STEPS TO TRANSPOSITION
GUIDE FOR DEVELOPMENT OF NATIONAL
LEGISLATION ALIGNED WITH THE EU ACQUIS
STEPS TO
TRANSPOSITION
GUIDE FOR DEVELOPMENT OF NATIONAL
LEGISLATION ALIGNED WITH THE EU ACQUIS
Steps to transposition
Guide for development of national legislation aligned with the EU acquis
Authors
Jasna MARIN
Primož VEHAR
This publication has been created under an EU funded project. The contents of this publication
are the sole responsibility of the PLAC Project and do not necessarily reflect the views of the
European Union or the Serbian European Integration Office.
February 2016
PREFACE
The accession negotiations between the Republic of Serbia and the European Union
formally commenced on January 21 2014. Over the course of negotiations, the Republic of Serbia will devotedly work on meeting the EU membership criteria defined
at the European Council in Copenhagen in 1993. One of the criteria is the ability of a
candidate country to fulfil the obligations stemming from the membership, which
means that the country must align its national legal system with the EU acquis. Since
the EU acquis is not a subject of negotiations, they must be fully accepted. Therefore,
during the negotiations modalities and deadlines for harmonization of Serbian legislation with the EU acquis will be discussed and agreed.
The established concept for joining the EU clearly shows that, for the successful conclusion of the EU accession process and the accession negotiations, the alignment of
national legislation with the EU acquis remains essential. A high level of harmonization with the acquis could significantly improve country’s position a—er the accession
to the European Union, increase its competitiveness and competence to deal with
the rules applicable to Member States and, more importantly, enhance its ability to
derive the maximum benefits from the EU membership. Although the Republic of
Serbia started gradual harmonization of legislation by adopting the National Plan for
Integration (NPI) in 2008, the process itself will only be completed at the end of the
accession negotiations.
The aim of this Guide is to contribute to a better understanding of legal harmonisation
related to the accession to the EU. Furthermore, the Guide aims at providing certain
guidelines and recommendations to assist the civil servants actively involved in the
process of harmonization and to make it easier for them to successfully complete a
very complex and demanding task that the Republic of Serbia must fulfil in order to
join the European Union. The Guide is also addressed to a wider audience not directly
engaged in the harmonisation process, but wishes to learn more about it.
Vladimir Međak
*Assistant Director
European Integration Office, Government of the Republic of Serbia
*February 2016
ABOUT “PLAC” PROJECT
This Guide is a result of “Policy and Legal Advice Centre” (PLAC) project and it is
prepared and finalised in February 2016. PLAC is an EU-funded project managed by
the European Union Delegation in Serbia (EUD) and implemented by a consortium led
by DMI Associates in cooperation with Altair Asesores, Hulla&Co. Human Dynamics,
INCOM and European Consulting Group (the Contractor). The project started 10 July
2013 and has duration of 36 months.
The overall objective of the project, as defined in the ToR, is “to improve policy and
legislation processes at the central level in view of accelerating Serbia’s preparation
for EU accession and to improve the current system of legal harmonisation with EU
legislation, to support the development of national legislation aligned with the acquis,
and to ensure proper implementation of the legislation, including the necessary bylaws and enforcement mechanisms”.
One of the specific project objectives, to strengthen the structures related to harmonisation of national legislation with EU legislation, including mechanisms for consultation of relevant external stakeholders, are to be achieved among others by developing
guidelines and upgrading of the methodology for the development of national legislation aligned with EU acquis.
This Guide to harmonisation of national legislation with that of EU (EU acquis) summarises the main principles of the harmonisation process focused on transposition
of the acquis as the first step of that process, and provides a road map for its application in practice.
ABBREVIATIONS
CA
Competent Authority
DSIP
Directive specific implementation plan
EC
European Commission
ECJ
European Court of Justice
EEC
European Economic Community
EMAS
The European Eco-Management and Audit Scheme
EU
European Union
EUD
Delegation of the European Union to the Republic of Serbia
HIs
Healthcare Institutions
MLS
Ministerial Legal Services
MoAEP
Ministry of Agriculture and Environmental Protection
MoH
Ministry of Health
MS
Member State/s
NGO
Non-Government Organisation
NPAA
National Plan for the Adoption of the Acquis
OG
Official Gazette
PLAC
Policy and Legal Advice Centre
PPP
Private Public Partnership
PR 2012;
PR 2013;
PR 2015
Serbia 2012, 2013 or 2015 Progress Report
PSC
Project Steering Committee
REACH
Registration, Evaluation, Authorisation and Restriction of
Chemicals
RIA
Regulatory Impact Assessment
RSL
Republican Secretariat for Legislation
STEPS TO TRANSPOSITION
8
RS
Republic of Serbia
SAA
Stabilization and Association Agreement
SEIO
European Integration Office of the Republic of Serbia
SoC
Statement of Compatibility
TEU
Treaty on EU
TFEU
Treaty on the Functioning of the EU
TOC
Tables of Concordance
ToR
Terms of Reference
UWWTP
Urban wastewater treatment plant
VAT
Value-added tax
WBA
Waste batteries and accumulators
WEEE
Waste electrical and electronic equipment
WFD
Waste Framework Directive
WG
Working Group
TABLE OF CONTENTS
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
About “PLAC” project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1 Main stages of harmonisation process . . . . . . . . . . . . . . . . . . . . . . . . . 17
2 Transposition – the process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.1 Common transposition techniques . . . . . . . . . . . . . . . . . . . . . . . . . 27
3 Transposition – main principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.1 Understanding and application of the principles . . . . . . . . . . . . . . . . . 36
4 Transposition – Steps to follow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5 ANNEX A – Sources of EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6 ANNEX B – Repetitions through Examples . . . . . . . . . . . . . . . . . . . . . . . 81
7 ANNEX C – Implementation Considerations or practical application . . . . . . . . 99
8 ANNEX D – Glossary of Terms and Explanatory Notes . . . . . . . . . . . . . . . 111
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
INTRODUCTION
The Republic of Serbia joined the Stabilisation and Association Process in 2000,
back then as part of the Federal Republic
of Yugoslavia. In 1999, the Stabilisation
and Association Process was launched for
the Western Balkans countries to prepare
them for the European Union membership.
The 2003 European Council Summit in
Thessaloniki officially reaffirmed the European perspective of the Western Balkans.
The Republic of Serbia started negotiations on Stabilisation in 2005. In 2008,
Serbia signed the Stabilisation and Association Agreement (SAA) and the Interim
Agreement on Trade and Trade-related
matters. The Interim Agreement entered
into force on 1 February 2010. The SAA between the EU and Serbia entered into force
on 1 September 2013 (revoking the Interim Agreement).
HARMONISATION IS…
…the process in which countries
aspiring to join the European
Union must align their national
laws, rules and procedures in
order to give effect to the entire
body of the EU law contained in
the acquis.
….alignment of national legislation – and the corresponding
administrative system – so that
they comply with the requirements of the EU acquis, not just
on paper, but also in fact.
The SAA is a comprehensive agreement, concluded for an unlimited period and governing relations between the Republic of Serbia and the European Union. One of the essential elements of the SAA is certainly the fact that, pursuant to Article 72 SAA, Serbia
undertook an obligation to gradually harmonise its legislation with the EU acquis. The
intensity of the undertaken harmonisation obligation varies depending on the area of the
EU law. Whilst this obligation for some areas is of a declarative nature, for others, for
instance: competition and state aid, public procurement, intellectual property rights,
standardisation, accreditation and conformity assessment, very clear obligations are set,
sometimes with the precise deadlines for harmonisation ( Articles 73-79 SAA).
In order to fulfil the obligations prescribed by the SAA and to prepare itself for the
upcoming accession negotiations, the Republic of Serbia adopted the National Program for Integration of the Republic of Serbia into the European Union (NPI) for the
period 2008 – 2012, the first multi-annual comprehensive programme for harmonization of Serbian legislation with the EU acquis. Following further preparations for
opening of accession negotiations, in 2013 Serbia adopted a National Plan for the
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STEPS TO TRANSPOSITION
Adoption of the Acquis (NPAA) for the period 2013-2016, which was later revised in
2014 for the period 2014-2018.
Accession negotiations between the European Union and the Republic of Serbia were
formally opened on 21 January 2014, introducing Serbia to the final, but the most demanding stage of the process of joining the EU. Between September 2013 and March
2015, the analytical examination process, known as screening, was being held and
the level of alignment of Serbian national legislative framework with the EU acquis
was assessed. The preparation and finalisation of the Screening Reports for all negotiations chapters is still in progress.
This will provide for a clearer picture of a level of compliance, in respect of each negotiating chapter.
During the negotiations, the Republic of Serbia will be expected to fully align its legislation
with the EU and demonstrate its ability to implement it on its territory a—er the EU accession. Thus, harmonisation and implementation
of legislation will constitute a key element of
the accession negotiations. The pace of opening and closure of each negotiation chapter
will depend on Serbia’s ability to complete
the legislative alignment and ensure its
proper implementation.
Following the completion of the screening
process, a new revision of the NPAA was initiated in October 2015 to develop an integrated plan for harmonisation of national legislation with the EU acquis.
TRANSPOSITION
This term also means
any legislative, regulatory or administrative binding measure taken by any
competent authority of a
Member State (in this case
Serbia) in order to incorporate into its national legal order the obligations,
rights and duties enshrined
in EU directives.
As previously explained, one of the conditions for EU membership is that the candidate countries align their national legislation with EU legislation in all areas of the
EU acquis. In general, Serbia’s national legal system is largely compatible with that
of the EU Member States’ (MS). The legal basis and institutions for a coherent policy-making system including European integration are in place1 although there are
some challenges identified.
1 http://ec.europa.eu/enlargement/pdf/key_documents/2013/package/sr_rapport_2013.pdf; Progress Report
for Serbia 2013; Analytical Report Accompanying the Document Communication from the Commission to the
European Parliament and the Council, Commission opinion on Serbia’s application for membership of the
European Union states, this is confirmed in the recently issued Report for Serbia 2015, http://ec.europa.eu/
enlargement/pdf/key_documents/2015/20151110_report_serbia.pdf.
13
INTRODUCTION
Obstacles influencing transposition process are also identified during the process of
dra—ing national legislation, transposing provisions of EU legislation, in the Serbian
Ministries. The national guidelines on the uniform methodology for dra—ing legislation (primary and secondary legislation) adopted by the Parliament and the Government respectively (OG RS, no. 21/10 and no. 75/2010) need adjustments in order
to meet additional requirements stemming from the EU harmonisation process. 2
Whilst a need to preserve the coherence of the domestic legal system is understandable and expected, it is nevertheless of utmost importance to ensure an efficient and
sustainable transposition of the acquis in order to achieve a high degree of implementation of the aligned legislation.
Therefore, it has been recognised that, in order
to obtain common standards during the legislative process, general guidelines regarding
harmonisation process and transposition in
particular, should be developed. This is also in
line with the Commission Recommendation of
12 July 2004 on the transposition into national
law of Directives affecting the internal market,
which in Annex, point 2.3, states: “Guidelines are
issued, setting out how transposition should
be carried out and ensuring that there is a
common approach to transposition throughout the administration”.
These common standards should be equally
developed for dra—ing of laws as well as for
secondary legislation. Due attention should
also be paid to the requirements for dra—ing
explanatory notes and tables of concordance
accompanying dra— legal acts.
FLEXIBILITY
In the course of harmonisation of Serbian legislation
with the EU acquis, some
problems could arise out of
the traditions and principles
already developed within
the legal system of Republic of Serbia. They need
to be reviewed and made
more flexible. That way,
the transposition task can
be successfully achieved,
whilst retaining the established principles within the
national legal system to the
greatest extent possible.
In practice, the alignment process is o—en assigned to individual civil servant(s) or a working group established for dra—ing new, EU aligned laws and regulations. The departments within the ministries have limited knowledge of a foreign language to cope
with the complicated process of transposition. Their task in this process is also to
interpret provisions of EU legislation and develop new, or revise the existing national
2 This has been recognised by the RSL and SEIO, and at the moment (November 2015), the revisions and
amendments to one of the two Uniform Methodologies are being dra—ed, addressing the important issues
connected to the harmonisation of the legislation (in particularly transposition) process. See some of the proposed
solutions in Chapter 4 of this Guide.
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STEPS TO TRANSPOSITION
legislation that should not only transpose provisions of an EU act, but also be compatible with the Serbian legal system, tradition and practice. There is additional education available (seminars, trainings, workshops) organized by the RS institutions
(SEIO, SUK, RSJP), but it is le— to civil servants whether to attend the available forms
of education, and then apply their newly attained knowledge.3
Thus, the primary aim of this Guide is to assist the administration of the Republic of
Serbia to adequately address and successfully complete the harmonisation process.
The Guide is not created to be an encyclopaedia covering all possible issues related to
the process of harmonisation and many legitimate legal questions that arise through
this process. It contains practical guidelines which indicate some basic principles,
goals and procedures, as well as possible practical solutions for overcoming obstacles that will inevitably arise, together with those already encountered.
This Guide is dedicated to all civil servants of the Republic of Serbia involved in the
harmonisation process with a hope that it will assist them through this, not so simple
task.
3 It is recommended to develop a training program for the administration including obligatory training for civil
servants to acquire new knowledge – e.g. integration and harmonisation process – but also knowledge of foreign
languages
1
HARMONISATION
Main stages
MAIN STAGES OF HARMONISATION
PROCESS4
The concluded Stabilisation and Association
Agreement (SAA)5, Article 72, provides for the
obligation of RS to gradually harmonise its
national legislation with the EU acquis. The
legal harmonisation became an international
obligation based on the ratified Agreement.
The process of integrating EU law into national
legal and administrative systems is called the
approximation process. Approximation and
harmonisation, (sometimes “alignment”) are
used mostly as synonyms when discussing
the process of transposition, implementation
and enforcement.6 “Harmonisation”7, in simplified terms, means alignment of the national legislation with the EU law, but it is a quite
complex exercise and requires knowledge of
EU and national law, good analytical skills and
nomotechnical knowledge, i.e. expertise in
legislative dra—ing, knowledge of general legal
concepts, etc.
IMPACT
ASSESSMENT
There is always a present risk that those who are
preparing and subsequently proposing laws (mostly
Ministries), have a tendency
to consider the evaluation of
financial and other consequences of the new legislation more as an administrative duty then a necessity.
In the preparation of the effects of the legislation – regulatory impact assessment
– they o—en do not take into
account all direct and indirect effects associated with
the subsequent implementation of the laws.
There is no much difference between the two
terms where the “harmonisation” has been
defined as “Community law measures for the
approximation of the provisions laid down by a
law, regulation or administrative action in the
Member States which have as their objective the establishment or functioning of the
internal market”8. Hence, legal approximation is “a part of the EU’s internal process
4 Source for this Chapter: Implementing Community Environmental Law, Communication from the Commission,
COM(96) 500, 22 October 1996
5 In September 2013, a Stabilisation and Association Agreement between the EU and Serbia entered into force
6 Therefore these terms are used as equivalents in the rest of this paper, with the term “harmonisation” as a
prevailing term
7 Harmonisation is the opposite of “unification” – the latter to be understood as the process where the objective of an
EU legal act is to regulate a specific issue throughout Europe in the same manner. This applies to directly applicable
EU legal acts. For more details around and about the EU law and its sources, please see Annex A of this Guide
8 Curtin, D.M., Smits, J.M., Klip, A. and McCahery, J.A. (2006) European Integration and Law. Oxford
1
18
STEPS TO TRANSPOSITION
of establishing a specific system of law with Member States actively participating in
dra—ing the provisions and then implementing them.” The process is, therefore, both
vertical (between the EC’s institutions and Member States) and horizontal (among
Member States getting closer to each other as a result).
There is also a term “convergence” used when talking about harmonisation. Unlike
approximation, the convergence results in common approach or goal without regulation, so it could be therefore called voluntary or “accidental” harmonisation (e.g. when
courts in various MS come to similar rulings on similar cases under and within the
different systems and procedures).
EU Member States are obliged to incorporate
requirements of the EU legal acts into their national legislation. In principle, for EU Member
States only EU Directives are law harmonisation instruments. Directives as a harmonisation tool are not directly applicable to Member
States and aim to lay down rules whilst leaving
the Member States room to regulate the issues
in different manner, but the goal is to achieve
the same objective. Therefore, directives are
binding to MS as to “the result to be achieved”.
They are published, but need to be notified to
the MS. Directives usually have a specific period of time within which MS has to transpose
the provisions into the national legal system.
FULL
HARMONISATION
To achieve full harmonisation, it is required not only to
adopt new laws or to amend
the existing ones, but to adequately implement them
and regulate their impact in
practice.
On the other hand a Regulation has a general application – it is binding in its entirety
and is directly applicable to all Member States. Regulations must be published in Official Journal of EU and come into force on the date specified in them, or if the date is
not specified, on 20th day following their publication.
Decisions are binding in their entirety upon those to whom they are addressed. They
come into effect upon a notification. Unlike the regulations, they have no general application, but rather are addressed to one or more MS or one or more undertakings.
There are three main stages of harmonisation process: transposition, implementation and enforcement.
Table 1 further below contains an overview of the main attributes for each of the
EU instruments and also indicates more details of relevance for the harmonization process.
19
MAIN STAGES OF HARMONISATION PROCESS
Before we arrive to them, we need to go through some practical steps (i.e. through a
preparatory and analytical stage) which are also very important.
Preparatory and Analytical stage
This stage means that the establishment of the necessary infrastructure of institutions for the EU integration process has been decided and defined, as well as a series
of technical activities for the law harmonisation, including collecting, translating, distribution and presentation of the EU acquis (e.g. legislation, general principles, etc.).
The priorities for transposition are based on the previously agreed and defined national sectorial and other strategic priorities as well as on the SAA.
The establishment of Serbian European Integration Office (SEIO9) that is developing
various instruments for harmonisation (Tables of Concordance – TOC, a statement of
compliance, etc.) and is responsible for the translation of EU acquis, has empowered
the EU integration process in Serbia. The National Programme for Adoption of Acquis
(NPAA) is in place and is regularly being updated. All information on the bodies established for implementing the SAA and those responsible could be found on SEIO’s web
site10 (also, see Figure 1 below).
Transposition practically means a development of new legislation or amending the
existing legislation in line with the previously elaborated legal transposition plan.
This term also means any legislative, regulatory or administrative binding measure taken
by any competent authority of a Member State
(also a candidate country like Serbia) in order
to incorporate the obligations, rights and duties enshrined in EU directives into the national
legal order. Transposition includes not merely
the reproduction of the words of a directive into
national law, but also any additional provisions,
such as amendments or a repeal of conflicting national provisions, which are necessary
in order to ensure that the national legislation
as a whole properly reflects the provisions of a
directive.
TRANSPOSITION
…is a process through which
EU MS give force to EU law
(usually Directives) through
various
implementing
measures, most relevantly
– by adopting national
primary and/or secondary
legislation.
During this stage, when the actual harmonisation of the Serbian national legislation with the EU law begins, the national experts
have to prepare new dra— laws or propose amendments to the existing laws and
9 http://seio.gov.rs/home.50.html
10 http://seio.gov.rs/serbia-and-eu/who-is-who/who-is-who.62.html
1
20
STEPS TO TRANSPOSITION
by-laws, in order to attain compatibility with EU law. Transposition stage is in the
focus of this Guide.
Implementation or practical application is defined as the incorporation of EU law by
the competent authorities into individual decisions, for instance, when issuing a permit or devising an execution of a plan or programme. EU legislation is directly applied
by national authorities in case of regulations and directly applicable provisions of directives (only valid for MS). However, once a directive is correctly transposed, it is applied by national transposing measures, e.g. provisions needed in order to enable
competent authorities to perform their obligations and to take the appropriate decisions and measures. To this end, it is important to develop and strengthen institutional infrastructure such as training of human resources and a provision of adequate financial means and adequate physical infrastructure, a collection processing and
dissemination of information and so on.
Enforcement A—er adoption of legal acts, necessary measures should be taken by the competent authorities to ensure that law is being
complied with in full. In general, enforcement
of law is the collection of rules imposed by
authority ensuring their observance or obedience. Enforcement is defined broadly as “all
approaches of the competent authorities to encourage or compel others to comply with existing legislation” (e.g. monitoring, on-the-spot
controls, sanctions and compulsory corrective
measures).
Some examples of enforcement measures:
monitoring, surveillance, inspection/controls,
issuing of licences and permits, enforcement
through penalties, judiciary measures, collection of information and periodic reviews and
assessments of compliance. Monitoring and
inspection could be also considered as a part of
the implementation stage.
ENFORCEMENT
AND SANCTIONS
IN EU
The proposal for new EU
GDP regulation (EU General Data Protection Regulation) envisages for the
following sanctions to be
imposed: a warning in
writing in cases of first and
non-intentional non-compliance, regular periodic
data protection audits, a
fine up to 100 million EUR
or up to 5% of the annual
worldwide turnover in case
of an enterprise, whichever
is greater.
The EU MS are also reporting to the Commission as a part of their obligations to implement and enforce.
EU laws usually do not incorporate or envisage concrete sanctions/penalties. In
rare cases, sanctions are defined as a maximum/minimum range or amount or
MAIN STAGES OF HARMONISATION PROCESS
21
percentage and a type of sanction required and/or preferred – like in the proposed
EU General Data Protection Regulation (GDPR) – to replace EU Data Protection Directive 95/46/EC. The GDPR should be adopted by the end of 201411 and it is planned
to take effect a—er a transition period of two years. See the box/figure “Enforcement
and sanctions in EU”. See also Directive 2014/57/EU of the European Parliament and
of the Council of 16 April 2014 on criminal sanctions for market abuse (Market Abuse
Directive).
11 Not yet adopted, November 2015
1
2
TRANSPOSITION
Process
TRANSPOSITION ³ THE PROCESS
The coordination of transposition process is
usually organised by the relevant Ministry responsible for the sector in question (or other
institution in the executive branch with delegated powers for legal dra—ing in a specific case)
and depends on many things, non-the less on
the capacity of a Ministry. Typically, a Minister
nominates a team for the dra—ing of legislation,
– a Working Group (WG). The Minister oversees
the entire procedure regarding milestones, reviews and, finally, approves legislation – as relevant. See also Annex D, no. 12. The process of
transposition in the Republic of Serbia on the
Governmental/Ministry level follows the logic
described and illustrated in Figure 1.
PRINCIPLE OF
BINDING LEGAL
MEASURES
„A Member State cannot use non-binding administrative measures to
achieve the aims of the
directive (e.g. Instructions,
guides or administrative
orders). Non-legal methods of transposition are in
conflict with the binding
legal nature of directives.”
The transposition starts with the planning
of transposition of the EU legal texts (in the
NPAA), followed by translation of the EU legal
texts into Serbian language and subsequent
transposition of the EU legal texts into law or secondary legislation through dra—ing of new or amending the existing law and/or secondary legislation, consultations
within the administration, the public, civil society and industry, checking compliance
within the Serbian legal system (the tasks for the Republican Secretariat for Legislation – RSL), and it ends with the adoption by the Parliament or Government or
Ministry (depending on the type of the legal act) followed by publication in the Official
Gazette of the RS.
2
26
STEPS TO TRANSPOSITION
Figure 112: Transposition process in the Republic of Serbia
Government
I. Planning
SEIO
NPAA
Secretariat for Public
Policy
Ministry
Transposition plan
Correlation table
Translation of
EU text
RIA
Legal analysis
Consultation
Translation
Approval
Publication
Republican Secretariat
for legislation
II. Transposition
III. Consultation
IV. Publication
The above model has been established with the intention to organise a functioning
system for harmonisation process, which should ensure a smooth transition from
one set of rules to another.
The problem with all good intentions is that they sometimes do not produce planned
results. In practice, the flow of the approximation exercise in Serbia is quite different
from the “theory” and planning, as set in the NPAA. Delays and a poor rate of compliance in transposing directives are all too o—en the result of domestic administrative
problems, a lack of the necessary capacity within the ministries and in particularly,
inadequate understanding of, very o—en, complex EU legislative texts.
12 This is the status as of November 2014
27
TRANSPOSITION – THE PROCESS
Other major obstacles, as previously mentioned above, are very rigid domestic rules,
e.g. the adopted uniform methodology for dra—ing and developing legal acts in Serbia,
applicable for all the administrative staff that deals with transposition of EU acquis.
These rules are about to be changed but only for secondary legislation. The changes
are proposed jointly by the RLS and the SEIO and are about to be adopted13. See more
details on this topic further in the document (Chapter 4. III)
Transposing the EU legislation, in a narrow sense, means the dra—ing of national legislation. Whilst the domestic legal system and domestic tradition with accompanying
terminology is to be respected insofar as it does not make any obstacles to an efficient transposition, in a case of the opposite and despite of the national rules, the EU
law has to prevail. The national rules have to be changed to ease the transposition
process. These changes are necessary to enhance the EU integration process and
should be made as soon as possible.
2.1 Common transposition techniques
A core part of the law harmonisation process
is the transposition of EU provisions into national legal acts. The domestic legislation concerns Serbian citizens and economic operators
and therefore, national legal dra—ing tradition
should be respected and the used language
must be clear and understandable.
GOOD PRACTICE
It is always beneficial to
review the transposition
practices of the Member
States and to check the rulings of the European Court
of Justice.
http://curia.europa.eu/
Logical transposition with reformulation. Reformulation is a preferred way of transposition
due to reasons of preservation of the national
legal system and legal terminology. It gives the
possibility to exclude irrelevant parts for transposition of directive and incorporate other parts
at one’s own discretion pursuant to the national legal order. This kind of transposition
also allows for different wording to be used compared to the Directive – the crucial
is that objectives set in the Directive are met. This technique is used most frequently
since it allows for transposition in accordance with the national legal terminology and
contributes to preservation of the national legal tradition and dra—ing techniques.
Also, a single directive could be transposed by one or several legal acts. It’s possible
that several articles or provisions of a national legal act could transpose one provision
or one article of a directive.
13 Information as of November 2015
2
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STEPS TO TRANSPOSITION
A downside of this process is that it takes time and resources. In addition, there is
always potential danger of mistranslation and misinterpretation of EU provisions.
The “foreign” origins of provisions could contribute to it, since they may not be clear
and understandable enough. Some terms and concepts may not exist in Serbian language or mean something completely different or are not usually used in legal sense.
A directive requires of Member States to achieve certain results, but leaves to the
national authorities the choice of a form and methods to meet them, e.g. setting penalty measures to properly transpose and enforce the provisions of the directives are
usually le— for the competence of Member States.
Despite its downsides, it is recommended for the directives to be transposed into the
national legislation by reformulation and not by “word for word” incorporation
(verbatim).
Literal transposition. (copy-out, verbatim
transposition) Certain parts of an EU act should
be literally transposed into a national legal act.
Copying the EU legislation into national law in
an unchanged form is preferable in a case of
long and very technical texts, where an EU act
contains technically detailed parts, e.g. like Annex IV of the Machinery Directive 2006/42/EC.
TRANSPOSING BY
REFERENCE
In rare cases transposition
is theoretically achievable
through reference to the
relevant parts of a particular
type of the EU legal act (a
directive) for the same reasons the “copying” method
is used, e.g. when there are
technical annexes to the directives. Such an approach
is used by some of the EU
Member States. However, it
should be avoided as it could
create confusion and, in the
case of a candidate country,
even legal uncertainty.
Whether or not to adopt the technique of
transposition through a literal incorporation
of the text of an EU Directive? The technique
of “copying-out” somewhat ensures that Serbia
is assuming the obligations arising from the
SAA. On the other hand, this style is undermining the national style of dra—ing legislation that
is deemed appropriate for Serbia. In addition,
there are provisions in EU legislation that cannot be transposed by simply copying in it into
Serbian legislation, since it would not make
sense in the context of national legislation, nor
would it be possible to implement. It is therefore recommended to copy only definitions,
formulas, very technical annexes, etc., and in
other cases it is better to use a “substantial transposition” or “reformulation” whereby
the purpose and meaning of EU legal acts have been achieved. Moreover, this technique is also recommendable because of the language of an EU legal act (directive)
which is sometimes difficult to understand since they are usually created as a result
of compromises of Member States.
TRANSPOSITION – THE PROCESS
29
Hence, this method should be used for transposition of definitions, charts, formulas,
numbers, different limits set and similar, where literal transposition ensures a full and
correct fulfilment of the imposed obligations.
Transposition by reference (rarely and exceptionally used even in MS) Transposition
could also be done by making reference in a national legal act to an internationally
applicable provision or to an EU legal act or its annex or part of it. Unfortunately, such
a reference could cause different problems, legal and practical. No one expects realistically of its own citizens to examine and know the legislation of a supranational organisation or a foreign state(s). Furthermore, for a candidate country like Serbia, this
approach is directly in contradiction with the Constitutional provisions and national
legal order which clearly establishes the divisions of powers on legislative, executive
and judicial, and there is no space under the current constitutional order to refer to a
foreign legal act. Even if possible, the transposition by this method will not be adequate for a proper implementation. In order to fully achieve the goal of the directive,
more detailed and precise provisions are necessary. Therefore, this method should
be strictly avoided.
2
3
TRANSPOSITION
Main principles
TRANSPOSITION ³ MAIN PRINCIPLES
Although not yet an EU Member
State, it is necessary for Serbia
to introduce some of the main
transposition principles based on
various rulings of the European Court of Justice (ECJ) related
(among other things) to a proper
transposition of directives or directives’ provisions. These decisions
encompass principles and rules
applicable to the process of transposition of directives addressed
to MS. Even though they concern
Member States, the interpretations
of the EU law by ECJ (case law) are
the essential part of the acquis, and
should be considered obligatory
guidelines for the process of transposition of the EU acquis into the
national legislation of the RS.
Some of the most relevant principles, directions and recommended
methodology for transposing the
EU law into the national legal order
could be summarized as follows:
PRINCIPLE OF NO
DEROGATION FROM
TRANSPOSITON
ECJ has in particular underlined that “a
Member State may not rely on practical provisions or situations affecting its
internal organisation in order to justify
non-compliance with obligations set
in the directive or to justify non-compliance with the time limits for transposition of the community directives”
– e.g. – argument based on difficulties
relating to the federalism of Member
States.
(European Court of Justice, Commission v Italy – case no 163/78; Commission v. Spain, case no C-298/97)
A Member State may not rely on internal difficulties, in order to justify the
non – observance of obligations resulting from community law
(ECJ Commission v Greece, case
C-387/97: Commission v France)
I
National legal instrument and
measures transposing directive must be legally binding
and effective – applicable (e.g. acts of National assembly – laws and acts of
the Government and the Minister/Ministry; rulebooks and regulations, collective
agreements and jurisprudence – “case law”), and must be addressed to the
public and officially published.
II
Obligation to interpret the national law with regard to the directive – National
jurisdictions are obliged insofar as possible to interpret their national law with regard to the directive and its purpose in order to achieve the result referred to by Ar-
3
34
STEPS TO TRANSPOSITION
ticle 249 of the EC Treaty, para 3 (now Art 288 TFEU): „A directive shall be binding,
as to the result to be achieved, upon each Member State to which it is addressed,
but shall leave to the national authorities the choice of form and methods.”
III
Accurate and a precise text of the directive does not have to be transferred into
national law, i.e., word for word transposition is not mandatory, but what is relevant is whether the domestic law meets the requirements and the goals of a
directive.
IV
In addition, the language of national law must fully reflect a directive. In practice,
in order to achieve the results required by the directive, it is necessary to formulate such provisions that are more detailed and precise than widely worded
obligations from a directive. In this respect, due attention must be paid not to
restrict the scope of the obligations contained in the directive.
V
It is especially important to apply a requirement that definitions from EU directives are literally and fully transposed into national legislation
VI
Legal and natural persons must be able to exercise their rights deriving from EU
directives in national courts.
VII As a rule, general principles of the EU acquis must be transposed by Law in the
Parliament.
VIII The provisions affecting in particularly rights and obligations of natural persons
must be transposed by Law in the Parliament.
IX
Technical and special provisions that will frequently change can be transposed by
legal acts of a Government or Ministries.
X
The MS cannot make excuses for non-transposition due to inadequate or rigid
national regulations that are inadequate for transposition, or by a reason of internal territorial and organizational set up of a State.
XI
Directives themselves are not directly enforceable – it is needed to adopt national
measures within a specified period during which the national public authorities shall ensure that no contrary provisions are applied14.
XII Whether or not the activities referred to by the directive exist within the national
territory does not at all modify the obligation to fully transpose the.15
14 ECJ, 18th December 1997, case C 129/79, Commission v Belgium
15 ECJ Commission v Greece, case no C-214/98
35
TRANSPOSITION – MAIN PRINCIPLES
XIII All MS have to take all necessary measures within the prescribed time limit set
in the directive in order to comply with the directive. According to the Court, the
MS (their governments) “in the preparatory workings of the directives must
be able to develop the legislative provisions necessary to their implementation within the fixed time limits”.16 “A Member State may not plead provisions,
practices or circumstances in its internal system to justify a failure to comply
with the obligations and time-limits laid down in Community Directives“.
How is this relevant for Serbia?
Even though the candidate countries
have no obligation to (as sovereign
states, including Serbia, who did not
transfer the parts of its sovereign
rights to the EU) adopt such measures and legislation, the intention
embodied through the SAA to join the
EU has similar effect on them. Serbia
has interred into the negotiation process with the EU and its progress towards becoming a member country
is further enhanced. At this stage of
the integrative process, Serbia needs
to adopt as much of the acquis as
agreed and all that in a way which is
undisputable (neither by the Commission before the accession or by
the ECJ a—er the accession). Furthermore, Serbia has to show its intention to assume the EU acquis clearly
and undoubtedly, which means to do
what is needed in order to transpose,
implement and enforce the EU legislation in a manner set by the ECJ rulings and the established principles
and practices.
INTERPRETATION OF THE
NATIONAL LAW WITH
REGARD TO DIRECTIVE
The Member States' obligation arising from a directive to achieve the
result envisaged by the directive, and
their duty under the Treaty to take all
appropriate measures, whether general or particular, to ensure the fulfillment of that obligation, is binding on
all the authorities of Member States
including, for matters within their jurisdiction, the courts.
It follows that, in applying the national
law and, in particular, the provisions
of national law specifically introduced
in order to implement Directive, national courts are required to interpret
their national law in the light of the
wording and the purpose of the directive in order to achieve the result
it pursues.
The EU court rulings are in particularly relevant for Serbia, for example,
in case of Chapter 3 of the acquis – the Lawyers’ Services Directive (Directive 77/249/
EEC), the Lawyers’ Establishment Directive (Directive 98/5/EEC), as well as the general regime prescribed in the Professional Qualifications Directive (Directive 2005/36/
16 ECJ, Commission v Italy, case no 221/83, Commission v Belgium, case no 301/81
3
36
STEPS TO TRANSPOSITION
EC) and Directive 2013/55/EU. The Court judgments concerning interpretations of
Directives’ provisions are of outmost relevance, since they clearly interpret provisions
of the acquis in this field which provides a basis for a proper, correct and uniform implementation of the free movement of lawyers’ acquis throughout the EU MS.17
Furthermore, by adopting the NPAA, the Serbian Government has established the deadlines
for transposition and implementation of the
EU acquis into national legislation in all sectors
under negotiating chapters. The planning and
setting the deadlines has been done in relation
to the obligation of Serbia stemming from SAA
of gradually adopting harmonising legislation.
Serbia´s striving towards the EU membership
has to be shown through the commitment and
through avoiding undue delays in implementation of transposed and adopted legislative
measures as much as reasonably possible.
MAIN PRINCIPLE
Article 288 TFEU (previously Art 249 TEC, para 3)
“A directive shall be binding, as to the results to be
achieved, upon each Member State to which it is addressed, but shall leave to
the national authorities the
choice of form and method.”
Example: In the environmental field, e.g. waste
management, the EU has chosen mainly to
use directives to legislate waste measures, allowing Member States some freedom in chosen method for putting the policies into
operation, but the ‘targets’ set out in directives are understood to be legally binding.
The implementation of waste management law within the EU suggests that Member
States were, in some cases, not prepared to implement within the given timescale, as
previously agreed. The targets that are not met are the subjects to infringement proceedings before the ECJ. It is very important that candidate countries show serious
commitment through a targeted initiative to make adequate plans for meeting the
directives’ requirements, since this would be a sound starting point for negotiating
eventual transitional periods.
3.1 Understanding and application of the principles
These summarised principles (mentioned above) are the result of rulings that regard
different disputes before the ECJ through many years. The case law of the ECJ has
specified the scope of the obligations incumbent upon MS but has also noted that the
17 Case C-313/01, Christine Morgenbesser v Consiglio dell'Ordine degli avvocati di Genova ; The Court draws attention
to the principles established by its own case-law: if the national rules do not take account of learning, skills and
qualifications already acquired by a national of another Member State outside the host State, the exercise of the
freedoms of establishment and movement is thereby hindered
37
TRANSPOSITION – MAIN PRINCIPLES
directive may produce legal effects in favour of private individuals. This has to be also
bared in mind when transposing the directives into domestic legislation.
In this respect, the earlier mentioned
freedom of MS “a directive shall be
binding as to the result to be achieved
upon each Member State”, should not
be considered as being absolute (e.g. the
choice of a method of enforcement). Harmonisation with the EU legislation must
be assessed on a comprehensive basis in
light of entire legislation not upon single
provisions. A directive may, for example,
set out minimum directions in which
case the MS have a freedom to adopt
stricter measures and norms than those
that are the subject of the EU intervention.
This choice is only limited insofar as “the
Member State concerned do not call into
question the coherence of the community intervention in the domain in question
and that they are applied in a non-discriminatory manner and do not hinder
the exercise of the fundamental freedoms
guaranteed by the Treaty”.18 This also applies to candidate countries.
INTERPRETATION OF
EU LAW
Case law is also a source of EU
law. The EU Court of Justice interprets EU law to make sure
its uniform application in all EU
countries.
When searching for certain EU
legal act it is advised to check
the Court decisions connected
with this legal act.
The Court’s interpretations will
help us many times to understand the legal act and connect
open issues and possible problems not only during the transposition but also in implementation.
Reading Recitals/preamble of
The provisions of a directive must be iman EU legal act always helps in
plemented with unquestionable binding
understanding aims, purpose
force and with the specificity, precision
and intention of the act.
and clarity required in order to satisfy the
need for legal certainty, which requires
that, in the case of a directive intended to
confer rights on individuals, the persons concerned must be enabled to ascertain the
full extent of their rights.19
ECJ held that EU law may only be transposed in national law by means of “national
provisions of a binding nature which have the same legal force as those which
must be amended”. It means that if transposition of provisions of a directive lead to
18 C 2/97 Judgment of the Court of 17 December 1998. – Società italiana petroliSpA (IP) v Borsana Srl. – Reference
for a preliminary ruling: Tribunale di Genova – Italy
19 C-332/04, Commission v Spain, Commission v Ireland
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38
STEPS TO TRANSPOSITION
amendments to a law adopted by a parliament, those provisions may not be transposed by secondary legislation (regulation, decree, orders, etc.), which are by their
nature, subsidiary to the law and o—en used as implementing legislation for the law.
Another example is different circulars and guidelines adopted by minister/ministry,
or by mere administrative practices. The Court held in the same case that: “This is not
the case of “mere administrative practices, which by their nature are alterable at will
by the authorities and are not given the appropriate publicity.20
In addition, the publication of a Ministerial notice, leaving the unchanged legislation in force and thereby “leading to
an ambiguous legal situation giving
rise to legal uncertainty”,21 cannot be
considered a proper implementation of
the EC law. Two parallel systems cannot
coexist and therefore the changes in legislation are needed.
Legislation adopted by the Parliament
and the regulations of the Government
and the Ministers are legally binding
per se and are therefore acceptable as
means for incorporating the EU law
into national legislation. Administrative practice and circulars, including
all kinds of instructions and orders to
authorities, are not adequate means
since they are neither addressed to
the public nor published. National administrative practice, which is easy to
change, is not sufficient for incorporating a directive into national law.22
ABSTAINING FROM
ADOPTION OF
CONTRADICTORY
PROVISIONS
National legislation violating or
contradicting the EU acquis, international agreements or jurisprudence of the European Court
of Justice, cannot be adopted or
remain unchanged.
Note: EU legislation should be interpreted having regard to the context, not as an isolated text.
When interpreting, for example, definitions in a directive, the judgment of the ECJ
shall be followed. For example: the ECJ has consistently stated that the definition of
waste must be interpreted widely in order to be consistent with the aim of the Waste
20 C-168/85, Judgment of the Court of 15 October 1986, Commission/Italy, ECR 1986, p. 2945, point 13; Judgment
of the Court of 2 December 1986, C-239/85, Commission / Belgium, ECR, p. 3645; Judgment of the Court of 3
mars 1988, C-116/86, Commission/Italy, ECR, p. 1323); Judgment of the Court of 17 November 1992, C-235/91,
Commission/Ireland, ECR, p. I-5917, points 9-10; Judgment of the Court of 9 March 2000, Commission / Italy,
C-358/98, ECR, pI-1255, point 17
21 C-169/87, Commission v France, p. 4093, point 11
22 C-167/90: Commission v Belgium and case 284/92: Commission v Ireland
TRANSPOSITION – MAIN PRINCIPLES
39
Framework Directive and with EC Treaty, which provides that Community policy on
the environment is to aim at a high level of protection. The definition of waste essentially turns on the notion of ‘discard’. The court has stressed on several occasions
that whether a material is considered a waste or not depends on the specific factual circumstances and that therefore the decision must be taken by the competent
authority on a case by case basis. Finally, it is important to note that even where a
particular material satisfies the tests set out by the ECJ in order to be considered as
a non-waste, if it is discarded in practice, it must clearly be considered and treated as
a waste.
Whether or not a national waste management plan can be used to transpose certain
provisions of the ELV23 Directive could be examined in this context. Thus, the following have to be observed (paraphrasing the courts decisions): “…although countries
have considerable discretion in choosing the most appropriate national mechanism
to reflect the EU environmental obligations, this discretion is limited in some respects
by general principles of the EU law.” In most cases, it will be necessary to adopt
the national legislation passed by Parliament or, in some countries, by Presidential
or Governmental Decree. A government cannot use non-binding administrative
measures to achieve the aims of the directives. Non-legal methods of transposition
are in conflict with the binding legal nature of directives. This principle is especially
important for those countries that have traditionally relied upon administrative measures in carrying out the environmental policy.
For a candidate country like Serbia, as well as for MS, the guiding tread should be: If
a directive contains general principles of the issue covered, the national legal system
should preferably use a law, and not a regulation of the Government or a Minister. But
technical and specific provisions, presumably o—en amended, should be implemented
by legislation issued by a Minister. Nevertheless, according to the judgements of the
European Court of Justice, a law must be used to implement (meaning also transpose) a directive, which confers rights and obligations upon individuals.
Before accession to the EU the constitutional aspect of law harmonisation
should also be reconsidered. The constitutions of the candidate countries or
acceding countries have to reflect the relation between constitutional law and
EU law.
In the course of transposition, there are always challenges with the interpretation of
the EU Law. One could o—en face problems in understanding and interpreting provisions of an EU act. A question could arise, e.g. how far is necessary or allowed for
23 32000L0053, Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on endof life vehicles, Official Journal L 269, 21/10/2000 P. 0034 - 0043
3
40
STEPS TO TRANSPOSITION
obligations provided in EU legislation to extend in a specific case, a precise meaning
of a provision of EU law, are the complementary or alternative provisions in national
law transposing an EU provision allowed, what the provision aims to regulate, etc. All
these challenges shall be addressed appropriately throughout the process of transposition. When drawing up a detailed approximation strategy, candidate countries
should carefully consider the impact of these decisions on the interpretation of the
directives and the methods of approximation. Consulting experts in the field regulated
by a directive, legal staff of the Ministry and the RSL as well as jurisprudence, and the
case law of the ECJ related to the matter, is highly recommended and essential to a
successful and proper transposition. The Court of Justice has consistently held that
individual provisions should be interpreted to achieve the declared aims of the legislation as a whole, and those narrow literal interpretations should be disregarded if they
would be contrary to that aim.
Example: The Court has been asked to decide upon the phrase “as soon as possible”. It has specified that this expression “must be interpreted in the sense that it
sets out in principle a reasonable time period for the enforcement of a particular
obligation by the national authorities, such time period being independent from
that provided for the transposition of the said directive”24
24 C-292/99, Commission v France
4
TRANSPOSITION
Steps to follow
TRANSPOSITION ³ STEPS TO FOLLOW
Ministries are, in most cases, those having the task of the transposition understood
as a “practical” incorporation, dra—ing of transposing legislation/provisions. A civil
servant, a law dra—er, assigned with the task of the transposition of a particular directive, is the one carrying out this task from the start.
As a help, a law dra—er shall make and
use a check list before starting the normative dra—ing process, answering
some preliminary questions:
1) To what extent is the existing national legislation compatible with
the EU directive in the given field?
2) Is a full harmonisation possible or
should it be only partial?
3) When would A full harmonisation
be applicable, now or upon accession to the EU?
4) Which parts of the directive are not
to be transposed within national
law? (no need)
5) How detailed does the national
legislation incorporating the other necessary parts of the directive
has to be?
ANALYSE NATIONAL
LEGISLATION:
• Was the legal approximation
already conducted in that area
before? Is current legislation
of RS in line with EU legislation?
• Ifitisnotfullyinline,towhat
extent is the existing national
legislation compatible with
the EU directive in the given
field?
• Doesanynationalactalready
transpose this EU legal act or
its part?
• What kind of legal drafting
work to be performed (elaboration of new law, by-law, and
amendments to the existing
law).
6) Should any parts of the directive be
incorporated into national legislation word for word?
7) Are there any reasons why the wording of the provisions should deviate from
the directive’s wording and terminology?
4
44
STEPS TO TRANSPOSITION
8) How much reformulation is required to structure and present the substance of
the directive in a manner compatible with national legal traditions?
9) Is there anything unclear in the directive, which should be further explained in
national legislation or by other means?
Depending on the answers the task will be then to organise the dra—ing accordingly.
This stage of (practical) transposition would be better dealt with if divided into steps.
I
The first step is checking and listing the priorities for transposition assigned
to a ministry. The prioritising should have been completed through the NPAA. The
first internal screening should have taken place earlier by a rough comparison
of the legislation against the EU acquis. Based on this, a compatibility checking
should take place in order to establish main facts:
a. Level of compliance – a tool is TOC (Tables of Concordance)
b. Based on the level of compliance to decide what to do next.
One of the main tools used for the above compatibility check is, in the most candidate countries, so called tables of concordance (TOC), comparative tables or
harmonograms. A format of the Table of Concordance can be changed and adapted to meet the particular purpose for which it is prepared. The Government of
RS has adopted an official version of the TOC to be used by the Administration.25
The Tables of Concordance enable comparison of the relevant provisions in national legislation with the relevant obligations in the directive. This way, a provision-by-provision comparison between EU requirements as set in the directive,
and national law are made. This should be highly prioritised in the beginning,
but also through out of the process of approximation. It is necessary to assess
adequately the gaps between national legislation and the EU requirements. This
exercise assists officials to determine which provisions of national legislation
need to be changed and how such changes should be made in the most efficient
manner. It shall be borne in mind that the comparison with a directive’s provisions is a comprehensive. In many cases the comparison has to be made against
the entire national legislation, not only against a single legal act. Therefore, the
principle that the transposition of directive has to be seen in light of the entirety
of the national legation and not a single legal act or a provision, is fully reflected
in this exercise.
Tables of Concordance are essential part of the transposition process. It is recommended for them to be used as a basis for developing realistic legislative
25 The format could be found in English and Serbian and downloaded from SEIO’s official web site: http://www.seio.
gov.rs/dokumenta/nacionalna-dokumenta.210.html
TRANSPOSITION – STEPS TO FOLLOW
45
programmes, and for the dra—ing of the legislation that needs to be adopted. Interpretation of the EU legislation requires a detailed analysis and comparison with the
available national legislation, which could lead to one of the following conclusions:
1. national legislation already covers the field of intervention and is compatible with EU law;
2. national legislation regulates the area concerned, but it is not compatible
with EU law
3. national legislation does not regulate the area concerned
It is quite clear, if the answer to the first question is yes, it means that the amendments to the existing or new national legislation are not necessary. The legislation is adequate and harmonises with that of the EU. These cases are possible
but very rare. If the legislation is dealing with the area covered by the directive,
then the next step is to establish how much discrepancies exist and to eliminate
them by harmonising. For this, the TOC has to be used. Putting the provisions of
the directive alongside the provisions of national laws in the table gives a better
overview and the understanding of the directive and on what will be the next step:
amendments to the existing laws or the dra—ing of the new laws or the mixture
of both approaches. The third is another clear situation – the area is not regulated
nationally at all and the relevant legislative dra—s need to be developed in order to
harmonise it with the directive.
II Find the most recent translation of the EU law – The preparation of the Serbian
version of the EU acquis is coordinated by the Serbian European Integration Office.
For the translation of a specific legal act you require, please contact either the coordinator for expert revision within your authority or SEIO. All necessary legal acts
are to be nominated for translation within the system coordinated by SEIO so that
the acts could be translated and revised by experts prior the beginning of legislative activities. If the aforementioned has not been done, the original text in English,
French, Croatian and/or German, as well as those in other languages, should be
consulted.
It is also advisable that Ministries introduce internal procedures when translating
the dra— proposals of the national laws and regulations (Serbian to English but
also vice versa).
Check whether there is an ongoing or upcoming project assistance in the Ministry under the umbrella of the legal dra’ing/transposition task or other tasks
related to it.
4
46
STEPS TO TRANSPOSITION
Figure 2. Process of analysis of the national legislation conformity – the steps
The process of interpretation and comparison of
legislation
I.
National
legislation not
compatible
with EU law
II.
National
legislation does
not regulate
the area
concerned
I. National legislation not compatible with EU law
The process of
amending national
legislation
II. National legislation does
not regulate the area
concerned
or
The process of draing new legislation
FOR EXAMPLE: Comparing provisions of Regulation (EC) No 178/2002* (General Food Law) only with the national law (Food Safety Law, OG no. 41/2009)
will not give a realistic picture of the compliance, since some of the provisions
could have been regulated under other laws, even under the laws that are not
necessarily under the implementing responsibility of the Ministry in charge of
transposition of this Regulation. The definition of “control plan”, as prescribed
in the Regulation could be perhaps found in the Law on Inspection Oversight
(Official Gazette of the RS, no. 36/2015) or Law regulating Veterinary matter
(Veterinary Law, OG RS no. 91/2005-3, 30/2010-120, 93/2012-29) or in both
or in dra— laws.
Also, the Regulation’s provision in Art. 4.2 (b) establishing that “the competent
authorities shall ensure that the staff carrying out official controls are free from
any conflict of interest”, could be regulated under the Law on prevention of
conflict of interest in discharge of public office (OG RS no. 43/2004).
*32004R0178, Regulation (EC) No 178/2002 of the European Parliament
and of the Council laying down the general principles and requirements of
food law, establishing the European Food Safety Authority and laying down
procedures in matters of food safety, OJ L 28, 31.1.2004, p. 11–12)
TRANSPOSITION – STEPS TO FOLLOW
47
III Dražing a national legal act in order to transpose EU law requirements often requires the teamwork of lawyers, translators and “technical” experts in the
specific sector. To dra— a law harmonised with the EU acquis, one needs to be
familiar with Serbia’s legal system which must be respected, but also (preferably) with the EU law alike. Therefore, one needs to establish a working group as
a first step (see also Annex D, no. 12 and 13), as soon as possible. If not possible – find someone available from the department in the Ministry assigned with
the task and/or from the stakeholder groups, relevant for the subject matter, to
work with. The identification of the major partners and stakeholders is a very
important preparatory step towards a successful transposition of the EU provisions. During the dra—ing, the decision on which parts of a directive have to be
transposed, needs to be made (analysis of binding, non-binding and non-transposable provisions of directive (for inspiration, see also Table 3). Also, the directive amendments have to be checked for. If there are amendments, the decision
on the transposition of all the amendments, some or none is also needed. In any
case, if the directive has been amended, it shall be properly indicated in the Table
of Concordance (TOC). If you use the official publication of the consolidated directive, it shall be properly indicated in the TOC. In a case of consolidated version of
the directive which is not published in the Official Journal of the European Union
(OJ), but a digital version of the consolidated directive on the EU legislation website, you should refer only to the directive and the amending directives published
in the OJ.
Also, ensure to formulate provisions of the dra— national act in a clear and precise
manner following the requirements of the RS legal dra—ing techniques. For this
purpose, the Uniform Methodology for dra—ing the legislation in RS are developed
and published, as mentioned before. In the context of dra—ing, it is advisable to
familiarising with the record of adoption of the particular EU legal act which is to
be transposed. EU Commission’s proposals of the act, the opinions of the European Parliament and Council during EU legislative procedures and, if available,
Green or White papers dra—ed as preparatory documents before legislation has
been adopted, are all of special importance here. Also check whether the directive
requires changes to the structure of the existing governmental institutions or the
establishment of the new ones (implementation considerations – see also Annex
C), ensure to refer to the transposed EU legal act(s) in accordance with the RS
legislation.26
Avoid “double-banking” (overlapping between existing national laws and the
transposed directive) or “gold-plating” (exceeding the requirements of the directive). Check if the similar provisions already exist and do not repeat the same requirements several times in different regulations, thus contributing to the legal
26 See the above mentioned Uniform Methodological Rules for the Dra—ing of Regulations
4
48
STEPS TO TRANSPOSITION
uncertainty. When using “gold plating”, very o—en it means unnecessarily overburdening industries/economic operators. However, reasons of public health, national security or similar considerations could justify it.
It is strongly recommended, as far as possible, to simultaneously transpose
provisions of EU legislation which make a “natural” cluster in the sector, e.g.
Regulation (EC) 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, together with Regulation (EC)
882/2004 on official controls and other EU related regulations, so called – “hygiene package.”
Check the compliance of the dra— legal act with the Constitution(s) of the RS and
other related national legislation, the international agreements, with EU Treaty,
other secondary EU legislation, general principles of EU law, and case law of the
Court of Justice – as relevant. This is the responsibility of the Republican Secretariat for Legislation, except for the EU related legal issues. The ministries themselves and their staff do not possess sufficient resources or capacities to go deeper into the acquis, to interpret and understand it in depth, so their work frequently
comes to the mechanical transposition of the EU law provisions into the national
legislation. Therefore, it would be extremely useful if the RSL was to play a more
active role in this respect.
TRANSPOSITION – STEPS TO FOLLOW
49
AMENDMENTS TO THE RULES FOR A UNIFORM
METHODOLOGY FOR DRAFTING LEGISLATION
IN SERBIA
The Rules for Uniform Methodology for Dražing Secondary Legislation,
were adopted by the Government in 2010 (OG RS no. 75/2010) and are undergoing amendments, (information as of November 2015). The proposed changes
relate to standardization and nomotechnics in connection to transposition
of the EU acquis as follows:
1. It will be regulated that the reference shall be made to the fact that the
content of a legal act of the European Union or a part of that legal act of
the European Union is transposed into the national legislation, by making reference to the EU legal act, or its part in a separate, special provisions of the national law transposing it. The provisions will be placed
just before the final part of the law, i.e., before the “Transitional and final
provisions”.
2. It will be regulated that the date of entry into force of the national law or the
part of that law or its specific provision(s) shall be separated/distinguished
from the date of application, e.g. it will apply a—er or until the date of accession of the Republic of Serbia to the EU. It shall be also allowed to enter a
provision regulating for the law or its specific part to not apply from the date
of Serbia’s accession to the EU.
3. It will be regulated how to bridge a potential cross-reference problems within EU acts while transposing them (e.g. the national law, transposing EU
legal act A, to reference to another national law transposing EU legal act B,
whilst the both EU legal acts in question reference one another (Cross-referencing)). Before the accession, EU law is considered a foreign law for the
Republic of Serbia and thus, the national law cannot reference directly to the
EU law. In such cases, the reference shall be made to other national laws
(or to a specific provisions of the law in question) transposing the content of
the EU legal act B. If the national law is not yet adopted, but referred to, the
reference shall be made to the future national law to transpose the content
of the EU legal act B. In that case, the application of that law (or its specific
provisions) shall be postponed to the date the law to which the reference is
made enter into force.
The final solutions should be checked once the Rules are published.
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STEPS TO TRANSPOSITION
IV Differences in transposing Directives and Regulations
EU directives have to be transposed in domestic legal order; i.e., Member States
transpose directives by passing appropriate implementation measures, either by
primary or secondary legislation. Regulations, as an instrument of unification,
are directly applicable to all Member States, and therefore directly applicable and
enforceable as law in all Member States simultaneously. For directives, there is
a certain timeframe for transposition provided, normally up to 24 months to be
transposed into the national legal order. As earlier explained, the national legislation does not have to repeat the EU directive word for word or completely follow its
legal and nomotechnical structure, but it must follow the principles set by the ECJ,
e.g. give the individuals concerned a clear and accurate indication of their rights
and obligations and make provisions so that these rights are upheld.
Some directives are more general, settling only minimum requirements while
others are more detailed, going into maximum harmonisation without leaving
much space for national interpretation. Directives related to consumer protection
in many cases fall under minimal harmonisation, allowing EU MS to settle certain
issues through their national legislation by giving consumers additional protection and choosing to interpret and transpose the provisions in consumers’ favour.
Some other directives in this field contain provisions that need to be strictly harmonised: in the latter case, the Member States do not have any possibility of diversion (for example in cases and matters of security, product liability and advertisements). Directives accordingly set out a series of “obligations to achieve a result in
a clear and unequivocal manner”. In such a case, to take all reasonably practicable measures in order to obtain the result imposed by the directive cannot be considered as sufficient for an effective enforcement of the directive to be ensured.27
With regard to EU regulations, which are directly applicable in EU MS (not yet to
Serbia), it is advisable to approach them in the same manner as directives, but it
is recommended not to change the main text of a regulation as far as reasonably
possible.
Since the regulations do not always prescribe all the rules, supplementary national measures are o—en needed. The authorities must provide for measures for
the implementation of a regulation or impose penalties for non-compliance in the
national legislation or, define a national body for implementation, and so on. A—er
the accession, domestic legislation, which transposed regulations or some provisions of regulation, should be repealed, although the implementing and penalty
provisions will have to stay in force.
27 C–60/01, Commission v France, Failure of a Member State to fulfil its obligations – Directives 89/369/EEC and
89/429/EEC – Air pollution – Municipal waste incineration plants – Incinerators in France
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TRANSPOSITION – STEPS TO FOLLOW
Table 1 – Types of EU legal acts
Aspect
Directive
Regulation
Decision
Entry into
Force
Upon the date
specified in the
directive or on
the 20th day a—er
publication in the
Official Journal
Upon the date
specified in the
Regulation or on
the 20th day a—er
publication in the
Official Journal
Upon notification
to the persons
to whom it is
addressed.
Approximation
Deadline
Stated in the
directive: The
same as the date
of transposition
unless other
date(s) is(are)
indicated in the
directive. May be
1 month to 3 or
more years a—er
entry into force.
Some directives
can have direct
effect if the
Member State fails
to transpose into
national legislation.
Not applicable.
Direct application
and effect. Enters
into force upon
notification to
the party to
whom they are
addressed.
Not applicable,
direct application
and effect.
The most
frequently used
instruments of
EU law, especially
environmental law
Are used when
a unified policy
system is needed:
Funds, institutions;
EU voluntary
schemes such
as eco-label,
EMAS; controls on
products or trade
– ozone-depleting
substances,
chemicals control
(REACH), Food
Safety, etc.
Used to specify
detailed
administrative
requirements
or update
technical aspects
of regulations
or directives
– reporting,
ratification of
international
agreements and
protocols
Usage and
Frequency
Binding on the
parties to whom
it is addressed on
the date it comes
into force
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STEPS TO TRANSPOSITION
Aspect
Legal
Obligations of
the Member
States
Directive
Adopt laws,
regulations and
procedures to
give effect to the
directive by the
transposition
deadline
Regulation
Establish
institutions and
procedures; they
should repeal any
conflicting national
provisions
Decision
Binding on
the parties to
whom they are
addressed; these
may or may
not include the
Member States.
V Examine the Directive’s provisions thoroughly – A—er the priority directive for
transposition has been assigned, the first step is always to understand the directive, as well as possible, before beginning to design a plan for harmonisation. It is
always a good start to begin by reading the preamble of the legal instrument. This
is a formal part of the legal act that sets out the legal basis, lists the documents
prepared by the European institutions during the legal procedure, and summarises the main objectives and elements of each article. The preamble acts as a kind
of executive summary of the legal act and gives the reader a good overview. The
first sentences of the preamble are crucial to understanding the legal act, as explained in the Table 2 below.
Table 2 – Understanding the preamble
Preamble text
Place
Purpose
Having regard to the
Treaty establishing the
European Community, and
in particular Article 175(1)
thereof,
Sentence 1.
This is the legal basis, which
depends on the purpose of the
directive. The legal basis establishes
some of the criteria for review of
Member State legislation by the
courts.
Having regard to the
proposal from the
Commission (1),
Sentence 2.
Only the European Commission is
empowered to propose legislation;
each proposal is accompanied by a
lengthy explanatory memorandum.
Both are published in the Official
Journal “C” (communication) series.
Footnote (1) gives the reference.
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TRANSPOSITION – STEPS TO FOLLOW
Preamble text
Place
Purpose
Having regard to the
opinion of the European
Parliament (2),
Sentence 3.
The EP opinion provides information
about different priorities in society
and the Member States, and
o—en contains proposals that
either tighten or loosen certain
requirements.
Footnote (2) gives the reference in
the Official Journal C series.
Having regard to the
opinion of the Economic
and Social Committee (3),”
Sentence 4.
This committee represents
public and private interests in the
legislative process.
Footnote (3) gives the reference in
the Official Journal C series.
Having regard to the
opinion of the Committee
of Regions, (4),
Sentence 5.
This committee brings the
viewpoints of the regional levels
of government formally into the
legislative process.
Footnote (4) gives the reference in
the Official Journal C series.
Acting in accordance with
the procedure laid down
in Article 251 of the Treaty
( 5) in the light of the
joint text approved by the
Conciliation Committee on
8 November 2002,
Sentence 6.
This is the legal basis for the
procedure and notes the date
on which a final text was agreed
between the EU institutions.
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Preamble text
Place
Purpose
Whereas: (1) Increased
public access to
environmental information
and the dissemination of
such information contribute
to a greater awareness of
environmental matters,
a free exchange of
views, more effective
participation by the public
in environmental decisionmaking and, eventually, to
a better environment.
Sentence 7.
This sentence is the first “whereas”
of the series of remaining
paragraphs in the preamble. They
describe the justification for the legal
act and the purpose and regulatory
approach of each article.
This is the place to find a description
of the relationship between the legal
act and other EU legislation.
Also, read the explanatory memorandum submitted by the European Commission when it proposed the directive. The key to understanding o—en complex EU
legislation is to understand the need to define an adequate legal structure solving
an EU-wide problem and yet, take into account different needs and circumstances
of the EU MS. The Commission’s proposal and the explanatory memorandum are
usually referenced in the first footnote in the preamble. It is important, if possible,
to look at the problems and actions in the Member States that gave rise to the
need to legislate at the EU level, and to compare them with the situation in Serbia.
In addition to EU secondary legislation, the EU primary law and the judgments of
the ECJ should also be taken into account in order to get a more accurate interpretation of the provisions of the EU act in question.
This is an important task before choosing the instrument for adoption. It will
require a good knowledge of the EU and Serbian legal systems and legislation
in the specific sector. Involvement of lawyers and technical staff in the departments is crucial.
It is essential to examine provisions of the directive thoroughly. Not all provisions are
of the same relevance and nature. Some are strict and need to be transposed in a certain manner, some give alternatives, some are discretionary, and for some there is no
need for transposition. Understanding the nature of the requirement is very important.
The Table 3 below gives an example – overview over various directives’ provisions
interpretation for transposition; which provisions to transpose (minimum harmonisation, alternatives, derogations, etc.) and in which manner to transpose them.
Obligatory
Obligatory, a ban
No veterinary medicinal product
may be placed on the market of a
Member State unless a marketing
authorisation has been issued by
the competent authorities of that
Member State in accordance with this
Directive or a marketing authorization
has been granted in accordance with
Regulation (EEC) No 2309/93.
Member States shall adopt all
measures necessary to ensure
that….
Nature
Provision/obligation
Comments
The limitation of a type of measures only exists as to the scope
and meaning of the directive. The entire directive has to be read
before the decision what kind of the measures are to be taken.
Please note that wording of the transposing provision like:
“Serbia adopts the measures…” are not appropriate or adequate.
“The ministry will adopt the measures…” could be accepted only if
this is a part of the approximation plan, it serves as a legal basis
in a law for adoption of subsequent legislation containing the
measures.
The usual language in directives – precise as to objective and
general as to the means. The MS are to decide what measures
are adequate as to achieve the objective.
This is obligatory to transpose as close to the original wording
as possible – the similar wording, The veterinary product is
free for circulation only if authorization has been granted. The
authorization procedure is also regulated and the Competent
Authority has to oblige to the requirements for authorisation
in the Directive or alternatively with authorization procedure in
accordance with the Regulation.
Table 3 – Provisions’ Interpretation Examples:
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55
4
Discretionary
Discretionary
with conditions
and obligatory
elements
Member States may provide for a
single procedure in order to fulfil the
requirements of this Directive …
Without prejudice to Article 7,
Member States may, in exceptional
cases, exempt a specific project in
whole or in part from the provisions
laid down in this Directive. In this
event, the Member States shall: (a)
consider whether another form of
assessment would be appropriate;
(b) make available to the public
concerned the information obtained
under other forms of assessment
referred to in point (a), the
information relating to the exemption
decision and the reasons for granting
it; (c) inform the Commission, prior
to granting consent, of the reasons
justifying the exemption granted, and
provide it with the information made
available, where applicable, to their
own nationals.
Serbia has discretionary right to exempt and if chooses to,
the other conditions MUST be met. At this point, no reporting
obligations exist on Serbia. It shall be either le— out or a provision
shall be made with the postponed applicability – upon accession,
if the domestic rules shall allow it.
This sentence gives the Member States the power to exempt
certain projects from the EIA procedure. If it decides to exempt a
project, it must comply with certain obligations – the exemption
must be specific, exceptional, and the Member State must
comply with certain conditions and take actions to inform the
public and the Commission.
This sentence clarifies that Member States are not required
to adopt separate procedures. (e.g. under IE28 replacing IPPC
Directive)
Comments
28 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control)
Nature
Provision/obligation
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Nature
Minimum
Obligation
Obligatory
Clarification
Provision/obligation
The information to be provided by
the developer in accordance with
paragraph 1 shall include at least:
…
The following particulars and
documents shall accompany an
application in accordance with
Annex I:
The provisions of this Directive shall
not affect the obligation on the
competent authorities (CA) to respect
the limitations imposed by national
regulations and administrative
provisions and accepted legal
practices with regard to commercial
and industrial confidentiality, including
intellectual property, and the
safeguarding of the public interest.
This part is not transposed. Nevertheless, if needed, the
clarification underlining the national CAs obligations under other
these regulations/laws could be added. One should make sure to
avoid double regulating.
The EU is explaining that the directive does not intend to modify
national laws or practices regarding certain non-sectoral issues.
– the instrument of transposition shall be chosen depending
on the obligations put on the subjects. If the application
is regulated under the law then two possibilities emerge:
either the law regulates also the particulars or the law gives
empowerment to the ministry to develop legislation by which it
has to be transpose it
– all the conditions/particulars listed in the annex have to be met
and transposed into domestic legislation
The choice of transposition is limited:
The minimum content of the information is listed. The Member
States may require more detailed information.
Comments
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4
Obligatory
Obligatory
This Regulation shall apply to all
stages of production, processing and
distribution of food and feed. It shall
not apply to primary production
for private domestic use or to the
domestic preparation, handling or
storage of food for private domestic
consumption.
“greenhouse gases” means the
gases listed in Annex II;
‘Food’ includes drink, chewing
gum and any substance, including
water, intentionally incorporated
into the food during its manufacture,
preparation or treatment. It includes
water a—er the point of compliance
as defined in Article 6 of Directive
98/83/EC and without prejudice
to the requirements of Directives
80/778/EEC and 98/83/EC
Nature
Provision/obligation
If some terms are not existing in the national legal order, the
introduction of the new is advised (as defined in a particular
directive).
No discretion to the MS is le— for transposing the definitions.
The same goes to the candidate countries. This is in order to
make certain that the definition of e.g. “waste” is understood
and transposed in the same manner throughout MS – a uniform
application of definitions which ensures legal certainty as well as
the purpose of the directive.
Definitions are obligatory part to be transposed– literally/
verbatim/copy-out.
Exemption from the scope means that the Member States
decide for themselves how to regulate this part or to leave them
uncontrolled.
It does not oblige the Member States to adopt a law with exactly
the same scope since the regulations are directly applicable.
Candidate countries must find a way to transpose regulations in a
legally acceptable manner.
This paragraph describes the scope of the Regulation (General
Food Law) the type of operations covered as well as the type of
food and feed operators in the food chain which are obliged to
fulfil requirements.
Comments
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Obligatory
Obligatory
Obligatory
The competent authority shall issue
a greenhouse gas emissions permit
granting authorisation to emit
greenhouse gases from all or part
of an installation if it is satisfied
that the operator is capable of
monitoring and reporting emissions.
Member States shall take all
necessary steps to ensure that as
from 1 January 2003 within their
territory heavy fuel oils are not used
if their sulphur content exceeds 1,00
% by mass.
The following rules shall be
observed when using sludge: — the
sludge shall be used in such a way
that account is taken of the nutrient
needs of the plants and that the
quality of the soil and of the surface
and ground water is not impaired
Discretionary
+
Nature
Provision/obligation
The “way” is to be prescribed by the rules/legislation.
This is a very general obligation that allows the Member States
to decide their own rules, as long as the rules (1) take account of
the nutrient needs of the plants and (2) do not impair the quality
of soil, surface and groundwater. The second requirement is
clearly stronger than the first, but both have to be met.
As for Serbia, the deadlines shall be established according to the
policy/strategy developed in consultation with the EC.
A straightforward technical standard.
This paragraph establishes the condition for issuing a permit. If
this condition is met, the competent authority is obliged to issue
the permit. No discretion, in this case, is allowed besides the
conditional satisfactory checks of the operators’ capability.
Comments
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4
29 Ludwig Krämer, EC Environmental Law, Fourth edition, 2000, p. 280, section 11-08, lists the measures that should be taken to prepare for reporting obligations a—er accession
Nonetheless, since the administrative and data management
systems that will be needed for reporting have to be in place
before accession, these provisions are to be implemented(and
usually regulated) and included in the tables of concordance (also
in implementation questionnaire)
Not legal
obligations
until the date of
accession
Reporting requirements provisions29
Provision that does not establish a legal obligation, but are important
in order to know what is outside the scope of the Directive. This could
be transposed, but not necessarily. This clearly depends on the legal
system. For Serbia – the RSL could give an opinion this. Listing the
exemptions although useful, their transposition should not impair
the domestic legislation in other fields.
Provisions that for geographical reasons cannot be complied
with, like for Serbia.
Important
information
List of exemptions from Directive’s
requirements
Provisions that allow options for transposing or/and
implementing the directive. In such cases, a country may decide
to transpose (and implement) either one or the other option.
Not to transpose
Obligatory –
one of the
alternatives
Directive 1999/22/EC relating to
the keeping of wild animals in zoos,
where a country may choose to
license zoos pursuant to Article 4
or, alternatively, it may establish a
system of regulation and registration
pursuant to Article 5.
Comments
A Directive on marine pollution
would not apply to a landlocked
country
Nature
Provision/obligation
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Nature
Alternatives/
options to be
regulated
Usually contain
precise and
legally binding
obligations
Provision/obligation
Directive 2012/19/EU on waste
electrical and electronic equipment
(WEEE).
Annexes to Directives, including the
technical annexes
These obligations o—en need to be transposed verbatim (word for
word)
either to introduce full producer liability (EPR) or a shared liability
involving public funding
The directives that give the competent authorities
implementation options. The Member States must decide on
implementing options:
Comments
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Transposition example (environmental directives): when the directive
contains precise: requirements, governments must transpose the requirement
precisely. Some examples of precise requirements are:
• all definitions used in the directive
• emission limit values
• environmental quality standards
• mandatory environmental impact assesment requirements
• chemical testing requirements
• reporting to the European Commission (only MS)
• technical standards defined in annexes and decisions.
VI Priorities and Timing – Discuss ways of prioritising the implementation tasks
based on legal, institutional, and economic and financial aspects. Assess which
tasks are most likely to affect the implementation programme, due, for example, to the need for planning, institutional strengthening, and the design and construction of new facilities. For complicated and involved legal instruments, where
the process of implementation is likely to be complex and involve many actors,
a timetable for action by the State has to be set out (see, for example, under the
Water Framework Directive [2000/60/EC], Section 5)30. See also section on implementation consideration – Annex C.
VII Choose the instrument of transposition. Although the accession countries have
considerable discretion in choosing the most appropriate national mechanism to
incorporate EU directive’s obligations, this discretion is limited in some respects by
general principles of the Union law (see also above Chapter 3 on principles). In most
cases it will be necessary to adopt national legislation passed by the Parliament or/
and by Governmental Regulations. National administrative instructions, circulars,
and some types of ministerial order or decree which correspond to EU legislation
but which are not binding, pose a particular problem. They are not normally considered sufficient for transposition, and must be converted into more formal legal
measures. The above Chapter 3 ‘Principles of Transposition’ gives further guidance
The Court has specified conditions which must be observed by the Member States:
• the measures of application must be legally binding
• the measures of application must be adequate in regard to the purpose of each directive.
• necessity of carrying out the transposition of the directives in internal law under
conditions and in the conformity with demands of legal security and certitude.
30 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework
for Community action in the field of water policy - OJ L 327, 22.12.2000, p. 1–73
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In Belgium, Denmark and Sweden, EU directives in the social field may also be
transposed by collective agreements between social partners. In many Member States the national parliament makes use of a delegation of its transposition competence to the government: Denmark, Germany, Estonia, Spain,
France, Italy, Ireland, Poland, Portugal, Romania and the United Kingdom. In
Spain, a delegation of the transposition process to the government is very rare
– although technically possible, and transposition is usually done by the
parliament.
Therefore, “simple administrative practices,
which are by their nature modifiable according to the authority’s wishes and deprived of
adequate publicity may not be considered
as constituting a valid enforcement of the
obligation which is incumbent on Member
States to which a directive is addressed”
pursuant to Article 288 TFEU (previously
Art 249 TEU).
The Court later confirmed that Member
States should provide for a precise legal
framework within the domain in question in
order to guarantee the full application of the
directives in law and not only in fact (European Court of Justice 28th February 1991 –
Commission v Italy case C 360/87).
CHOOSING
THE LEGAL
INSTRUMENT
For example, one Member
State had incorporated the
directive 80/778/EEC on
the quality of drinking water into its law by means of
an administrative circular.
The Court of Justice said
that the MS must adopt
legislation which transposed the directive’s maximum admissible concentration limits for pollutants
into national law.
It is not considered sufficient for a law to be applied de facto but it is also
required for a proper legal
basis to be established in
the legislation.
Directives setting up new legislative
measures, or revising them, should be
transposed by equivalent legislatives measure the original directive has been transposed with at the national level. Legislative
measures for transposing EC law in the national legal order are mainly subject to two
major decision-making processes: either
transposition laws are based on a standard
legislative procedure which is usually based
on a government’s proposal adopted by the
parliament, or the transposition process
may also be delegated to the national government.
For example, in Serbia, for the Rulebooks to be adopted and to be an adequate tool
for transposition, a clear legal basis needs to be established in a law. Otherwise,
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transposing directives by means of a Rulebook only, might not be sufficient. In
some cases, it would not be enough from a constitutional point of view. Therefore,
the provisions of the directive need to be carefully examined. ECJ judgments are
very explicit regarding the fact that legal instruments need to be legally binding
when transposing EU directives. So, for the above stated reasons, EC directives
either need to be transposed directly by a law or via a Rulebook/Regulation with a
clear legal basis in the law.
For example: It is recommended to create a clear and concise legal basis in the
Law on Waters. It should contain an explicit enabling provision stating that the
Ministry of Health is competent and responsible for the main objectives as
defined in the Bathing Water Directive31 and enable it to define and adopt relevant rulebook(s).
VIII Identify the key stakeholders affected by
the legislation and their role in implementation, and discuss the role of competent
authorities and government at the national,
regional and local level, discuss solutions
based on an assessment – public versus
private involvement, communications and
consultations. Please consult with the site32
of the Ministry of Public Administration and
local self-government. The newest development in Serbia within this part of the law
making process is very encouraging. The
Government adopted in 2014 “Guidelines for
the inclusion of civil society in the legislative
process” by its Conclusion 05 No. 011-8872
/ 2014, see also Item 13, Annex D. The main
purpose of it is to guide the Serbian administration in how to include civil society into
legislative process: from dra—ing, adoption
to monitoring of enforcement of the legislation. The modalities for a participation of
civil society in this process are identified to
be through information, consultation, and
a direct inclusion into dra—ing and through
COMPATIBILITY
ASSESSMENT
Compatibility check of national legislation with that
of the EU must, first of all,
apply criteria whether the
objective set by EU legislation can be achieved by
introducing the selected
legislation.
It is (above all) the ultimate responsibility of,
and decision for, the national government to take
binding measures that
are fully incorporating the
letter and the spirit of EU
law.
31 32006L0007 - Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 on the
management of bathing water quality and repealing Directive 76/160/EEC
32 http://javnerasprave.euprava.gov.rs/
TRANSPOSITION – STEPS TO FOLLOW
65
partnership. An active participation of civil society in all stages of the legislative
process is needed also in order to increase mutual trust between public authorities and civil society, openness and accountability. This Guide will without a doubt,
in a conjunction with others, by the Government’ simultaneously launched initiatives, contribute to overall improvement of the consultative process enhancing
they participation in the decision making process and the application of the principle of participation in state administration.
Also, ensure simultaneous development of laws and its deriving bylaws in order to contribute to the quality of public participation in the legislative process.
Also, consultation with other stakeholders, in particularly the industries (operators) and others onto whom directives’ provisions are having biggest effect and
impact, should be timely informed about the plan for the regulations, enabling
them to participate in the consultation process, and to give the feedback on the
results of the regulation application on the later stage. This will increase efficiency
and cost-effectiveness of not only the legislative process but also the implementation measures proposed by the legislation.
IX Address technical issues in the legislation. These issues may require expertise and specialised knowledge, for example to set guideline emission standards,
monitor emissions and prepare technical guidance notes. Collaboration with experts in the specific technical field is recommended while dra—ing a legal act. In addition, as mentioned above, inclusion of consultation procedure and participation
of the relevant stakeholders in the working group for dra—ing should be initiated.
X Economic and Financial Issues. Discuss the types of costs arising from the implementation of the legislation, those who would bear them, and economic and
financial tools for recovering costs. Estimate the cost of implementing legislation
provided these are available from other studies. The Office for Regulatory Reform
and Regulatory Impact Assessment, established in November 2010, in charge,
(their role has been overtaken in 2014 by the Republican Secretariat for Public
Policy33) should assist among the other tasks, in developing impact assessment
of the legislation and of the measures proposed. The manual has been developed
for this purpose and could be found on the Secretariat’ website.34
Regulatory Impact Assessment (RIA) is a method for analysis of the possible effects of new regulations or amendments to the existing laws. This method involves a process that is based on a series of steps to answer the question whether
33 http://www.rsjp.gov.rs/eng
34 http://www.gs.gov.rs/doc/Analiza%20efekata%20propisa-prirucnik.pdf
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STEPS TO TRANSPOSITION
the new regulations or amendments to existing legislation would have the desired
effect. During this process potential key and side-effects that accompany the proposed changes shall be identified. This gives a meaning only in the case where it
is possible to quantify the likely costs of implementation and compliance with the
proposed regulations that would be borne by individuals and/or businesses, as
well as the costs of implementing new or amended regulations by the state authorities. In addition to the systematic and consistent consideration of the potential
effects, the RIA also implies informing the decision-makers and the relevant
stakeholders on the results of the analysis. RIA allows the passage of
legislation in which the benefits outweigh the costs, and for those alternatives at
which costs are minimal to be applied.
In Serbia, RIA that is related to the new
transposed legislation stemming from the
EU accession obligation has another importance. It could be used mainly as a tool
for planning and policy setting in the field.
Secondly, the level of harmonisation of
laws with EU law (fully compliant, partially compliant, non-compliant) also includes
alternatives that need to be addressed and
analysed, as well as the overall effects and
time horizons within which the full compliance will be achieved. Thirdly, very o—en RIA
could be, in this context of EU integration
process, perceived as useless because the
solutions are already set by the requirements of the EU acquis. However, this is not
entirely correct. In the EU, certain activities
are regulated mostly through directives,
which give MS a freedom in achieving the
goal of a directive. In this case, RIA makes
a lot of sense, giving the decision makers
different options for achieving the goal set
by the directive.
DIRECT EFFECT OF
THE EU LAW
According to the case law
of the European Court of
Justice, if the provisions
of a directive are unconditional and sufficiently precise, they may be relied on
before the national courts
by individuals against the
State where the latter has
failed to implement the
directive in domestic law
by the end of the period
prescribed or where it has
failed to implement the directive correctly.
In March 2015 also a compulsory financial impact assessments (FIA) for all legislation has been introduced in Serbia. The necessary resources will be allocated
for this purpose.
The Rulebook on Dra—ing and Submitting the financial impact assessments of
the law, other regulations or other act on the budget, respectively on the financial
TRANSPOSITION – STEPS TO FOLLOW
67
plans of organisations for compulsory social insurance (OG RS, no. 32/15)35 was
also adopted. The form for the standard methodology for the financial impact assessment of the act (FIA), is an obligatory accompanying document for each legal
act being prepared for the Government’ adoption.
Also, the Manual on the financial aspects of the NPAA was adopted on 30 October
2015 as an integral part of the Decision on the development of the second revision
of NPAA, and as the form which stipulates the cost estimations for transposing
the acquis per each negotiation group. This Manual will be used when calculating
the costs of the negotiation positions and action plans that are to be developed by
Serbia in the course of the accession negotiations.
XI Enforcement. Describe some of the key issues arising from control of the implementation of the legislation. This covers licensing and permitting procedures,
monitoring, inspection, enforcement, data collection and reporting. The role of enforcement in ensuring compliance in practice with the legislation should not be
underestimated, and should be highlighted where relevant. The adequate sanctions (as relevant) shall be defined and prescribed. Directives generally leave the
form of sanction to the discretion of Member States. Serbia needs to adopt such
penalty provisions, which are effective, proportionate and dissuasive. The form of
national sanction chosen must be effective to ensure that the aims of the directive are achieved. ECJ has held that there “must be no discrimination between the
sanctions adopted for measures implementing directives and sanctions laid down
under related national legislation”. For example, an offence under national law
should not have less severe sanctions compared to an offence under a national
law that transposes a comparable requirement under EU directive.
Example: an environmental offence under national law should not have unduly
severe sanctions compared to an offence under a national law which transposes a
comparable requirement under an EU directive. For example, a penalty for violation
of emission limits on discharges to water should be comparable, whether or not
those discharge limits are covered by an EU directive36.
XII Tables of Concordance. Tables of Concordance have been elaborated in the previous chapter, but it is also necessary to emphasise their importance as a document elaborated by a legal dra—er, which is required, under Serbian legislative
procedure, to provide information about the degree of compatibility of a dra— legal
act with the requirements of the EU law. It is highly recommended for a Table of
Concordance to be submitted not only to SEIO, but also to other interested line
35 http://www.mfin.gov.rs/pages/article.php?&id=11297&change_lang=ls
36 http://ec.europa.eu/environment/archives/guide/part1.htm
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STEPS TO TRANSPOSITION
ministries; such a table could be used to argument why certain solutions are used
in the dra— law or by-law. It is recommended to attach Tables of Concordance
when sending a dra— legal act to the SEIO. Do note that only a final version of the
dra— law shall be submitted to the SEIO. It is also recommended that the opinions
of other ministries are attached.
Submit all the working materials you possess that may support your view of solutions proposed in the dra— legal act being compliant with EU requirements to the
SEIO (studies, researches, opinions of experts and any other information).
When submitting the harmonised dra— to the Government, the dra— legal acts
should be accompanied by the Table of Concordance prepared by the legal dra—er,
as well as by a Statement of Compatibility. The RIA is obligatorily needed for dra—
laws, but the changes are underway to set an obligation to submit the RIA with the
secondary legislation as well.
XIII Transposition of annexes. Annexes are the official part of the EU legal acts and
this could sometimes represent a problem during transposition, concerning the
form of transposition as well as its content. In the majority of cases, in annexes we
find specific formulas, tables or comparative overviews, etc. Each annex should be
assessed from the point of its relevancy for the Republic of Serbia at the moment
of the transposition. Annexes could be relevant only or exclusively for MS.
In many cases, the content of an annex could be included in the main body text of
a national act as such. In other cases, the form of annex to the main body cannot
be avoided, especially when dealing with the “technical” legislation from different
sectors (Free movement of goods, Health, Agriculture, Environment, etc.). It is advisable that annexes, if necessary, are used only in the bylaws and to be avoided
during dra—ing laws adopted in the parliament as much as possible, following also
the RS nomotechnical rules.
XIV Transitional periods. During the legislation dra—ing and using regulatory impact
assessment, the option “doing nothing” or restraining from the new legislation in
regard to transposition of the EU acquis, normally is not an option due to
international obligations accepted by a candidate country. It is clear that some EU
acquis solutions are written exclusively for EU MS or are not appropriate solution
for the RS and/or its economic operators at the stage of pre-accession. The only
option then is either partial harmonisation or full harmonisation with the
transitional periods, meaning that certain parts of the national legal act would
enter into force later, but again within the reasonable time. Stating in the final and
provisional articles that certain articles are entering into force with the day of
accession of the RS to the EU might be the subject of the constitutional review due
to the complete uncertainty regarding accession date. Such provisions were used
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TRANSPOSITION – STEPS TO FOLLOW
by the other countries during the pre-accession period only when negotiations
were entering into final stage and when accession date was known37.
The best option, when entering into force
is not a part of an international obligation,
would be leaving the certain solutions
to be regulated at the later stage, when
appropriate timing is in line with the RS
interests – through amendments or future
new legislation for the same area.
The transitional provisions addressed here
are not to be confused with the transitional
periods that can be negotiated with the EU
during the negotiation process for certain
sectors/chapters.
FRAMEWORK
DIRECTIVE
Framework directives set
out general principles, procedures, and requirements
for legislation in different
areas. Within the framework, more focused directives in each area must
conform to the general
requirements of the framework directive.
XV Referring to EU act in domestic legislation.
As already explained in the previous Chapter
2.1 Common Transposition techniques, only
by referring to the EU legal act or to the certain parts of it is not a way to transpose certain solutions into domestic legal system.
EU law is for the RS, as non-MS, a foreign law which solutions can enter into the
Serbian legal system only with the ratification and publishing of the signed international agreements or with the transposition of an EU legal act into the national
legislation by dra—ing and/or amending national laws. If referring to EU acts would
be an option, then the transposition itself would be very simple – just referring to EU
legal acts published in the EU Official Journal in the languages of the EU Member
States. Such a solution, referring to the foreign law, adopted by foreign institutions
and published in the foreign OJ and in a foreign language, of course, would not be in
the line with the RS constitutional order due to the principles of legal certainty and
transparency, and also the lack of a publication in Serbian language.
On the other hand, EU MS shall refer in their domestic legislation the transposed
EU legal act within this act. Normally, a sentence like: “… within this act, the EU Directive 1234/56 is substantially transposed…” is used and placed in the introductory
provisions of the national legal act or at its end – within the transitional and final
provisions. In Denmark, for example, there is an official footnote listing Directives
transposed in a law. The footnote is always a note no. 1 set directly within the title
of the Law or the Regulation as showed here:
37 See also Chapter 4 - the changes in this respect due to be adopted under The Uniform Methodological Rules for
the Dra—ing of Regulations in the RS
4
STEPS TO TRANSPOSITION
70
Law on environmental protection 1)
then, at the end of the document: “Official notes”:
The Act contains provisions that implement parts of Council Directive 79/409 /
EEC of 2 April 1979 on the conservation of wild birds (EU Birds Directive) (Official
Journal 1979 No. L 103, page 1), as amended by Council Directive 2006/105 / EC of
20 November 2006 (Official Journal 2006 No. L 363, page 368), etc.
1)
It is recommended for the RS to start using this technique before joining the EU
– such a solution being obligatory a—er joining, does not harm the legal system
and contributes to overall transparency. See also Chapter 4 – the changes in
this respect are due to be adopted under the Uniform Methodological Rules for
the Dra—ing of Regulations in the RS.
XVI Internal coherence with the national legal system needs to be ensured during
the transposition process. It means that, while dra—ing legislation, a special attention shall be put on requirements of the domestic legal system and the applied
legal tradition. For example: although there are several different EU Directives to
be transposed, transposition might be done within one national legal act if they are
from the same area or vice versa. The existing RS legislation has to be always taken into account. In addition, the prepared legislation has to be checked, for all horizontal issues in the field of free movement of goods, with the relevant negotiating
group/team, before the legislative procedure is initiated before the Government.
The Ministry of Economy is in charge of all horizontal issues under free movement
of goods: technical requirements for products and conformity assessment, general product safety, standardization issues, accreditation and metrology system.
5
ANNEX A
Sources of EU Law
ANNEX A ³ SOURCES OF EU LAW
38
Primary sources of EU law
The primary law in the legal system of the EU has the highest rank, and all other legal
norms are based on it. It consists of the EU founding treaties and other main treaties,
including all Accession agreements of the new Member States, as well as the general
principles of the EU law developed by the ECJ, where the most important are:
•
•
•
•
Supremacy of the EU law,
Direct applicability of the EU law,
Direct effect for the EU law,
Liability of the EU Member States for the beaches of the EU law.
The Treaty of Lisbon is composed of two Treaties: the Treaty on European Union (TEU)
and the Treaty on the Functioning of the European Union (TFEU). It came into force on
the 1 December 2009. From that moment on, the pillar structure does not exist anymore. Co-decision (Council and EP deciding jointly) becomes the ordinary legislative
procedure. Depending on the year of adoption, the EU legal acts or other documents
may contain references to the “law of European Communities”, the “European Community law” or the “European Union law”. In order to avoid confusion while using this
terminology, it is vital to be precise. In order to simplify and for more clarity, in this Guide
we will use and refer only to the law of the European Union – EU Law and to EU acquis.
Secondary sources of EU law
The secondary sources of the EU law are the legal acts issued by the EU institutions
as well as conventions and international agreements between the EU and the third
countries or a third-party – organizations.
The EU legal provisions requiring legal harmonisation activities are contained in the
secondary EU legal acts. The choice of the EU secondary legal instrument, which would
be legally binding (regulation, directive or decision), to regulate specific issue, is determined
by reference to a provision of the Founding Treaties which constitutes its legal basis.
If there is no indication as to what kind of EU legal act should be adopted, or if a particular provision of the Treaty leaves the choice open, the competent EU institution
38 Link for SEIOs web page on the same subject: http://www.seio.gov.rs/upload/documents/nacionalna_
dokumenta/instrumenti_za_uskladjivanje_propisa/izvori_prava_eu.pdf
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STEPS TO TRANSPOSITION
chooses the most appropriate legal instrument in order to achieve the objective prescribed. The Treaty of Lisbon classifies secondary sources of the EU law in the following types: Regulations, Directives, Decisions, Recommendations and Opinions
– Article 288 TFEU provides that the EU institutions shall adopt regulations, directives,
decisions, recommendations and opinions, in order to exercise their competences.
International Agreements
In accordance with the Article 216 TFEU, the EU
may conclude agreements with one or more
third countries or international organisations
establishing an association involving reciprocal rights and obligations, common action and
special procedure. Such agreements, concluded by the EU, are binding upon the institutions
of the EU and on its Member States. The SAA,
concluded with Serbia might be an example.
EU “So— law”
The definition of the EU so— law is not provided in the Treaties but it is generally recognised
that so— law is composed by instruments with
no legal binding nature and where certain rules
of conduct which may have an indirect legal effects, are laid down.
There is no official classification of the “so—
law instruments” in the Treaties. Therefore
the classification proposed below is developed
based on the practice of EU institutions and the
case law of the Court of Justice:
CASE LAW
The case law is also a
source of the EU law.
The Court of Justice interprets EU law to make sure
it is applied in the same way
in all EU countries.
When searching for a certain EU legal act it is our advice to check also the Court
decisions connected with
the legal act in question.
The Court interpretations
will many times help us understand the legal act and
connect open issues and
possible problems not only
during the transposition,
but also in implementation.
• Preparatoryinstruments: Green Papers, White Papers, Action Programmes;
• Informativeinstruments: communications;
• Interpretative and decisional instruments: mostly communications, which
provide for the administrative rules in the issues of EU Law, interpretative
communications and notices of the Commission, decisional guidelines, codes
and frameworks);
• Formalandnon-formalsteeringinstruments: European Commission recommendations, Council recommendations, European Commission opinions,
ANNEX A – SOURCES OF EU LAW
75
Council conclusions, Council declarations and EU Member States’ declarations,
Joint Declarations and Inter-Institutional Agreements, Council resolutions,
Council and Commission Codes of conduct or practice and mixed conclusions,
declarations and resolutions.
Case law of the European Union Court of Justice
EXAMPLE ECJ CASE 221/83:
By application lodged at the Court Registry on 3 October 1983, the Commission of
the European Communities brought an action before the Court under Article 169 of
the EEC Treaty for a declaration that, by not adopting within the prescribed period
the measures needed to comply with Council Directive No 78/1026/EEC of 18
December 1978 and by not fully implementing Council Directive No 78/1027/EEC
of 18 December 1978, the Italian Republic has failed to fulfil its obligations under
the EEC Treaty. The two directives provide, in Articles 18 (1) and 3 (1) respectively,
that the Member States must adopt the measures necessary to comply with them
within two years of their notification, that is to say by 20 December 1980, and that
they must immediately inform the Commission thereof.
By letter of 30 September 1982 the Italian Republic forwarded the bill, stating
that it had been laid before parliament on 13 March 1982 a§er the Committee on
Constitutional Matters had signified its approval.
The Commission, considering that the Italian Republic had not adopted any
measure to comply with the aforementioned directives, brought this action for a
declaration that it had failed to fulfil its obligations. The Government of the Italian
Republic points out that it has laid down a bill before parliament containing
appropriate measures for the implementation of the directive. However, the
parliamentary procedure in relation to that bill could not be completed because
of the premature dissolution of the Chamber of Deputies. The procedure for
passing the bill must therefore be repeated since the subject-matter in question
must be regulated by a law.
The Court: The Court has consistently held that a Member State may not
plead provisions, practices or circumstances in its internal legal system
to justify a failure to comply with obligations and time limits laid down in
Community directives. It must therefore be declared that, by not adopting within
the prescribed period the provisions needed to comply with Council Directive No
78/1026 of 18 December 1978, the Italian Republic has failed to fulfil its obligations
under the EEC Treaty. By not fully implementing Council Directive No 78/1027 of
18 December 1978 and by failing to provide for compulsory instruction in the
subjects technology as part of its curriculum for veterinary surgeons, the Italian
Republic has failed to fulfil its obligations under the EEC Treaty.”
61983J0221Judgment of the Court of 18 September 1984. - Commission
of the European Communities v Italian Republic. - Failure to implement
directives - Veterinary surgeons. - Case 221/83.
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In accordance with Article 19 TEU, para 1, the European Court of Justice shall ensure
“that in the interpretation and application of the Treaties the law is observed”. As part
of that, The Court of Justice of the European Union shall:
• rule on the actions brought by a Member
State, an institution or a natural or legal
person;
• give preliminary rulings, on the request
of courts or tribunals of the Member
States, on the interpretation of Union
law or the validity of acts adopted by the
institutions;
• rule in other cases provided for in the
Treaties.
COMPLIANCE
Candidate Countries should
ensure that the necessary
administrative and institutional measures are in place
by the date of the accession
and that any overlapping or
conflicting national laws are
repealed.
The Court of Justice of the European
Union thus constitutes the judicial authority of the European Union and ensures, in
cooperation with the courts and tribunals
of the Member States, the uniform application and interpretation of European
Union law.
It shall be mentioned that in accordance with Article 267 TFEU, the Court of Justice
shall have jurisdiction to give preliminary rulings concerning:
• the interpretation of the Treaties;
• the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.
The general principles of the European Union law
The scope of the general principles of the EU law is established either by the case
law of the European Court of Justice of the European Union (ECJ) or by the Founding
Treaties. General principles are an important part of any legal order and their practical
function is to allow the resolution of disputes for which there is no specific written
legal rules.
While there is no exhaustive list of such principles in the case law of the ECJ or
in the Founding Treaties, the following principles are widely known and applied:
the supremacy of EU law, the protection of the fundamental rights of EU citizens,
the direct effect and direct applicability of EU law, legal certainty and protection of
ANNEX A – SOURCES OF EU LAW
77
legitimate expectations, which, for example, include the prohibition of retroactivity
of EU legal provisions, prohibition of discrimination, the principle of proportionality
and others.
Supremacy of EU law over national law
According to the case law of the ECJ, the supremacy of the EU law is a cornerstone
principle of the EU law. This principle is inherent to the specific nature of the European
Union (European Community).
The principle of supremacy means that the EU law takes precedence over any national law of any EU Member State with provisions that contradict it. At the time of
the first judgment regarding this principle (case 6/64, Flaminio Costa vs E.N.E.L.) there
was no mentioning of supremacy of EC law over the national legislation of a Member
State in the Founding Treaties. This judgment established the supremacy of the European Community law over the national law of the Member States.
Direct applicability of the EU law
The principle of direct applicability means that directly applicable provisions of EU
law must be fully and uniformly applied in all Member States from the date of their
entry into force. There is no need for their implementation by means of transposition into the national legislation of the EU Member States.
The following instruments of the EU law are directly applicable:
• FoundingTreaties (as follows from the judgment of the Court in joined Cases
9/65 and 58/65 San Michele SpA);
• Regulations (in accordance with the above-mentioned provisions of Article
288 (previously Art 249 TEC) TFEU, para 2);
• Decisions are directly applicable to their addressees and, in the event that they
do not dispose of addressees, on EU Member States (in accordance with the
aforementioned provisions of Article 288 (previously Art 249 TEC) TFEU, para
4); and
• Internationalagreementsconcluded between the European Union and third
countries, and between the European Union and international organisations,
that do not require the adoption of implementing legislative measures at the
European Union or national level.
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Liability of EU Member States
The concept of the liability of the EU Member States for the breaches of the EU law
has been established only by the case law of the European Court of Justice. In the
cases Franchovich (Case C-479/93) and Brasserie du Pêcheur (Joined cases C-46/93
and C-48/93), the Court developed the principle of the liability of a Member State to
individuals for the damage caused to them by a breach of the EU law by that State.
It follows from the judgements of the Court that the following conditions need to exist
for a Member State to be liable under the EU law:
• The result prescribed by the directive should entail the grant of rights to individuals;
• It should be possible to identify the content of those rights on the basis of the
provisions of the directive;
• The existence of a causal link between the breach of the state’s obligation and
the loss and damage suffered by the injured parties;
• The breach shall be sufficiently serious
Although the state liability criteria and the right to compensation are formulated by
the European Court of Justice as the issues of the EU law, it is le— to the national legislation of the EU Member States to regulate the issues of compensation to be paid to
the persons whose rights were infringed.
6
ANNEX B
Repetitions through
examples
ANNEX B ³ REPETITIONS THROUGH
EXAMPLES
How to transpose a directive?
As said before, the form and methods of harmonisation, as well as the choice of
national legislation appropriate for transposition, is the decision of the country.
The national implementing legislation does not have to repeat the EU directive
word for word or to completely follow its structure. Also, national legislation must
give the individuals concerned a clear and accurate indication of their rights and
obligations and allow the state to ensure compliance and defences arising from
these rights and obligations. Some directives are more general, others more detailed. A detailed examination of the text of a directive is essential when harmonising national legislation with the directive since it contains different provisions,
some obligatory for transposition, some not. Operational provisions setting out the
scope and purpose of the legislation and determining the implementation and the
goal to be achieved by implementation are obligatory for national incorporation.
These provisions must be examined to determine whether maximum or minimum
harmonisation is required. Transposition of a directive is illustrated below in these
practical examples of transposition of a directive as the most common instrument
of law harmonisation.
EXAMPLE:
Analysis of Directive 98/6/EC39 of the European Parliament and of the Council
of 16 February 1998 on consumer protection in the indication of the prices of
products offered to consumers.
A—er the Decision to transpose this directive into national legislation (in a bylaw and/
or partly in a law) was adopted and the analysis of its impact and the methods of its
credible enforcement (inspection surveillance, information, penalties, other issues)
were conducted, a dra—er should carefully analyse a directive, sentence by sentence,
and see which parts should be transposed. It is also recommended for the history of
the directive’ adoption to be checked.
39 OJ L 80, 18.3.1998, p. 27–31 ; 31998L0006
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82
An analysis of the Directive for the transposition purposes
Title
a) The title describes the type of legal act (directive), as well as the topic (price
indication of products offered to consumers),
b) The institution which has passed it (Parliament and Council),
c) The date of passing (16 February 1998),
d) The subject (on consumer protection in the indication of the prices), and
e) The number of the legal act (98/6/EC).
Preamble
In addition to information on decision making procedures and legal bases, the
preamble contains very useful information for understanding the motives and
objectives of the regulatory intervention.
Legal basis
Having regard to the Treaty establishing the European Community, and in
particular Article 129a(2) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2).
Procedure of adoption
Acting in accordance with the procedure laid down in Article 189b of the
Treaty (3), in the light of the joint text approved by the Conciliation Committee
on 9 December 1997,
Reasoning
“(1) Whereas transparent operation of the market and correct information
is of benefit to consumer protection and healthy competition between
enterprises and products;
(2) Whereas consumers must be guaranteed a high level of protection;
whereas the Community should contribute thereto by specific action which
supports and supplements the policy pursued by the Member States
regarding precise, transparent and unambiguous information for consumers
on the prices of products offered to them;
(3) Whereas the Council Resolution of 14 April 1975 on a preliminary
programme of the European Economic Community for a consumer
protection and information policy (4) and the Council Resolution of 19 May
1981 on a second programme of the European Economic Community for a
consumer protection and information policy (5) provide for the establishment
of common principles for indicating prices”.
ANNEX B – REPETITIONS THROUGH EXAMPLES
83
Main text of the Directive
Scope and objective – This part has to be transposed into the draž national
legal act, mutatis mutandis.
“The purpose of this Directive is to stipulate indication of the selling price and the
price per unit of measurement of products offered by traders to consumers in
order to improve consumer information and to facilitate comparison of prices”
Definitions
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given
quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one
kilogramme, one litre, one metre, one square metre or one cubic metre of the
product or a different single unit of quantity which is widely and customarily used
in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and
are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale
products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes
that do not fall within the sphere of his commercial or professional activity.
Commonly used terms are determined in Article 2 (selling price, unit price, trader,
consumer etc.). This is one of the operative parts of the Directive, which has to be
transposed into the dra— national legal act – literally.
Measures to be implemented into national legislation – These are examples of
parts of the Directive that also have to be transposed into national law:
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Article 3(1): The selling price and the unit price shall be indicated for all products…
Article 3(3) For products sold in bulk, only the unit price must be indicated.
Article 3/4: Any advertisement which mentions the selling price of products
referred to in Article 1 shall also indicate the unit price…..
Article 4: The selling price and the unit price must be unambiguous, easily
identifiable and clearly legible.
Possible exclusions – The Directive contains few exceptions, which allow legal
dra—ers to choose whether to transpose certain articles, depending on the policy and
decision based on the financial and other implication of the Directive on the industry,
entrepreneurs etc.:
Article 3(2): Member States may decide not to apply paragraph 1 to:
– products supplied in the course of the provision of a service,
– sales by auction and sales of works of art and antiques.
Article 5: Member States may waive the obligation to indicate the unit price of
products for which such indication would not be useful because of the products’
nature or purpose or would be liable to create confusion.
Article 6: If the obligation to indicate the unit price were to constitute an excessive
burden for certain small retail businesses because of the number of products
on sale, the sales area, the nature of the place of sale, specific conditions of sale
where the product is not directly accessible for the consumer or certain forms
of business, such as certain types of itinerant trade, Member States may, for
a transitional period following the date referred to in Article 11 (1), provide that
the obligation to indicate the unit price of products other than those sold in bulk,
which are sold in the said businesses, shall not apply, subject to Article 12.
ANNEX B – REPETITIONS THROUGH EXAMPLES
85
Application of national provisions
Article 7: Member States shall provide appropriate measures to inform all
persons concerned of the national law transposing this Directive.
Article 8: Member States shall lay down penalties for infringements of national
provisions adopted in application of this Directive, and shall take all necessary
measures to ensure that these are enforced. These penalties must be effective,
proportionate and dissuasive.
The above is an example of the directive where the method of literal transposition
should not be used. The only possible way of transposition is reformulation of the
above articles (art. 7 & 8) – due, in particularly, the penalty provisions, which have to
be formulated. The only way of transposition into national law would be to introduce
them in another law, since penalties usually cannot be regulated by secondary
legislation.
Reference to other legal acts – to be dealt with at national
level (guidelines)
Article 9: The transition period of nine years referred to in Article 1 of Directive
95/58/EC of the European Parliament and of the Council of 29 November 1995
amending Directive 79/581/EEC on consumer protection in the indication of the
prices of foodstuffs and Directive 88/314/EEC on consumer protection in the
indication of the prices of non-food products (8) shall be extended until the date
referred to in Article 11(1) of this Directive.
Minimum harmonisation clause
This directive is a minimum harmonisation directive. Minimum harmonisation sets
minimum requirements, minimum limits, and other minimum threshold which MS’
legislation must meet. Most of the EU directives regard maximum harmonisation. The
minimum harmonisation directives give a freedom to nationally regulate everything
outside the thresholds which sometimes lead to overregulation (gold-plating) and a
possibility to introduce protectionist measures. Minimum harmonisation directives
are usually used for environmental and consumer protection issues. The clause
which gives the indication of the minimum harmonisation is illustrated in Article 10:
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STEPS TO TRANSPOSITION
Article 10: This Directive shall not prevent Member States from adopting
or maintaining provisions which are more favourable as regards consumer
information and comparison of prices, without prejudice to their obligations
under the Treaty.
Rules on implementation
Article 11: Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive not later
than 18 March 2000. They shall forthwith inform the Commission thereof. The
provisions adopted shall be applicable as of that date.
When Member States adopt these measures, they shall contain a reference to
this Directive or shall be accompanied by such reference at the time of their
official publication. The methods of making such reference shall be laid down by
Member States.
Possible further harmonisation
Article 12: The Commission shall, not later than three years a§er the date
referred to in Article 11(1), submit to the European Parliament and the Council
a comprehensive report on the application of this Directive, in particular on the
application of Article 6, accompanied by a proposal.
The European Parliament and the Council shall, on this basis, re-examine the
provisions of Article 6 and shall act, in accordance with the Treaty, within three
years of the presentation by the Commission of the proposal referred to in the
first paragraph.
Article 12 provision means that MS, (this is advisable also for the candidate countries)
should follow closely the future development related to Article 6.
ANNEX B – REPETITIONS THROUGH EXAMPLES
87
Final provisions (exclusively related to MS)
Article 13 This Directive shall enter into force on the day of its publication in the
Official Journal of the European Communities.
Article 14 This Directive is addressed to the Member States.
The conclusion from the aforementioned analysis can be summarised in the following
points:
• The text of this Directive contains obligatory and non-obligatory provisions for
transposition;
• The obligatory provisions have to be transposed into national law in order
to ensure that the legal situation created in the EU law corresponds to the
national legal situation. The obligatory articles are: Article 1, Article 2, Article 3
(subparagraphs 1, 3 and 4), and Article 4.
• Some articles are subject of minimum harmonisation, while exceptions are
also possible, and it is a decision of the state as to whether or not to include
these articles. Such articles are: Article 3 (subparagraphs 2), Article 5 and
Article 6.
• The other parts of the Directive are non-obligatory parts and contain provisions
which are not subject to harmonisation and do not require transposition.
Attention should be paid to the minimum harmonisation requirements of the Directive,
which allows for provisions in national legislation that are more favourable as regards
consumer information and comparison of prices than the Directive itself.
How to transpose a regulation?
Regards EU regulations – as the acts directly applicable within the EU, it is recommended
not to change the texts in the current harmonisation process. At the same time, they
have no direct effect on RS, since it is not an EU Member State at the moment. Only
a—er EU accession will the regulations become directly applicable in RS.
Legal dra—ers shall analyse an EU regulation in a manner similar to the analysis of the
directive mentioned above. It is practically impossible to avoid rewriting regulations
in national legislation because the RS cannot develop certain areas and meet the
EU requirements without creating the structure contained in the relevant regulation.
Therefore, the definitions and the other provisions included in the regulations must
be incorporated into RS legislation. The wording should be as close as possible to
the one of EU regulation. Otherwise, divergence may occur during the application if,
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STEPS TO TRANSPOSITION
a—er the EU accession, the RS act and a directly applicable EU regulation are applied
concurrently. There could be a problem with choosing the provision to be applied in
each individual case, especially where provisions could be interpreted differently or
when regulations are amended and the national legislation introduced for the purpose
of harmonising with the EU regulations disregards those amendments.
Since the regulations do not always prescribe all the rules, supplementary national
measures are needed in many cases. Sometimes national legislation must provide
the implementation of the regulation or impose penalties for non-compliance and
to define national body for surveillance, etc. Also, the regulation itself could delegate
this authority in the following form: “Enforcement of procedures shall be governed by
the Member State”. As the Member States themselves decide the issues related to
criminal and civil enforcement procedures, the provision in this field will be specified
nationally. In principle, the provisions of such regulations are like directives and the
Member States are required to adopt national legislation governing the relevant area
or adapt the existing legislation.
How to transpose requirements of EU decisions?
As mentioned above, in accordance with Article 288 TFEU, para 4, a decision shall be
binding in its entirety. A decision which specifies those to whom it is addressed shall
be binding only on them. It may also be addressed to natural and legal persons, or only
to one or a few EU Member States. Therefore, a legal dra—er should identify whether
the provisions of the decision are applicable to all EU Member States and thus should
also be transposed at some point in the RS, or whether they are applicable to the
specific EU Member States, companies or persons. In the latter cases they do not
need to be transposed in the RS.
Example:
For example, under Directive 2001/37/EC of the European Parliament and of the
Council of 5 June 2001 on the approximation of the laws, regulations and administrative
provisions of the Member States concerning the manufacture, presentation and sale
of tobacco products, each unit packet of tobacco products, except for tobacco for oral
use and other smokeless tobacco products, and any outside packaging, with the
exception of additional transparent wrappers, must carry a general warning and an
additional warning taken from the list set out in Annex I to that Directive.
The choice of using such warnings is le— to the discretion of EU Member States.
The Member States could decide whether health warnings in the form of colour
photographs or other illustrations are required in combination with the additional
warnings. Such combined warnings shall be in accordance with the Commission
ANNEX B – REPETITIONS THROUGH EXAMPLES
89
Decision of 5 September 2003 on the use of colour photographs or other
illustrations as health warnings on tobacco packages.
Therefore, the RS may decide to introduce the requirement to label each unit of
tobacco with the health warnings in the form of colour photographs. In this case,
the Commission Decision 2003/641/EC of 5 September 2003 on the use of colour
photographs or other illustrations as health warnings on tobacco packages40 shall be
transposed into RS legislation. The aim of this Decision is to introduce the requirements
to label each unit of tobacco (packs of cigarettes) with the health warnings in the form
of colour photographs or other illustrations.
While transposing the decisions into the RS national legislation, the choice of type of
the RS legal act and the techniques applied, which are similar to the transposition of
the directives, should be observed. Unlike directives and regulations, no references to
them in the RS legal acts are needed.
How to transpose requirements of EU recommendations
and opinions
As mentioned above, recommendations and opinions belong to the EU “so— law”,
which nevertheless may be applicable in practice. Their provisions are frequently used
by EU institutions in order to clarify the provisions of legally binding EU legal acts.
Member States, as well as the countries willing to join the European Union, should
follow the directions set by the recommendations and opinions.
The recommendations “cannot in themselves confer rights on individuals upon
which the latter may rely before national courts. However, national courts are
bound to take those recommendations into consideration in order to decide
disputes submitted to them, in particular where they are capable of casting light
on the interpretation of other provisions of national or Community law.”42
Thus RS legal dra—ers may also transpose the provisions of recommendations and
opinions into national law if they consider it necessary and if these provisions are
sufficiently clear and therefore could be “converted” into legally binding rules. In
40 Commission Decision 2003/641/EC of 5 September 2003 on the use of colour photographs or other illustrations
as health warnings on tobacco packages (Text with EEA relevance) (notified under document number C(2003)
3184), Official Journal of the European Union, L 226, 10.9.2003, p. 24–26.
41 Case C-322/88, Judgment of the Court (Second Chamber) of 13 December 1989, Salvatore Grimaldi v Fonds des
maladies professionnelles, European Court reports 1989. P. 04407
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STEPS TO TRANSPOSITION
doing this proper attention should be paid by the legal dra—ers to the contents of the
recommendations and opinions in issue in order to avoid the issues of possible “goldplating” (please see above on this subject).
While transposing the decisions into RS national legislation, the choice of type of RS
legal act and the techniques, which are similar to the transposition of the directives,
should be observed. Unlike directives and regulations, no references to them in the
RS legal acts are needed.
How to transpose requirements of EU framework decisions
Before the Treaty of Lisbon entered into force, Article 34 (2)(b) of the Treaty on the
European Union had stipulated that the Council may adopt framework decisions for
the purpose of approximation of the laws and regulations of the Member States.
Similarly to directives, the framework decisions shall be binding upon the Member
States as to the result to be achieved but shall leave to the national authorities the
choice of form and methods. However they shall not entail direct effect.
Therefore such decisions were adopted for the approximation of the criminal law and
criminal Procedure law of the EU Member States, as well as the for strengthening
of the judicial and police cooperation in the criminal matters. However, a—er entry
into force of the Treaty of Lisbon, these decisions will be gradually replaced by the
directives. As long as they are in force, it is the obligation of the RS to harmonise its
legislation with the requirements of framework decisions.
When transposing the framework decisions into RS national legislation, the choice
of type of the RS legal act and techniques, which are similar to the transposition of
the directives, should be observed. Unlike directives and regulations, no references to
them in RS legal acts are needed.
What to avoid during legal harmonisation process
This Chapter provides for a number of examples of legal dra—ing activities, which
need to be avoided during the law harmonisation process. All examples are based on
practical experiences.
Automatic reliance on the previously established concordance
The legal dra—er has to consult with the existing domestic legislation and properly
identify whether the current legal acts are in line with the requirements of the directive
in question.
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91
Automatic reliance on the fact that, for example, a Serbian legal act contains a
reference to the Directive or to the history of its adoption (different explanatory
documents, which accompanied previous legal dra—s etc.) would be incorrect
approach, as the legal dra—er must have the table of concordance, which illustrates
whether the respective directive was fully transposed into national legal act(s) or not.
Many times it looks like the directive is fully transposed and a—er examination, we
could realize that the transposition is only partial or does not exists at all. Therefore,
Statement of Compatibility (SoC) and Tables of Concordance (TOC) should be obligatory
fulfilled by legal dra—ers and checked by SEIO.
Copy-out directive provisions or legislation from the neighbour countries
Situations could sometimes arise, where the related domestic legislation was dra—ed
by the responsible institutions on the basis of the research of the legislation of the
different Member States or candidate countries from the region, especially if there is
no language barrier.
Simple copying out of foreign country legislation could lead to mistakes due to the
differences between domestic and foreign legal systems, to wrong transposition due
to the translation issues or non-adaptation to the RS situation. It could happen also
that other country did not fully transpose EU legal act or its transposition was done
incorrectly and, copying their legislation would incorporate their mistakes as well.
It is recommended to check the solutions from the neighbourhood, but a healthy
(critical) distance is required. Legal systems are not completely identical and solutions
cannot always be the same.
Additionally, in a neighbouring country mistakes might appear related to transposition
or transposition could be incomplete. Solutions from various countries are helpful
and are recommended to be checked, but due attention is required.
Failure to identify the related directives and to transpose them
All relevant EU legal acts from one sector must be identified. Therefore, the NPAA
shall be always consulted. Many times, the transposition of one directive or regulation
requests also the transposition of its related EU legislation through the same law.(e.g.
food safety and hygiene legislation package).
The legal dra—er must always check not only a directive which should be transposed
but also the related ones. Many times, several connected directives will be included
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in one domestic law. The NPAA clearly defines all EU legal acts from the area with
planned transposition time table and who does what.
Incorrect terminology used in the domestic legal act
The mistakes in the legal or technical terminology, non-existence of the particular
terms in Serbian language, mistakes in the translation of the directive into Serbian,
may cause the incorrect transposition of an EU legal act into domestic legal system.
Translation and its legal and professional review are of a key importance since we are
dealing with the development of the national legal terminology.
Example: “safety” or “security” of toys?
If the wrong terminology is used in the domestic legislation, it will take years to
remedy the situation.
Therefore, in 2009, a centralised system for the translation of the EU acquis was
established in the Republic of Serbia, coordinated by SEIO and which complies
with the needs of harmonisation. This system includes expert, legal and language
revision, while harmonised and standardised terminology, established as a result
of the process, is published in the online term-based Evronim which can be found
on the SEIO’s webpage (http://prevodjenje.seio.gov.rs/evronim/). The Government
of the Republic of Serbia also adopted the Style Guide for the Translation of the EU
Acquis containing nomotechnical rules and general legal terminology to be used in
the process of translation of the EU acquis.
Implementation of the repealed or amended directive
Many EU legal acts were repealed or amended with the same or by some other acts.
Legal dra—er must be very careful that he/she is transposing the latest version.
The legal dra—er should be careful, because the legal situations in many directives
which are amended are valid only until a specific date or time period. Therefore it is
better not to transpose such a solution that would be valid only for e.g. a couple of
months.
ANNEX B – REPETITIONS THROUGH EXAMPLES
93
Referring to EU legal act instead of transposing it
Such approach is wrong. Never use such technique because referring to the EU legal
act instead of transposing it is also against the Constitution – foreign legal acts cannot
be enforced. The directive should be transposed, not only referred to.
Changing or non-literal transposition of the definitions
Majority of directives start with the definitions in the second or third Article. Those
definitions are very important and have to be transposed, but should not be changed.
Example: the majority of directives contain different terms and concepts, which, if
transposed without definitions, may lead to serious breaches of EU law.
To change key definitions from a directive is a wrong approach, causing amendments
of a legal act in a near future and additional efforts because of that.
We recommend not skipping or changing the definitions, as the transposition of the
entire directive might go wrong. The change of the key definitions, as in the above
example, could render all the transposition wrong.
Referring to annexes from directives
Directives are not directly binding. They have to be transposed correctly into domestic
legislation. The same is valid for Annexes, which are part of the EU legal acts.
Using obligations for EU Member States to establish the enforcement
Member State is obliged to establish necessary penalty provisions or the proper
control measures. EU as such usually has no such competencies; therefore it obliges
the MS through provisions in the directives or regulations to prescribe the penalties in
case of violations of the EU law.
It shall be clearly indicated which domestic institution will deal with the subject matter.
The relevant measures shall be clearly prescribed in the national legal act or acts.
Special attention must be dedicated to avoid that two or more domestic laws prescribe
the same penalties or, even worse, that they prescribe different penalties for the same
offenses.
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Requirements of EU legal acts related to actions of the EU Institutions
should not be transposed
Some of the provisions of the EU legal acts contain obligations of the EU institutions
and this has nothing to do with Member States obligations.
The obligations of the European Commission, which are included in directives or
regulations, do not require any transposition measures at the national level.
Directive implemented by the wrong type of the national legal act
It is very important that directives are transposed into domestic legislation by proper
domestic legal act. Examples: The directive could be wrongly transposed:
– by the internal legal acts (e.g. instruction of the responsible institution) and
therefore is not legally binding for the individuals and legal persons.
– by a by-law which may not impose the penalty provisions or may not establish
new state institutions or bodies, or
– there is no proper delegation (legal basis) in the national law, which would
provide for the right of a ministry to initiate the harmonised dra— by-law and/
or for the Government or other competent authority-the legal delegation of the
competence to adopt it.
Legal dra—ers must carefully study the directive and before transposing it, the decision
must be adopted which domestic legal act will be used for harmonisation. It might
be a law which is adopted only by Parliament, a by-law adopted by Government or
by minister or even through some administrative instructions. See the sections on
transposition: Chapter 4.
Wrong method of transposition is chosen
Too many different directives transposed into one domestic law or each directive is
transposed by one special domestic legal act. These are case by case decisions.
Example: Too many different directives were transposed into one domestic legal act
or each directive was transposed by the special law or bylaw.
Although it is up to the country to decide on the number of national legal acts
transposing one or more directives, the good practice shows that in the areas where a
lot of directives were adopted (for example, in the areas of labour law or migration law)
it is more appropriate to have a single national legal act (in some countries-code), which
would provide for the well-structured and logical transposition of several EU directives.
ANNEX B – REPETITIONS THROUGH EXAMPLES
95
The practice of elaboration of one special national legal act for the transposition of only
one directive might be justified in the specific cases, for example, when the subject
matter was not previously regulated by any national legal acts and is completely new
for the country, or when the subject matter is a very technical one etc.
Non-compliance with international obligations
International agreements always contain deadlines for certain legislation to
be adopted or amended and every state has to respect it to keep its credibility in
international relations. The SAA, as an example of the international agreement, has
numerous deadlines concerning legal harmonisation to be respected.
Final provisions in domestic legislation
Final provisions in each legal act are very important. They define the entry into force,
derogations, exemptions, repealing of other provisions, etc.
At the moment42, the transitional and final provisions which define when a part of
the act or specific provisions/articles are entering into force“ at the date of the RS
accession to the EU“, could not be used. But, the amendments are planned (see
Chapter 4) in that respect and those relate to The Uniform Methodological Rules for
the Dra—ing of Regulations in the RS. As mentioned before, the solution for this will be
most likely presented and adopted under The Uniform Methodological Rules.
6
42 February 2016
7
ANNEX C
Implementation
considerations or
practical application
ANNEX C ³ IMPLEMENTATION
CONSIDERATIONS OR PRACTICAL
APPLICATION
Regulations. Regulations are (as elaborated earlier) directly applicable to MS, but
some things have to be done, in terms of implementation. Serbia shall transpose
them in the same manner as Directives, with some reservations related to legal
issues that concern direct applicability of the Regulations, as earlier mentioned in the
document. Some regulations require designation or establishment of authorities or
bodies responsible for their implementation; this may be done by the law or decree,
and, in a rare case, by the administrative order. Candidate countries should ensure
that the necessary administrative and institutional measures are in place by the date
of the accession and that any overlapping or conflicting national laws are repealed.
This is important in terms of legal certainty and the Government shall ensure that the
procedures are in place, allowing for the easier identification of the provisions
transposed in order to revoke/repeal them when/if necessary. This should be
addressed in the amendments to the Rules for dra—ing legislation in Serbia, as
mentioned earlier.
STEPS TO IMPLEMENT REGULATIONS AND DIRECTIVES
• Identify what legislation (if any) is necessary (e.g. to prescribe sanctions or
designate competent authorities)
• Ascertain a legal timeframe and action, if relevant
• Dra— administrative instructions and procedures to the relevant authorities
• Consult with others: government, other Ministries, departments, agencies
and interest groups – all affected by the regulation (e.g. importers and exporters; industrial sectors and companies, NGOs etc.)
• Provide necessary staff and financial and other resources
• Train Staff
• Provide the relevant documents, forms and certification to the groups concerned
• A—er accession, monitor implementation and report to the EU Commission.
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Where there is the EU legislation in a specific sector containing a mixture of directives
and regulations, countries must take particular care to ensure that the national
measures implementing those directives are fully integrated and do not conflict
with the EU regulations. There are fewer steps to implementing regulations than to
directive, for MS, due to their nature. For the Candidate country like Serbia, the steps
are the same in the majority of cases.
Directives o—en require the establishment of the necessary infrastructure,
administrative or otherwise, in order to be implementable (especially if the sector
in question was not adequately regulated nationally, or never existed before). For
example, for the directives which impose costs and obligations on producers/
importers (e.g. such as WBA43 and WEEE44, or UWWTP45 in the sector of Environment)
it is particularly important that there is a comprehensive plan for implementation
before dra—ing the legislation necessary to give the effect to that plan. The financial
implications of a full implementation need to be carefully considered, as these
might be relevant to negotiation of any transitional periods with the European
Commission.
MS´s implementation of an individual directive (and could be applied mutatis mutandis
to candidate countries obligations which are undergoing harmonisation process) is
dealt with through the steps that need to be followed. Usually, a Directive’ specific
implementation plans (DSIP46) are developed for this purpose. These kinds of plans
are giving a useful overview over the possible impact of the directive on different
sectors, while emphasising the issues to be addressed through implementation.
The implementation actions could be grouped according to main categories, i.e.:
1. Establish administrative structures and the competent authority/ies,
2. Build capacity of the Staff,
3. Assign resources, if the existing are not adequate for a proper implementation
and enforcement of the Directive,
4. Planning – of the above and ahead for 5-6 years period, also if planning in
terms of requirements of the Directive, i.e., waste management plans,
5. Promotion and awareness rising – i.e., waste prevention, re-use, recycling and
recovery
6. Permits, exemption, registration (as applicable, depending on a Directive),
43 32006L0066 – Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on
batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC (Text with
EEA relevance).
44 32012L0019 – Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste
electrical and electronic equipment (WEEE) Text with EEA relevance
45 31991L0271 – Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, OJ L 135, 30.5.1991,
p. 40–52
46 Directive Specific Implementation Plan
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ANNEX C – IMPLEMENTATION CONSIDERATIONS OR PRACTICAL APPLICATION
7. Financial analysis of impact on industry, administration, citizens, etc. – RIA,
8. Reporting to the Commission (not for the candidate countries but could be
addressed in the transitional provisions).
For example: Table 4 below illustrates the key tasks involved in implementing EC
Waste Framework Directive (WFD)47, and those could be summarised in the following
(none exhaustive) checklist of implementation actions with proposed provisional timeframes and responsible institutions/bodies, all based on the requirements of some of
the provisions of the WFD:
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
Action no.
Article(s)
WFD
2008/98/
EC
Description of action
1
Establish administrative
structures, build
capacity, assign
resources
1.1
Appoint the Competent
Authority (CA) at national
level
Government
through Law
Year 01
1.2
Appoint personnel at
national level and local
level
MoAEP48/
Municipalities
progressively
Year 02 – 13
1.3
Appoint inspectors for
waste management
(other than IPPC
installations)
(Regulation
consideration – to be
established through the
law)
Environmental Inspectorates
progressively
Year 03 – 06
47 32008L0098 – Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on
waste and repealing certain Directives (Text with EEA relevance)
48 Ministry of Agriculture and Environmental Protection (Serbia)
7
STEPS TO TRANSPOSITION
Article(s)
WFD
2008/98/
EC
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
Action no.
102
Description of action
1.4
Plan new waste
management functions
and build capacity
MoAEP
Year 01-03
1.5
Consultancy, training,
travel and other
miscellaneous activities
needed to support waste
management functions
at MoAEP
MoAEP
progressively
Year 02 – 06
1.6
Consultancy, training travel
and other miscellaneous
activities needed to support
waste management
functions at regional level/
municipal level
Municipalities
Year 02 – 13
2
Waste management
planning
2.1
National waste
management planning
(Regulation
considerations – to be
included in legislation)
MoAEP
Year 00 – 01
2.2
Public consultation,
participation
MoAEP
Year 01
2.3
Regional waste
management planning
(Regulation
considerations – to be
included in legislation)
Regions/
municipalities
Year 01 – 03
2.4
Public consultation,
participation
Regions/
municipalities
Year 02 – 03
28
4(2)
103
ANNEX C – IMPLEMENTATION CONSIDERATIONS OR PRACTICAL APPLICATION
Responsible
Institution
Action no.
Article(s)
WFD
2008/98/
EC
Implementation period
(year)
Provisional
– just as an
example
Description of action
3
Promote re-use,
recovery, recycling and
prevention
3.1
Development of a
strategy for re-use,
recovery, recycling and
prevention
11(1),
11(2), 29
MoAEP
Year 02 – 03
3.2
Establish systems for
separate collection and
upgrading of paper and
board, glass, plastics,
metals from households
(Regulation
considerations – to be
included in legislation)
15(1), 17
MoAEP
Year 04-08
3.3
Establish systems
to encourage home
composting of kitchen
and garden waste
15(1), 17,
22
MoAEP
Year 05
3.4
Establish systems for
composting of municipal
park and garden waste in
parks
22
MoAEP
Year 06 – 08
3.5
Establish systems for
separate collection and
recycling of Construction
&Demolition waste
(Regulation
considerations – to be
included in legislation)
11(2),
15(1), 17
Construction
industry
Year 04 – 09
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STEPS TO TRANSPOSITION
23, 24, 25,
26
MoAEP
Year 05 – 06
23, 24, 25,
26
MoAEP
Year 05 – 06
5.1
Build institutional
capacity and support
development of national
hazardous industrial
waste management plan,
including feasibility study
for disposal facility for
hazardous waste plus
other tasks
17, 28
MoAEP
Year 02 – 03
5.2
Prohibition on and
termination of mixing of
HW with other HW or with
non-hazardous waste
(Regulation
considerations – to be
included in legislation)
18
Industry
Year 05
Action no.
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
Description of action
Article(s)
WFD
2008/98/
EC
4
Permits, exemption,
registration
(Regulation
considerations – to be
included in legislation)
23, 24,
25, 26
4.1
Appoint personnel for
permits, exemption,
registration
4.2
Technical assistance
project to build capacity,
develop criteria,
procedures, etc.
5
Hazardous waste
management
(other than streams
mentioned below)
105
Action no.
ANNEX C – IMPLEMENTATION CONSIDERATIONS OR PRACTICAL APPLICATION
Description of action
Article(s)
WFD
2008/98/
EC
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
5.3
Packaging and labelling
of hazardous waste
(Regulation
considerations – to be
included in legislation)
19(1)
Industry
Year 05
5.4
Intermediate storage
of HW waste before
disposal
(Regulation
considerations – to be
included in legislation)
17
MoAEP
Year 05
5.5
Preparation of transport
documents
(Regulation
considerations – to be
included in legislation)
19(2)
Industry
Year 05
5.6
Disposal of HW which
must be incinerated/
exported
(Regulation
considerations – to be
included in legislation)
17
Industry
Year 05
5.7
Transport of HW to
central facility
(Regulation
considerations – to be
included in legislation)
17
MoAEP
Year 05
7
STEPS TO TRANSPOSITION
Action no.
106
Description of action
Article(s)
WFD
2008/98/
EC
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
5.8
Record-keeping,
producers and
transporters of HW
(Regulation
considerations – to be
included in legislation)
35
Industry
Year 05
5.9
Establishment of an
accredited sampling
and analysis facility
for identification of
hazardous waste
(Regulation
considerations – to be
included in legislation)
MoAEP
Year 05
6
Healthcare waste
(Regulation
considerations – to be
included in legislation
as relevant)
6.1
Preparation of national
management plan for
healthcare waste
MoAEP, MoH
Year 03
6.2
Appoint healthcare waste
manager in hospitals
Healthcare
institutions
(HIs)
Year 04
6.3
Training of staff,
production of handbooks
MoH
Year 04
6.4
Purchase and operation
of healthcare waste
disinfection installation
MoAEP, MoH
Year 04
107
ANNEX C – IMPLEMENTATION CONSIDERATIONS OR PRACTICAL APPLICATION
Responsible
Institution
Action no.
Article(s)
WFD
2008/98/
EC
Implementation period
(year)
Provisional
– just as an
example
Description of action
6.5
Purchase of color-coded
waste receptacles in HEs
HIs
Year 04
6.6
Transport of healthcare
waste to the waste
disinfection facilities
MoAEP
Year 04
6.7
Packaging and labelling
of healthcare waste
HIs
Year 04
6.8
Appointment of
designated room/space
for healthcare waste
awaiting collection
HIs
Year 04
6.9
Preparation of transport
documents
HIs
Year 04
6.10
Provision of staff training
HIs
Year 04
6.11
Record-keeping
healthcare waste
producers
35
HIs
Year 04
7
Establish systems of
separate collection of
waste oils
(Regulation
considerations – to be
included in legislation)
7.1
Develop plan for waste
oil management
21(1)
MoAEP
Year 05
7.2
Implement collection and
reprocessing / disposal
scheme
21(1)
Industry
Year 06
7
STEPS TO TRANSPOSITION
Action no.
108
Description of action
8
Financial analysis
8.1
Develop sustainable
financing for waste
management based
on Private Public
Partnership (PPP)
(Regulation
considerations – to be
included in legislation
as relevant)
9
Reporting
9.1
Preparing reports for the
European Commission
as required by the Waste
Directive
Article(s)
WFD
2008/98/
EC
Responsible
Institution
Implementation period
(year)
Provisional
– just as an
example
14
MoAEP
Year 03
6(3), 7(2),
7(3), 11(5),
16(1),
25(3),
33(1), 37
MoAEP
Year 07
8
ANNEX D
Glossary of terms
and explanatory notes
ANNEX D ³ GLOSSARY OF TERMS
AND EXPLANATORY NOTES
Item
no.
1
Subject
Description
EU acquis
The acquis is the body of common rights and obligations
that is binding on all the EU Member States. It is
constantly evolving and comprises:
• thecontent,principlesandpoliticalobjectivesof
the Treaties;
• legislationadoptedpursuanttotheTreatiesand
the case law of the Court of Justice;
• declarationsandresolutionsadoptedbythe
Union;
• instrumentsundertheCommonForeignand
Security Policy;
• internationalagreementsconcludedbytheUnion
and those entered into by the Member States
among themselves within the sphere of the
Union’s activities49.
Applicant countries have to accept the acquis before
they can join the Union. Derogations from the acquis are
granted only in exceptional circumstances and are limited
in scope. To integrate into the European Union, applicant
countries will have to transpose the acquis into their
national legislation and implement it from the moment of
their accession.
49 http://ec.europa.eu/enlargement/policy/glossary/terms/acquis_en.htm
8
STEPS TO TRANSPOSITION
112
Item
no.
Subject
Description
1
EU acquis
General EU position, Ministerial meeting opening the
Intergovernmental Conference on the Accession of Serbia
to the European Union (Brussels, 21 January 2014: “The
acquis includes, inter alia, the objectives and principles
on which the Union is founded, as set out in the Treaty
on European Union. As a future Member State, Serbia
is expect to adhere to the values on which the Union is
founded. Furthermore, the EU accession implies the
timely and effective implementation of the entire body of
EU law or the acquis, as it stands at the time of accession.
The development of sufficient administrative and judicial
capacity is the key for fulfilling all obligations stemming
from membership.50
2
‘copy-out’
Verbatim transposition; Word for word transposition of a
directive
3
Double
Banking
Duplication of a particular legal requirement in two (or
more) pieces of legislation.
4
EU Law
see Community acquis
5
EU Decision
Decisions51 are the EU laws relating to specific cases.
They can come from the EU Council (sometimes jointly
with the European Parliament) or the Commission.
They can require authorities and individuals in Member
States either to do something or stop doing something,
and can also confer rights on them.
EU decisions are:
• addressedtospecificparties(unlikeregulations),
• fullybinding.
50 http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=AD%201%202014%20INIT
51 http://ec.europa.eu/eu_law/introduction/what_decision_en.htm
ANNEX D – GLOSSARY OF TERMS AND EXPLANATORY NOTES
Item
no.
113
Subject
Description
6
EU Directive
EU Directives52 lay down certain results/objectives/goals
that must be achieved in every Member State. National
authorities have to adapt their laws to meet these goals,
but are free to decide how to do so. Directives may
concern one or more Member States, or all of them.
Each directive specifies the date by which the national
laws must be adapted – giving the national authorities
the room for manoeuvre within the deadlines necessary
to take account of differing national situations.
Directives are used to bring different national laws into
line with each other, and are particularly common in
matters affecting the operation of the single market (e.g.
product safety standards).
7
EU
Regulation
Regulations53 are the most direct form of the EU law – as
soon as they are passed, they have binding legal force
throughout every Member State, on a par with national
laws. National governments do not have to take action
themselves to implement EU regulations.
They are different from directives which are addressed
to national authorities who must then take an action
to make them part of the national law, as well as from
decisions which apply in specific cases only, involving
particular authorities or individuals.
Regulations are passed either jointly by the EU Council
and the European Parliament, or by the Commission
alone.
52 http://ec.europa.eu/eu_law/introduction/what_directive_en.htm
53 http://ec.europa.eu/eu_law/introduction/what_regulation_en.htm
8
STEPS TO TRANSPOSITION
114
Item
no.
8
Subject
Description
Numbering
of EU legal
acts54
From 1 January 2015, the numbering of the EU legal
acts has been changed. A new method has been
defined to attribute numbers to documents published
in the L (Legislation) series of the Official Journal of the
European Union (OJ). According to this new method,
which harmonises and simplifies the previous divergent
practices, EU legal acts will bear unique, sequential
numbers. This will facilitate access to EU law and
also make it easier to identify and refer to legal acts.
Documents published in the L series of the OJ from 1
January 2015 will be numbered by the Publications Office
of the European Union in the following standardised way:
(domain) YYYY/N
The domain – (EU), (Euratom),
(EU, Euratom), (CFSP) — is placed at the beginning of
the number in brackets; it continues to be language
dependent.
YYYY represents the year of publication and always
comprises four digits.
N represents the sequential number of the document
for a given year, regardless of the domain and the type
of document, and is composed of as many digits as
necessary.
Examples:
Regulation (EU) 2015/1 of the European Parliament and
of the Council …
Directive (EU) 2015/2 of the European Parliament and of
the Council …
Council Decision (EU) 2015/3 …
Council Decision (CFSP) 2015/4 …
Commission Delegated Regulation (EU) 2015/5 …
Commission Implementing Directive (EU) 2015/6 …
Decision (EU) 2015/7 of the European Parliament …
Decision (EU, Euratom) 2015/8 of the European
Parliament …
54 For any questions concerning the numbering of EU legal acts, contact the EUR-Lex Helpdesk at http://eur-lex.
europa.eu/contact.html.
ANNEX D – GLOSSARY OF TERMS AND EXPLANATORY NOTES
Item
no.
115
Subject
Description
9
Gold Plating
Over-regulation in EU-transposition.
10
Regulatory
Impact Assessment
Impact Assessment55 identifies the likely positive and
negative impacts of proposed policy actions, enabling
informed political judgements to be made about the
proposal and identify trade-offs in achieving competing
objectives. Formal Regulatory Impact Assessment56 is
mandatory for Serbian primary legislation but will soon
be obligatory also for the secondary legislation.
11
EU guidelines for implementation
of directives/
regulations
or of provisions of the
legal acts
EU Commission regularly issues explanatory notes
or Guidelines to implementation of directives and
regulations especially those who are of a complex nature.
12
Process of
transposition
in Serbia
Formally, SEIO provides the translation of the EUlegal acts for transposition. The correct and complete
translation using the correct terminology at the outset of
a transposition project is essential when aligning with EU
legislation.
1. The first level of translation is provided by the
translators engaged by SEIO (the header of the translated
legal acts states: “.Celex no: 32009L0048. Proofread
translation: Name and date, Full name proof-readers,
date. Professional editing: name of editor, date. Legal
and technical editing: name of editor, date; the language
editing: name of the editor, the date.
2. A—er that, the expert editors scrutinize the meaning
and correctness of translation of expert terms (based on
Decision on the Establishment of the working group for
editing the translation of EU acquis („Official Gazette of
RS“, No. 115/13).
55 http://eur-lex.europa.eu/legal-content/EN/ALL/;jsessionid=p2TfT8GT1GXWpXlxcz0TcCTNn3rgPd6Gsg0XpcxcCl
QmTNXypT2v!1810621735?uri=CELEX:52002DC0276
56 http://www.rsjp.gov.rs/eng/prirucnik-za-sprovodjene-aep/t
8
116
Item
no.
12
STEPS TO TRANSPOSITION
Subject
Description
Process of
transposition
in Serbia
3. Legal editing is the task of the Republican Secretariat
for Legislation – RSL.
4. Language editing is done by the editors engaged by the
SEIO
For any directive transposition, Correlation Tables, also
known as “tables of correlation” (TOC), shall be developed.
For a uniform presentation, the instructions for filling
in those TOC must be followed. Those instructions are
published as “Conclusion to the Law on Government,
Article 43, para 3” in the Official Gazette of 12 June 2013,
no. 2180/2013.
The TOC are subject to consultation with the ministerial
legal services (MLS), while the TOC is submitted
to those services in a “consultation package” that
contains, amongst others, the endorsed Regulatory
Impact Analysis (RIA). The MLS may request the WG
for amendments to the TOC before the endorsement.
The possibly revised consultation package is subject to
consultation by stakeholders that may be affected by the
new legislation;
In Serbia, the Formal Regulatory Impact Assessment
is mandatory to be performed for legislation, i.e., laws.
Typically, in conjunction with establishing the WG, the
Minister orders the Regulatory Impact Assessment – RIA
to be made. Depending on the subject or complexity of
the new EU legislation to be introduced, respectively
the degree of anticipated change in regulation of the
sector, the Minister decides whether the RIA is carried
out by the WG, another task force in the administration,
or by an external party of the private sector. Details
are regulated by specific procedure. The Secretariat for
Public Policy – Department for Regulatory Reform and
Regulatory Impact Assessment is empowered to perform
coordination.
ANNEX D – GLOSSARY OF TERMS AND EXPLANATORY NOTES
Item
no.
117
Subject
Description
12
Process of
transposition
in Serbia
Also the form for FIA is given and has to be filled, as
earlier mentioned in the document. Instructions for
filling the Form FIA – form for the standard methodology
for the financial impact assessment of the act. A—er
endorsement of the RIA and consultation of concerned
stakeholders, the ministerial legal services finalise the
text of the legislation according to the Methodology Rules
for dra—ing legislation OG No.: 21/2010 (for laws) or No.
75/2010 (for sub-laws) respectively, in collaboration with
the WG.
Consultation during a legislative process starts as soon
as the planning phase, and all concerned parties shall be
involved. The present Serbian procedure for achieving
consensus and approval for legislation consists of the
•
Primarystakeholdergrouphearing
•
Publichearing
•
LegislativeSecretariatcontrol
•
GeneralSecretariat,committees’controland
comments
•
NationalAssemblyapproval(forlaws/notfor
sub laws)
A—er passing and adoption the respective legislative act
is forwarded to be published in the Official Gazette of the
RS. The WG concludes its work by sending to SEIO a final
TOC, which corresponds to the approved legislation.
13
Public Consultations
“Guidelines for the inclusion of civil society in the
regulation adoption process” (Government’ Conclusion 05
No. 011-8872 / 2014).
The Guidelines provide for the parameters on how and
when to include civil society into legislative process: from
dra—ing to adoption and monitoring of the enforcement
of legislation. The modalities for a participation of civil
society in this process are identified to be through
information, consultation, a direct inclusion into dra—ing,
and through partnership.
8
119
BIBLIOGRAPHY
– ECJ Cases, Script, Copenhagen University; 2000
– EU Law, the essential guide to legal workings of the EU; S. Weatherill & P.
Beaumont; Third edition
– European Environmental Law; Prof. Jan H. Jans; Second revised edition; 2000
– European Union, Environmental Law Approximation Progress Monitoring Manual
2011
– Commission Recommendation of 12 July 2004 on the transposition into national
law of Directives affecting the internal market (Text with EEA relevance)
– How to best transpose EU Directives, Jerome Franck
– European Centre for Parliamentary Research and Documentation, DirectorateGeneral Internal Policies, Policy Department C, Citizens Rights and Constitutional
Affairs: Study on the comparison between the various legal techniques used in the
Member States to transpose EC law in the national legal order; June 2007
– DG Environment; Handbook for Implementation of EU Environmental Legislation
http://ec.europa.eu/environment/archives/enlarg/handbook/handbook.pdf
– Commission of European Communities, “Guide to the Approximation of The
European Union Environmental Legislation”; revised and updated version SEC (97)
1608 of 25/08/1997
– Guidelines on transposition of EU law under the EU project no. 2012/292-614
“Strengthening of the Serbian system of Market Surveillance for non-food and
food products”
– Practical Guidelines for Legal Approximation of the Legislation with the legislation
of the European Union, GiZ; April 2014
STEPS TO TRANSPOSITION
GUIDE FOR DEVELOPMENT OF NATIONAL
LEGISLATION ALIGNED WITH THE EU ACQUIS