CC BY
33Sagidan Anar,
Leading research fellow at the Department of International and Comparative Law of the Institute of the legislation of The Republic of Kazakhstan, PhD
THE DEVELOPMENT AND ADOPTION OF HARMONISATION LEGISLATION IN THE EUROPEAN UNION
The goal of the article is to examine particular processes of development and adoption of harmonisation legislation in the European Union (EU). Studying the experience of harmonisation legislation in the EU is very important for states that are beginning to integrate within the international unions, for example the Republic of the Kazakhstan. Nowadays Kazakhstan must devote considerable energy to replacing and changing existing laws, to drafting of new instruments, modeling of new structures and operating procedures to harmonisation legislation in Eurasian Economic Community (EurAsEC) and Customs Union. The past decade has convincingly shown the demand for EurAsEC achievements such as the creation of the Customs Union and the Common Economic Space. Therefore it is essential to develop a good understanding of the role, methods and approaches to harmonisation in the EU.
Development and adoption of harmonisation legislation in the EU
The EU law is a unique legal regime with direct impacts on the law of member-states (MS). It is different from classical international law because it reflects an autonomous international legal regime which is integrated into the law of EU MS. The EU is not a federal state like the United States of America. However, it is not a purely intergovernmental organisation like the United Nations. According to Peterson and Shackleton: "What distinguishes the EU above all is its institutions: they have no close analogues at either the national or international levels"1. Therefore it is important to know what each of the EU institutions does and how they work together in the law-making process.
The three main decision-making institutions that produce the policies and laws that apply throughout the EU are: the European Parliament (EP), the Council of the European Union, and the European
Commission2.The European Commission proposes new legislation, but it is the Council and the Parliament that adopt the laws. The Commission and the MS then implement them, and the member states enforce them.
The main institutions of EU law are directives and regulations (Art.288 TFEU), further discussed below. EU law-making has three main procedures: 'co-decision'(now also known as the 'ordinary legislative procedure'), 'consultation' and 'assent'. Every proposal for a new European law must be based on a specific Treaty article, referred to as the 'legal basis' of the proposal) (Art.5 TEU). This determines which legislative procedure must be fol-lowed.Most important provisions governing harmonisation are founded in Art.114 TFEU which calls for law-making under the ordinary legislative procedure. The ordinary legislative procedure or Co-decision is the procedure now used for most EU law-making. Parliament shares legislative power equally with the Council. The procedure provides for two successive 'readings' in each institution. If an agreement is reached in these readings, the law can be passed. If not, it will be put before a conciliation committee, composed of equal numbers of Council and Parliament representatives. Once this committee has reached an agreement, the agreed text is sent again to Parliament and the Council so that they can finally adopt it as law. However, in over 70% of the cases, the proposal is agreed on after the first reading. This is called 'fast-tracking', and in the past 10 years it has become a very prominent feature of EU law-making3.
There are other law-procedures (consultation and assent) but they are less relevant in context.
Approaches to harmonisation
In the development of EU law "old" and "new" approaches to the harmonization of legislation can be dis-
1 Peterson, J. &Shackleton, M. (2002) The Institutions of European Union, Oxford: Oxford University Press, p.2
2 Art. 14 TEU (EP); Art.16 TEU (Council); Art.17 TEU (Commission). See also: http://europa.eu/institutions - bodies/ index. en.htm
3 Ruiter R. & Neuhold C. 'Why Is Fast Track the Way to Go? Justifications for Early Agreement in the Co-decision Procedure and Their Effects', European Law Journal, Vol.18, №4: pp.536-554
tinguished. A change from the "traditional" approach to harmonisation legislation in EU and the development of the "new" approaches was long overdue in the early 1980s. The process of elimination of technical barriers to trade in the EU had been very slow, which prevented the achievement of a common free market in the Community. In a seminal article on the transition from the old to the new approach to harmonization, Jacques Pelkmansexamined the constituent elements of the new approach bymeans of a systematic comparison with the drawbacks of the old approach. He identified nine considerable disadvantages of the "old" approach, including: time-consuming and cumbersome procedures; excessive uniformity; unanimity (ex. Art. 100-, EEC); the failure to develop a linkage between the harmonization of technical regulations and European standardization, leading to wasteful duplication, useless inconsistencies and time lost; the slowness of European harmonization and standardization relative tonational regulation and standardization; a neglect of the problems of certification and testing; the incapacity to solve the third country problem; implementation problems in Member States; a lack of political interest by the Ministers4.
Initiated in 1985, the"new approach" to harmonization and standardization was an effort to accelerate the process at both the Council and the European standardization process at industry level. Also, it provides easier access to the market. The "new approach" consists of three main elements: preventing new technical barriers on the basis of the'mutual information directive' then (83/189/EEC), recourse to the principle of 'reference to standards' in directives, ex Art. 100, EEC (now Art.114 TFEU); a general promotion of European standardization in various ways, as well as specific promotion of the activities of CEN (European Committee of Standartisation), CENELEC (European Standardization Committeefor Electrical Products) and CEPT (the European Committee of PTTs).How is this accomplished? The Single European Actclarifies four principles which have applied since the adoption of the 'new approach' (in May 1985):
- harmonization of legislation is restricted to the adoption the directives based on Art.100 EEC (now Art.114 TFEU)of the essential safety requirements with which the products on the market must satisfy in order to qualify for free movement in the EU;
- the competent standardization organisations have to formulate the technical specifications which industry needs to produce and market productscomplying with the basic requirements of the directives;
- the technical specification is not compulsory, but isexpressed in voluntary (European) standards;
- Governments have to presume that the products manufactured in accordance with the European standards comply with the 'fundamental requirements' provided by the directive. This presumption is a guarantee for business free market access.
Therefore the foremost benefits of the 'new approach' are large-scale coherence between the legal and policy systems to exclude technical problems, and additionally the enhanced communication between European standardization and European harmonization of technical rules. This new approach should be considered as an important effort to attain consistency by dint of merging complete harmonization on issues (safety, etc.) with a versatile approach the towards respective means (standardization). Moreover, it develops the facilities of information interchange so as to reform the technical draft-laws and national draft-standards into European norms before officially coming into force.
Time has proved that new approach really worked. After 1992, years 95% of internal market harmonization had been completed5. In a way, the new approach had two main consequences: it raised the prominence of standardization bodies and opened the door to "soft law" approaches to harmonization.
Harmonisation and the role of soft law
The "soft law" is a very general term, and reflects a variety of processes which do not have formally binding normative content. For instance, they lack features such as obligation, uniformity, justiciabil-ity, sanctions, and/or an enforcement staff.
In the past few years, a lot of research has been conducted in the field of soft law. According to the latest research, objections to the use of soft law include:
- It lacks the clarity and precision needed to provide predictability and a reliableframe work for action;
-The EU treaties include hard provisions that enshrine market principles and the secan only be offset if equally hard provisions are added to promote social objectives;
- Soft law cannot forestall races to the bottom in social policy within the EU;
- Soft law cannot really have any effect but it is a covert tactic to enlarge the Union's legislative hard law competence;
- Soft law is a device that is used to have an effect but it by-passes normal systems of accountability;
-Soft law undermines EU legitimacy because it creates expectations but cannotbring about change6.
Despite these weaknesses, "soft law" also has advantages over "hard law" such as: hard law tends toward uniformity of treatment while many current issues demand tolerance for significant diversity among Member States/ Hard law presupposes
4 Pelkmans, J. (1987) 'The new approach to technical harmonization and standartisation', Journal of Common Market Studies, Vol. XXV, №3:pp.252-253
5 Chalmers, D. (2010) European Union Law: cases and materials, 2nd edition, Cambridge University Press, p.21
6 For these and other critiques, see, e.g: Klabbers (1998); Joerges and Rodl (2004); Chalmers and Lodge (2003); and S Smismans, "EU Employment Policy: Decentralisation or Centralisation through the Open Method of Coordination?" (2004) EUI Working Paper LAW No. 204/01
a fixed condition based on prior knowledge while situations of uncertainty may demand constant experimentation and adjustment. Hard law is very difficult to change yet in many cases frequent change of norms may be essential to achieve optimal results. In a way, "soft law" has always played a role in European integration.
It is clear the overview above that soft law has both important advantages and disadvantages compared to hard law. The best solution, therefore, probably does not the choice of one of the other, but in the development of an approach that effecting combines hard and soft law elements. In this mode, David M. Trubek, Patrick Cottrell, and Mark Nance examine "hybrid" constellations in which both hard and soft processes operate in the same domain and affect the same actors7.
In addition, each member-state has to decide how it will harmonise the legislation, ranging from direct references to EU standards in national law and regulation to much more tailored approaches to adopting harmonised requirements.
Reception of harmonisation legislation in the EU member-states
There are the different available mechanisms to give effect to EU harmonized provisions in national law, such as direct effect, indirect effect, and centralized enforcement.
The principles governing the reception of EU law in in the Member States evidence the uniqueness of the EU as a legal regime. Harmonisation provisions in Regulations are directly applicable, which means that they become national law upon their entry into force. Harmonisation provisions in directives need to be implemented. Directivesestablish a common aim for all member states, but leave it to national authorities to decide on the form and method of achieving it. Normally, member states are given one-to-two years to implement a directive. However, unimplemented Directives can still have legal effect if their provisions are directly effective (which allows parties to rely on them in Court proceedings vis-a-vis the State)8 or when they steer the interpretation of national laws on the same topic (indirect effect)9. Under Centralised en for cement the Commission may startinfringement proceeding which can result in fines imposed on the infringing MS10 by the European Court of Justice11.
Conclusion
The study of long-term experiences with harmonization in the EU legislation is a great opportunity to apply the positive aspects of this experience and avoid mistakes.
Therefore, we should emphasize three positive points that make the EU law making effective and can be useful for other countries that face the prospect of legal integration, such as the Republic of the Kazakhstan.
1. Advanced institutional design. Each institution carries its own special role in the development and adoption of harmonization legislation in the EU.In this context, it is especially important to recall the plan to create a Parliament of EurAsEC by 2015. Serious attention must be paid to the role this Parliament will play in EurAsEC, and its impact on harmonisation. For example, in EU the European Parliament is not just an advisory body to the law-making processes, and it plays a significantrole in the legislative process in the EU.
2. The EU flexible approach relies on input from a broad range of expertise and scope for combining hard and soft laws. The new approach is a serious attempt to achieve coherence by combining total harmonisation of the objectives at issue (safety, etc.) with flexibility towards the means (standartisation, soft law). It is an instructive model for harmonisation in EurAsEC and the CU. It would be expedient to solve common serious issues (such as issues of employment) in EurAsEC by using the soft law. The EU has created the European Employment Strategy (EES), a set of non-binding guidelines designed to govern the reform of national laws, policies, and institutions. The EES includes a complex system of periodic reporting, indicators, and multilateral surveillance, as well as mechanisms for benchmarking, peer review, and exchange of best practices. The EES has been a model for similar systems which now are all denominated the "Open Method of Coordination" or OMC12. The EES itself is soft law, in that the guidelines are general, they are not binding, and there is no way to mount a court challenge to any failure to follow the guidelines.
3. The range of mechanisms that increase the chance that harmonised provisions will be effectively implemented. Sometimes the process of development and adoption of laws in EurAsEC is so slow that by the time of adoption, they have become outdated. In this connection it is necessary to adopt mechanisms to speed up the reception of harmonisation legislation EU mechanisms such as direct effect, indirect effect, and centralized enforcement offer interesting examples on how this can be achieved.
So the uniqueness of the European approach to harmonization legislation in EU could be combination by European authority institutions of different competencies in law-making, executive and judicial fields.
7 David M. Trubek, Patrick Cottrell, and Mark Nance (2005) , 'Soft law', 'Hard law', and European Integration: Toward a Theory of Hybridity, Legal Studies Research Paper Series, Paper №1002, November, p.3
8 Case 41/74 Van Duyn Home Office (1974) EC 1337
9 Case 14/83 Von Colson (1984) ECR 1891
10 Chalmers, №4 above, pp. 332-349
11 Article 258 & 260 TFEU
12 David M. Trubek, №6 above
References
1. Peterson, J. &Shackleton, M. (2002) The Institutions of European Union, Oxford: Oxford University Press, p.2
2. Ruiter R. & Neuhold C. 'Why Is Fast Track the Way to Go? Justifications for Early Agreement in the Co-decision Procedure and Their Effects', European Law Journal, Vol.18, № 4: pp.536-554
3. Pelkmans, J. (1987)'The new approach to technical harmonization and standartisation', Journal of Common Market Studies, Vol. XXV, №3: pp.252-253
4. Klabbers (1998); Joerges and Rödl (2004); Chalmers and Lodge(2003); and S Smismans, "EU Employment Policy: Decentralisation or Centralisation through the OpenMethod of Coordination?" (2004) EUI Working Paper LAW No. 204/01.
5. David M.Trubek, Patrick Cottrell, and Mark Nance (2005) 'Soft law', 'Hard law', and European Integration: Toward a Theory of Hybridity, Legal Studies Research Paper Series, Paper №1002, p.3
6. Chalmers, D. (2010)European Union Law: cases and materials, 2nd edition, Cambridge University Press, pp. 285-300, pp. 332-349
7. Senden, L.(2004) Soft law in European Community law, Oxford; Portland
8. Trubek D.&Trubek L.(2005), 'Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Coordination', European Law Journal, vol.11
9. Raymund Werle (2001): Institutional aspects of standardization - jurisdictional conflicts and the choice of standardization organizations, Journal of European Public Policy, 8:3, pp. 392-410
10. David M. Trubek, Patrick Cottrell, and Mark Nance (2005) "Soft law," "Hard law," and European Integration: toward a theory of hybridity", University of Wisconsin-Madison legal studies research paper series, Paper no. 1002
11. Kaeding M. (2008) The Transposition of EU Transport Directives across Member States, EUP, pp.115-143.
Мацалада Еуропалъщ Одацтагы (ЕО) зац шыгару процестщ дайындалу жэне Y^ecmiprny ерекшел1г1 царастырылады. Атап айтцанда, автор Еуропалыщ Экономикалыщ Цауымдастыц пен Кеден Одагыныц зац шыгару ЖYйeciн Y^e^ipy мэселелерт шешу кезтде нeгiзгe алуга болатын ЕО-ныц басты Yш цагидасына тоцталады: кец квлeмдi институционалдыщ дизайн, ЕО-ныц зац шыгару ЖYйeciндeгi Yйлecmipyгe бешмделген шарттар («цатал» жэне «жецш» зацдар), кeлiciлгeн epeжeлepдiц mиiмдi тке асырылу мYмкiндiгiнiц децгешн кетеретт бipщаmаp тетттер (ттелей эсер ету, жанамалы mYpдe эсер ету, органдарды орталыщтандыру).
TYüm сездер: Yйлecmipy, зацнама, Еуропалыщ Одащ, жецы цуцыц.
В данной статье рассматриваются особенности процесса разработки и гармонизации законодательства в Европейском Союзе (ЕС). В частности, автор останавливается на трех основных положениях, которые можно позаимствовать у ЕС при гармонизации законодательства Евразийского Экономического Сообщества (ЕврАзЭС) и Таможенного Союза (ТС): расширенный институциональный дизайн; гибкие подходы к гармонизации законодательства ЕС («жесткие» и «мягкие» законы); ряд механизмов, которые повышают вероятность эффективной реализации согласованных положений (прямое воздействие, косвенное воздействие, централизация органов).
Ключевые слова: гармонизация, законодательство, Европейский Союз, мягкое право.
This article examines particular processes of development and adoption of harmonisation legislation in the European Union. In particular, the author suggests three main points that we can borrow from the EUfor the harmonization of legislation of the Eurasian Economic Community (EurAsEC) and the Customs Union (CU): advanced institutional design, a flexible approach to the harmonization of EU legislation ("hard" and "soft" law), a Range of mechanisms that increase the chance that harmonised provisions will be effectively implemented (direct effects, indirect effects, centralized bodies).
Keywords: harmonisation, legislation, European Union, soft law.
Анар Жарылкасынкызы CaF^gaH,
КР Зац шыгару институты хальщаральщ зацнама жэне салыстырмалы кдоыктану бвлiмшщ жетекшi гылыми ^ызметкер^ PhD докторы
Еуропалык Одак;таFы заннаманы эзiрлеу жэне Yйлестiрудi кабылдау
Сагидан Анар Жарылкасынкызы,
ведущий научный сотрудник отдела международного законодательства и сравнительного правоведения Института законодательства РК, доктор PhD
Разработка и принятие гармонизации законодательства в Европейском Союзе
Sagidan Anar,
Leading research fellow at the Department of International and Comparative Law of the Institute of the legislation of The Republic of Kazakhstan, PhD
The development and adoption of harmonisation legislation in the European Union
