Linking EU and National Law Accepting the Acquis

1. Linking EU and National LawAccepting the Acquis Peter Goldschmidt Director, EIPA Luxembourg

2. A Membership Condition Is is to ”accept the acquis” i.e., to Transpose, Apply and Enforce the Acquis Communautaire

3. THIS SESSION • A HELICOPTER VIEW • What is the Acquis Communautaire ? • How is the Acquis implemented ? • Direct effct • Some preliminary conclusions ?

4. WHAT IS “ACQUIS COMMUNAUTAIRE”? • Nature of EU Law • Primary Sources of Law • Secondary Sources of Law • Other legal Instruments ?

5. NATURE OF EU LAW - I • The work and actions of the EU is based on the principle of ”Rule of Law” • All work and actions are derived from the Treaties, which are voluntarily and democratically agreed upon by all the EU Member States • Based on the Treaties, the EU Institutions can adopt legislation, which is then implemented by the Member States

6. NATURE OF EU LAW - II • The acquis does not only consist of the Treaties and Secondary Legislation. • Much of the development of EU law has been brought by the interpreta-tive practice of the Court of Justice of the European Union (CJEU) • The CJEU has also established that • The Treaties create not only a community of states, but also of peoples and persons • States as well as persons (legal and individuals) are subjects of EU law • EU law consists also of general principles accepted by all Member States

7. EU LEGAL FRAMEWORK the hierarchy of norms International Treaties National EUROPEAN UNION TEU + TFEU + EURATOM TREATIES and General Principles Primary Law Constitution UNION LEGAL ACTS: Regulations, Directives & Decisions (Council + EP) (Frame-) Laws (Parliament) Secondary Law IMPLEMENTING ACTS: Regulations, Directives & Decisions (Commission) Implementation Acts (Government) Delegated Secondary Law (Implementation Acts) Other OTHER

8. PRIMARY SOURCES OF LAW - I the treaties • Founding Treaties • Treaty establishing the European Coal and Steel Community (ECSC) 1952-2002 • Treaty establishing the European Economic Community (EEC) 1957 • Treaty establishing the European Atomic Energy Community (Euroatom) 1957 • Merger Treaty establishing a single Commission and Council - 1967 • Single European Act, amended EEC Treaty, introducing QMV (SEA) 1987 TREATY establishing the European Union Whereas * we solemnly swear to ... • Recent Developments • Treaty establishing the European Union (Maastricht • Treaty) 1993 • EEC Treaty changed to Treaty Establishing the European Community (TEC) • Introduced new forms and fields of intergovernmental • co-operation (the Treaty establishing the European Union, TEU) • Introduced the 3 Pillar system • Amsterdam Treaty: Revised, consolidated and renumbered TEC and TEU - 1999 • Nice Treaty: Mainly reformed EU institutions (Commission, voting in Council, etc.) in preparation for enlargement – 2003 • Lisbon Treaty: Mainly reforms EU institutions, includes FSJ in co-decision procedure and introduces framework directive, CFSP – 1 December 2009

9. PRIMARY SOURCES OF LAW - II the general principles in particular fundamental rights (human rights) established by: • the constitutional traditions common to the MS • the European Convention on Human Rights • Article 6 TEU, giving the Charter of Fundamental Rights of the European Union the same legal value as the Treaties Some specific Principles: • Equality/Non-Discrimination • The Right to Property, the Right to Freedom to Pursue a Trade or Profession • Legitimate Expectation / Legal Certainty • Proportionality • The Precautionary Principle

10. SECONDARY SOURCES OF LAW article 288 (TFEU) • Directly applicable and binding upon the individuals in the Member States • Directly binding upon the Member States • Directly applicable and binding upon the addressee (individuals or Member States) • Regulations • Directives • Decisions

11. OTHER SOURCES OF LAW Art. 288 TFEU • Opinions, Resolutions, Recommendations, Notices and Guidelines, etc. • May be issued by Council, Commission, Agencies, Parliament • Non-binding • Content as well as actions by EU institutions according to such documents are always subject to CJEU review Other non-binding Sources • Legal principles and norms generally accepted in the legal systems of the Member States • Preparatory documents (e.g. “white papers” or ESC/CoE opinions) • Annual or other reports by Community Institutions • Commentaries (articles and publications)

12. HOW IS EU LAW IMPLEMENTED ? • What does “implementation” mean (definition & practice)? • What needs to be done ? • Who should do it ? • How should it be done ? • When should it be done ?

13. DEFINITION Adoption or ”Implementation” of the Acquis consists of three elements: • Transpose / adopt implementation measures • Apply / establish administrative capacities • Enforce / judiciary

14. What do the Formal Requirements mean in Real Terms? Democracy & Rule of Law Policy, Law and Economic Approximation Institutional and Administrative Capacities to (a) Implement and (b) Participate in Determining Common Policy, Law and Economy Real Terms Formal • Connected with fundamen-tal changes: • New mentality-> accept un-enforceable principles • Legal traditions->maintain or adapt (and if so: to what?) • Human & financial resources • Increased co-ordination • Organisational changes • Different cultures & traditions • -> accept or adapt?

15. WHAT SHOULD BE IMPLEMENTED? What does the Acquis consist of ? • Primary law, incl. general principles • Secondary law • Directives, regulations, decisions • CJEU/General Court (GC) decisions

16. Focusing on Implementation of EU Legisation at the Level of Member States/Candidate Countries WHAT NEEDS TO BE DONE? Part 1

17. SECONDARY SOURCES OF LAW: Directives • Can be addressed to a single, a group or all Member States and are binding upon the Member States to whom they are addressed • Set rules and objectives to be achieved, while leaving some choice to the Member States as regards form and method of implementation • 2 types: minimum and harmonisation directives  • Member States must implement directives, i.e. 1) trans-position, 2) adopt implementing measures, and 3) establish administrative and enforcement capacities • Approximated legislation must be applied and enforced in compliance with the Directive, Treaty provisions, General Principles and interpretations developed by CJEU • Late, wrongful or non-implementation may have consequences (direct effect, state liability, infringement procedure...or delayed accession)  in the future, three types: framework directives

18. SECONDARY SOURCES OF LAW: Regulations – Member States • Measures of general application, applicable to all Member States and with the aim to harmonise • Binding in their entirety upon and directly applicable within all Member States • Automatically become part of the national legal systems without the need for separate national legislative procedures to enter regulations into national law * • MS mustadopt measures (legal, institutional, human and budgetary resources) allowing application and enforcement • MS may not obstruct the direct applicability inherent in regulations – May require adaptation of existing laws and practices* * ECJ: Variola Case 1973

19. SECONDARY SOURCES OF LAW: Regulations – Candidate Countries • Measures of general application, applicable to all Member States • Binding in their entiretyupon and directly applicable within all Member States • Automatically become part of the national legal systems without the need for separate national legislative procedures to enter regulations into national law • Candidate Countries mustimplement regulations, i.e. • transpose into national law (harmonisation) and ensure no other laws contradict new law • adopt implementing measures • establish administrative and enforcement capacities(institutional, human and budgetary resources) • MS may not obstruct the direct applicability inherent in regulations ! * * Transposition laws must include provisons for automatic termination upon accession to the EU

20. SECONDARY SOURCES OF LAW: Decisions – Member States • Are directly applicable and binding in their entirety upon those to whom they are addressed (individuals or Member States) • Are thus directly enforceable in the Member States • Must be notified to the addressees • Are adopted by the Council, but • the latter may delegate power to the Commission to take decisions (Art. 290 TEU) • the Treaty empowers directly the Commission to take decisions in certain areas (e.g. competition, cf. Art. 105 TFEU, and state aid, cf. Art. 108 TFEU) • Cf. Regulations

21. SECONDARY SOURCES OF LAW: Decisions – Candidate Countries • Are directly applicable and binding in their entirety upon those to whom they are addressed (individuals or Member States) • Are thus directly enforceable in the Member States • Must be notified to the addressees • Are adopted by the Council, but • the latter may delegate power to the Commission to take decisions • the Treaty empowers directly the Commission to take decisions in certain areas (e.g. competition and state aid) • Constitute part of the Acquis – and must as such be considered and implemented into national legislation to the extent it is relevant (e.g. SK in the field of competition) • Cf. Regulations

22. STRUCTURE OF EU LEGISLATION • Preamble (”whereas’es”) • Definitions • Substance • Procedures (e.g. comitology, reviews) • MS obligations • Derogations (if any) • Entering into force

23. OTHER BINDING EC / EU LAW: CJEU and GC Rulings for MS • Procedures: • Infringement cases: Enforcement of the Law (against Member States) • Preliminary rulings: Interpretation of EU Law (need for uniform meaning of the law) • Judicial review: Review of the Legality of legal acts/inaction including cases concerning validity, competence and procedure appeals of Commission decisions or inaction staff cases (European Civil Service Tribunal)

24. OTHER BINDING EC / EU LAW: CJEU and GC Rulings for CC • Enforcement of the Law against Member States (infringement cases) • Interpretation of EU Law to ensure uniform meaning of the law (preliminary rulings) • Review of the Legality of legal acts/inaction (=judicial review) ... must be considered and included into national law

25. Focusing on Implementation of EU Legisation at the Level of Member States WHAT NEEDS TO BE DONE? Part 2

26. OVERVIEW: From proposal to implementation Initiation Proposals Decision-making NGOs Implementation (ESC& CoR) (EP) C O M I T O L OG Y National Government Parliament Central Admin. Local Admin. Advisory Committee Ad hoc, Permanent & Consultative Committees Management Committee Regulatory Committee CWG Coreper Commission CoM NGOs NGOs National Authorities

27. NAT. ADMIN. REQUIREMENTS IN CASE OF EC IMPLEMENTATION Implementation by the Commission (and the Member States) Advisory Committees Management Committees Regulatory Committees Jointly referred to as IMPLEMENTATION COMMITTEES (or “Comitology”) MS Tasks: * Advice * Control * Negotiation * National Enforcement (cf. next slide)

28. ADMINISTRATIVE REQUIREMENTS IN CASE OF LAW APPROXIMATION Judiciary National Parliament (New) De-centralised Central Authorities (Agencies) PPP Central Admin • Sub-national Public • Authorities • Regions • Municipalities • Towns…. National Authorities: * Institutions & Procedures * HR and Technology * Knowledge & Skills (and development of same) * Financial Resources * Rule of Law

29. WHEN ? Is there a deadline for implementation ? • Earliest possible time for an EU legal instrument to enter into force: • Dir or Reg => Upon publication in OJ • Decision => Communication to the parties • Other: • Deadline set in legal instrument • Note: special transitional periods sometimes granted What if deadlines are not met? Consequences: Infringement procedure (fines), state liability (damages), image / reputation (loss of impact)...

30. Member States’ Obligations • Direct and Indirect Effect • and • State Liability

31. Member States’ Obligations • Accepting Supremacy of EU Law • Accepting the Direct Effect of EU Law (where applicable) • The Duty to implement EU Law • Using the national powers in a way that is compatible with EU Law • Avoiding conflicts between EU and national law • Accepting Indirect Effect of EU Law (where EU Law overrides incompatible national provisions, procedures and structures) • ‘Repairing’ any damage caused by non-respect of EU-Law (State Liability)

32. DIRECT EFFECT DOCTRINE Certain Treaty Provisions & Regulations Individual Private Parties (horizontal direct effect) + if sufficiently clear and unconditional (vertical direct effect) Member State + if sufficiently clear and unconditional

33. CJEU: State Liability in case ofInadequate Implementation of Directives Doctrine of Direct Effect Non- or Incorrect Interpretation of National Law in Conformity with Directive Liability of the State Cases 6 & 9/90, Francovich and Bonifaci v. Italy & Cases 46 & 48/93 Brasserie du Pêcheur SA v. Germany (directly effective provisions)

34. CJEU: Conditions for State Liability in case of inadequate implementation of Directives (Indirect Effect) Individual Private Parties (no horizontal direct effect) • - but • requirement to interpret national • law in compliance with the directive (vertical direct effect) (however, no inverse vertical direct effect) Member State • + if Directive • confers rights to the individual(s) • is sufficiently clear & unconditional • direct casual link btw. breach of obligation and suffered damage; and • breach is sufficiently serious

35. The Infringement Procedure (Art. 258-260 TFEU) Member State Commission Commission initiates pre-trial procedure (Reasoned Opinion) Member State If no compliance by MS, Commission initiates trial MS initiates trial CJEU judges the case if a failure is found, the State must take the necessary measures to comply Commission considers there to be non-compliance: Second pre-trial procedure (Reasoned Opinion #2) Commission initiates trial, specifying whether a lump sum or penalty payment (fine) should be paid CJEU imposes penalty it chooses (inspired by T.Rentrop)

36. The Preliminary Ruling Procedure Interpretation of EU Law (need for uniform meaning) Art. 267 TFEU CJEU May refer (must do so if no appeal possible under national law) aquestion on the validity or interpretation of EU Law(including the compatibility of national rules, described in the abstract !) Preliminary ruling Member States’ Courts or Tribunals (inspired by T.Rentrop)

37. CONCLUSIONS • ..related to tech-nical aspects of implementation • ..related to the question: • ”why bother ?” !

38. CONCLUSION – Part 1/2 Pre-requisites for Effective Law Approximation • ...clear EU Integration policy and law approximation objectives and a strategy for meeting those objectives • ...that all public authorities / judicial bodies involved or affected develop appropriate organisational structures and procedures • ...that there are plans (for the process and time-wise and “who”) for preparing, applying and enforcing approximated laws • ...and that the officials/judiciary know all of the above and have the knowledge and skills to fulfil their tasks

39. CONCLUSION – Part 2/3 Why Bother? • Advantages include... • (Legal) Certainty • Similar trading conditions • Simpler procedures • Improved Image • Foreign and national investments • Increased/Free Trade • E&S Development • Equal Treatment • Improved Working Environment Membership Obligation under the Treaty • Threats : • Complaints • (Art. 258-cases • EU Fines • National Law Suits • Damages) • Political Pressure • Bad Press & Image • Delayed Accession

40. Contact Address Tel. +352 426 230 1Fax +352 426 237email p.goldschmidt@eipa.eu Peter Goldschmidt (DK) Director, EIPA Luxembourg Consult our EIPA website: http://www.eipa.eu