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4[1].ENG-EU Integration-Principles of Law Harmonisation and Approximation

4[1].ENG-EU Integration-Principles of Law Harmonisation and Approximation

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EU law principles
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07/18/2012

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Principles of law harmonisation and approximation

Eugene Stuart

Scope • Differences between HARMONISATION and APPROXIMATION ? • Different types of harmonisation. • New approaches to harmonisation • Forbidden Harmonisation • “Stuart theory” of harmonisation and approximation • Some of the issues in harmonisation and approximation .

94 EC) dealing with the elimination of barriers to the functioning of the internal market arising from Member State laws. . in relation to indirect taxes. specifically in paragraphs (4) and (5) of Article 100a EEC (now Art. regulations or decisions. 95(4) and (5) EC). • “harmonization” was introduced by the Single Act. • “approximation” was used in Article 100 (now Art.HARMONISATION VS. APPROXIMATION • “harmonization” originally only in Article 99 EEC.

Approximation (2) • In Article 95(1) EC “harmonization” refers to EU law “measures for the approximation of the provisions laid down by law. .Harmonisation vs. regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”. where the term itself is not explicitly used. “harmonization” refers to EU “directives for the approximation of such laws. • In Article 94 EC. regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market”.

• Approximation and Harmonization in fact also encompass unification of national laws. • Harmonization is mainly used in connection with directives which. • “Convergence” is often also used in a general way • Pre-accession context . .it has been repeatedly clarified that approximation includes the concept of effective enforcement.Harmonisation vs. unlike regulations. Approximation (3) • Approximation and Harmonization of laws are used in the EC Treaty as synonyms. are not intended to unify national laws.

• Opened the possibility for Direct Effect of Directives • Differentiation and flexibility since enlargements • White Paper of 1985 on the completion of the internal market.METHODS OF HARMONISATION • Harmonization of national laws through Community legislation laid down in directives – the most common means • In early years. uniformity was the prevailing approach. • New approach results in a number of different harmonisation methods .

partial harmonisation. rather than of substantive rules. allowing Member States to choose between alternative methods of harmonization. minimum harmonisation. and mutual recognition of controls. rules which only applied for certain cross-border transactions). some directives allowing the Member States to exercise the option (opting-out). optional harmonisation. regulating some aspects of the subject matter only (e.Methods of Harmonisation (2) • • • • • • total harmonisation. alternative harmonisation. allowing producers to apply national norms or Community norms. allowing Member States to provide for more stringent rules. allowing no derogation in the preempted area except for safeguard measures or to the extent permitted in the directive.g. .

CONSUMER LAW • Mixed Approach • Framework Legislation + Targeted Directives • Emphasis on involvement of key actors in the process .

and on common (but not binding) standards in areas not covered by Community legislation. after consulting the European Securities Committee (ECS) and taking the advice of the European Regulators’ Committee (“CESR”) (which must prepare its advice in consultation with market participants. the European Regulators’ Committee works on joint interpretation recommendations. and if necessary takes legal action before the ECJ. • • . Level 3. consistent guidelines to facilitate day-to-day implementation of Community rules in the respective Member States. Level 4.FINANCIAL SERVICES The Lamfalussy process • • Level 1 framework legislation is adopted by the Community institutions in conformity with the codecision procedure. Level 2 the Commission adopts directives or regulations laying down technical details to implement Level 1 legislation. the Commission checks compliance of Member States laws with Community legislation. end-users and consumers) and under the control of the European Parliament as to whether the proposed measures do not go beyond the level of mere implementation.

Reflections on Lamfalussy • Easier to adopt Level 1 framework laws • Speeds up detailed rule making in Level 2 • Improved best practice role for national regulators • Provides for extensive consultation with all stakeholders .

152(4) EC .” • “may not entail harmonisation of Member States’ laws and regulations.FORBIDDEN HARMONISATION • • • • • Education and Training Culture Public Health A sovereignty issue EU may only take “supporting.” • Currently. coordinating or complementary action. prohibitions of this kind are found in Articles 149(4). 150(4). 151(4).

harmonisation of laws. whereas the actual choice of effective policies should remain a national responsibility. . 129). is replaced by coordination of policies • Implies that Member State governments should agree to define certain policy purposes or problems as matters of “common concern”. Social and Economic policies • In areas where policy takes over from law.OPEN METHOD OF COORDINATION • Employment. • Harmonisation of Member State laws and regulations is explicitly excluded (Art. as an instrument.

On this basis. approximation can be viewed as the second and final (or continuing) phase where: – (a) related policies (including interpretation and how the law is applied) and – (b) effective and verifiable enforcement can be added. • STUART THEORY: Useful to regard harmonisation as the process of getting the national law right vs. .ISSUES IN HARMONISATION/ APPROXIMATION EU integration and pre-accession processes. This is usually the first step and this can be complex and take some time. EU legislation.

Careful examination of the existing law and situation 5. Careful and accurate interpretation of the instrument to be approximated 3. Getting behind exceptions and derogations 4. Inclusion of necessary national modifications . Partial Approximation is not allowed 2.PRINCIPLES 1.

Enforcement and Strategic Planning 12. Impact Assessment 7. Avoiding CUT & PAST harmonisation 10. Adequate consideration of institutional capacity issues 11. Consultation 8.Principles (2) 6. Anticipate transparency and EU review . Benchmarking 9.

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