quality; quality protection; procedures and procedural rights. • Regulations are directly implemental for member states and regulations are supreme acts over any national legal act. States are obliged to prepare structures for direct implementation and enforcement of the regulations. Regulations are not to be transposed. • Decisions are related to specific subjects and decisions are directly implemental for person (legal entity) that addresses. Decisions are not to be transposed.

  14. Transposition of EU laws in national legislation Transposition of directives – precise requirements: • All definitions fromthe directive; • Emission limit values; • Quality standards (environmental quality standards); • Requirements related to certain procedures (EIA); • Testing and obligations related to information providing chemicals); • Reporting to EU institutions; • Technical standards set by annexes and decisions.

  15. Transposition of EU laws in national legislation Transposition of directives – flexible approach: • Adoption procedures; • Public debates; • Information of public; • Surveillance and control; • Enforcement; • Action plans aimed to compliance with certain standard and other requirement; • Discretional requests in procedures; • Developments and implementation of plans.

  16. Transposition of EU laws in national legislation Options of transposition: • Adoption of new laws and administrative arrangements, in accordance with relevant directives, modern understanding of legal science and expertise; or • Amend existing legislation; or • Adopt or amend specific law or bylaw; or • Adopt or amend several laws and/or bylaws; or • Transpose more than one directive through one national law or bylaw.

  17. Transposition of EU laws in national legislation How to interpret the directive: • Preamble; • Explanatory note that EC submits wit directive proposal; • Articles: • Precise requirements; • Facultative requirements; • Discretion provisions; • Other parts of the directive’s text.

  18. Transposition of EU laws in national legislation What should be considered: • Directive’s goal; • Subject of the directive; • Substantial requirements; • Court practice in certain area. Member state may be punished in case of violation of the directive.

  19. Bosnia and Herzegovina in the context of EU approximation • The legal basis for the accession of Bosnia and Herzegovina is the EU's Stabilization and Association Agreement between the European Union and its Member States and Bosnia and Herzegovina (SAA), signed 26. June 2008 in Luxembourg. The Agreement is supposed to be ratified by all countries signatories, EU parliament and Parliament f Bosnia and Bosnia and Herzegovina. • Pursuant to Article V. 3 (D) of the Constitution of Bosnia and Herzegovina and the consent of the Parliamentary Assembly of Bosnia and Herzegovina (BiH PA Decision No. 260/08 of 27 October 2008.), the Presidency of Bosnia and Herzegovina on its 47th session, held on 6th of November 2008. Came out with the Decision on the ratification of the Stabilization and Association Agreement between the European Community and its Member States and Bosnia and Herzegovina (BiH Official Gazette - International treaties 08/10).

  20. Bosnia and Herzegovina in the context of EU approximation • The agreement has not entered into force. EU expects BiH to meet certain requirements (court decision in case “Sejdic – Finci”); • By signing of the Agreement BiH obtained status of “potential candidate state”; • Interim Agreement shall be in force till entering into force of the Agreement; • Through European Partnership EU provides guides to authorities in Bosnia and Herzegovina about reform priorities.

  21. Bosnia and Herzegovina in the context of EU approximation • Bosnia and Herzegovina participates in programme “Progress monitoring of transposition and implementation of EU environmental acquis”. • Report on the Progress for 2012 is under preparation (for BiH this is Report No 7; for other countries this is Report No 15).

  22. Bosnia and Herzegovina in the context of EU approximation Monitoring is conducted through analysis of the state by using of: • Tables of concordance - ToC (monitoring of transposition); and • Implementation questionnaire - IQ (monitoring of implementation). Mechanism similar to ToC exists in national legislation ad is used for internal needs.

  23. Bosnia and Herzegovina in the context of EU approximation • Progress Monitoring on transposition and implementation of EU environmental acquis is executed in close cooperation with EC. • Imitative is launched by EC. • There is a need for utilization of good services provided EC. • Country must organize institutional monitoring of the progress within system of Bosnia and Herzegovina.

  24. Thank you for your attention. Questions?