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Workshop on Different Approaches to Legal Harmonisation:The ways and means to harmonise the national legal
framework with the requirements of the acquis
Example of a country that joined the European Union in 2004: Hungary
dr. Anita Németh
Attorney at law, Lecturer at the Faculty of Law of
Eötvös Loránd University (ELTE), Budapest, Hungary
(former Head of the Department of the European Union Affaires
at the Ministry of Justice in Hungary)
Skopje, 25 June, 2015
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Main topics
I. Some general preliminary remarks
II. The four stages of the process and progress of the legal harmonisation in Hungary (and the possible lessons for a current candidate country)
III. Institutional framework and capacity in Hungary
IV. Other practical issues
V. National interests in the harmonisation and accession process
VI. Concluding remarks
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I. Some general preliminary remarks
• Historical importance of the accession (in Hungary) and also great impact on the legal system („legal revolution” serving the change of regime + integration objectives)
• Positive circumstances – positive general approach to the integration and accession (political parties, civils)
• General alignment in respect of the law and institutions; special alignment, special issues
• Complex task (legislation, enforcement, institutions, capacity, culture etc.)
• Differences before and after the accession
• Terminologies (approximation, harmonisation, alignment …EC/EU)
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II. The four stages of the process and progress of the legal harmonisation in Hungary
(and the possible lessons for a current candidate country)
1st stage
initial phase (1991–1994)
2nd stage establishing
phase
(1994–1998)
3rd stage intensive
phase
(1998–2003)
4th stage „ending”
phase (2003/2004)
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II. The four stages of the process and progress of the legal harmonisation in Hungary
(and the possible lessons for a current candidate country)
Long process before the accession (1991–2004); can be shorter – some factors:
• Political, economic, social circumstances (EU, MS, candidate countries)
• Number of candidate countries at the same time
• Previous experiences, impacts, models
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1st stage – initial phase (1991–1994)
1991–1994: Conclusion of the Europe Agreement – Submission of the application for accession
• Legal basis: Europe Agreement (Association Agreement; EA)
• Special obligations (with deadlines) of the EA and also more general legal requirements necessary for the accession (ten-year transitional period)
• Article 67 of the EA: general, framework requirement of the approximation of the country’s present and future legislation to the Community legislation
- General coverage; „as far as possible”; no details
- Approximation: permanent; unilateral and one-way; full scope; gradual; in line with the national interests (priorities, partial or full)
• Role of the institutions of the EA (Association Council, Committee, sub-committees)
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1st stage – initial phase (1991–1994)
Article 67 of the Europe Agreement
The Contracting Parties acknowledged that one of the basic pre-requisites of Hungary’s economic integration into the Community is theapproximation of the country’s present and future legislation toCommunity legislation. Hungary undertook to ensure that its futurelegislation shall be compatible with Community law as far as possible.
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1st stage – initial phase (1991–1994)
• Important stage and point of reference: Copenhagen criteria (June 1993)
• Act I of 1994 on the promulgation of the EA + special provisions on the approximation of legislation – new impetus
- Compulsory integration of the aspects of the legal harmonisation into the general legislative procedure
- In the reasoning of the draft Acts: compulsory information on the question of the legal harmonisation (modification of the Act on Legislation)
• Role of the Ministry of Justice strengthened: general legal control of the drafts + special and substantial control (and opinion) on the compliance (legal harmonisation)
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1st stage – initial phase (1991–1994)
Summary of the initial phase:
• Legal harmonisation became compulsory (EA)
• Basic preparations
• Establishing the very basic „tools” (harmonisation reasoning, special substantial control) and start of defining the priorities
• Special role, control of the Ministry of Justice in legal harmonisation matters (beyond the general responsibility in legal matters) – legal traditions, legal harmonisation is a key legal issue, responsible persons
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1st stage – initial phase (1991–1994)
Lessons:
• Initial and establishing phases can come (be planed) together (see later)
• Initial steps, tools, methods etc. can be determinative (but always can be changed)
• Balance between the traditions and the „new approach” to be prepared for the accession; real integration of the matters of legal harmonisation into the national legal system
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2nd stage – establishing phase (1994–1998)
1994–1998: Submission of the application for accession – Start of the Accession Negotiations
• Assistance from the EU: Pre-accession strategy (1994), White Paper (1995; to enhance and orient the legal harmonisation activity of the associated countries in the field of integration into the internal market) + PHARE technical and financial assistance
• Start of the special, systematic planning, programming of the legal harmonisation work: legal harmonisation programmes (1995–)
- publicised, (public) Government Resolutions
- 5-year programme, than annual programmes
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2nd stage – establishing phase (1994–1998)
• Government Resolution No. 2004/1995. (I. 20.) Korm. on the taskschedule of law harmonisation preparing the accession to the EU;
• Government Resolution No. 2174/1995. (VI. 15.) Korm. on the five-year programme of law harmonisation;
• Government Resolution No. 2403/1995. (XII. 12.) Korm. on theimplementation of tasks related to the White Paper concerning ourintegration into the internal market;
• Government Resolution No. 2282/1996. (X. 25.) Korm. on the amendment and consolidation of law harmonisation and internal market integration programmes, preparing accession to the EU;
• Government Resolution No. 2212/1998. (IX. 30.) Korm. on the programme of law harmonisation for the period before 31 December 2001 and the tasks relating to the implementation of the programme
• Etc. (1999–2004 annual programmes)
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2nd stage – establishing phase (1994–1998)
General structure of the legal harmonisation programme
Year (first and second half) and the specific field of law
EC/EUlegislation
Hungarian legislation and the task (what and how -new, modification,repeal)
Responsible ministry
National Programme(included or not) - later
Others(partial or full harmonisation;only by the accession; or entry into force only by the accession etc.)
Directive …
Directive …
Regulation (!) …
Resolution(!) …
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2nd stage – establishing phase (1994–1998)
• Incorporation of the legal harmonisation programmes into the half-year working plans and general legislative programmes of the Government
• Implementation of the programmes – monitoring by the Ministry of Justice; and the necessary adjustments
• Information on the degree and extent of the approximation – not only in case of Acts but all pieces (levels) of legislation (Government Resolution) – also in case of Ministerial Decrees
• Legal harmonisation clause – formal codification requirement in case of harmonised pieces of legislation
- Indication of the harmonisation results – information for the practitioners, appropriate interpretation (not equal with the interpretation requirements after the accession), more efficient monitoring, control
- Clause: generally in the final provisions or also possible in the annex
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2nd stage – establishing phase (1994–1998)
Legal harmonisation clause (variations)
• “This Act/Decree, in compliance with Article 3 of Act I of 1994 promulgating the
Europe Agreement establishing an association between the European Communities andtheir Member States, of the one part, and the Republic of Hungary, of the other part,
signed in Brussels on 16 December 1991, contains provisionscompatible/partially compatible with the following acts of theEuropean Communities:
a) …;
b) …;”
• “This Act/Decree (…) contains provisions compatible/partiallycompatible with … (legislative act) of the European Communities.”
• “This Act/Decree (…) contains provisions compatible/partiallycompatible with the legislative acts of the European Communitieslisted in Annex ….”
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2nd stage – establishing phase (1994–1998)
Summary of the establishing phase:
• Dual purpose of the legal harmonisation work (association and accession)
• Establishment of the system for the „accession-driven” harmonisation works
• Determining tool: annual programmes (taking into account of the quantity and continuous changes of the acquis and the national interests) – planning, setting priorities, gradual approximation, transparency, controlled implementation
• Legal harmonisation clause can enhance the better understanding and transparency of the legal harmonisation
• Priorities and assistance of the EU – see EA and White Paper: internal market integration + competition + right of establishment, intellectual property etc.
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2nd stage – establishing phase (1994–1998)
Lessons:
• Challenges in quantity, in timing, in priorities, in consistency –establishment of a national system for planning, programming, monitoring
• Effective integration of the legal harmonisation work into the general legislative procedure, requirements with the necessary differences (plans, reasoning, substantial monitoring and control, legal harmonisation clause; and institutional framework)
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3rd stage – intensive phase (1998–2003)
1998–2003: Start of the Accession Negotiations – Signing the Accession Treaty
• In parallel: intensive, accelerated works on law harmonisation and the accession negotiations – special interactions!
• Negotiations: screening exercise (help and external/EU control on law harmonisation and institutional capacity) + substantial negotiations / Position Papers (identifying the derogations and the list of the technical adaptations/not only „technical”)
• National interests: room for manoeuvre is narrower in the law harmonisation process; requirement of full alignment + derogations(measuring the impacts and conditions of the fulfilment of the EU requirements; difficult conditions to be fulfilled)
• Accession partnership (priorities and financial resources by the EU for Hungary) + Position Papers (commitments, derogations by Hungary –also monitored by the EU)
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3rd stage – intensive phase (1998–2003)
• Intensive monitoring by the EU on the preparation exercise
• Extended monitoring: not only on the progress in law harmonisation, but also in respect of the effective law enforcement and expected efficient functioning of the institutions (implementation of the acquis)
• Hungary: (annual) National Programme for the adoption of the acquis(NPAA), European Commission: Regular Report(s)
• NPAA included the simplified legal harmonisation programme –consistency
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3rd stage – intensive phase (1998–2003)
New (and old) challenges:
• Delays in legal harmonisation and preparations in certain fields and the moving target effects; solutions
• Certain problems due to the outsider’s alignment, mainly in the field of competition – Decision of the Constitutional Court No. 30/1998. (VI. 25.) AB – important findings as to the legal harmonisation before the accession:
- Constitutional requirement that Hungarian authorities may not apply directly Community law criteria (it is not permitted/not constitutional to apply directly Community acts before the accession, nor in the form of interpretative guidelines) + only referring rules (to the Community acts and provisions) are also problematic
• Special alignment in respect of EU acts directly applicable (e.g. Regulations) – deregulation by the time of accession
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3rd stage – intensive phase (1998–2003)
Communication of the Minister of Justice 8002/1999. (IK.10.) IM on the management of matters relating to law harmonization (attached)
Contents of this published guideline:
1. The purpose and subject of the Communication
2. Law harmonisation in the phase of association and in the process of accession to the EU
3. Programming law harmonisation
4. Order of responsibility of law harmonisation
5. Certain theoretical and methodological aspects of law harmonisation
6. Formal requirements
7. Sources of acquaintance with Community law
8. Translation of Community law into Hungarian
Annexes
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3rd stage – intensive phase (1998–2003)
General structure of the concordance tables / Annex 3
Community Legislation (Title)
Community legislation (Article, paragraph, subpar.)
Description National legislation
piece of legislation (number, title)
Article, par.
date of entry into force
Responsible authority
status of the legislation
compatibility
remarks
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3rd stage – intensive phase (1998–2003)
Certain horizontal issues to be prepared or solved (2000/2001) + Government Resolution No. 2319/2000 (XII. 21.) Korm.
• Basic principles in the relationship of the EC law and Member States law
• General questions on the relationship between the EC law and national Constitution, amendment to the Hungarian Constitution, Treaty of Accession and the promulgating Act
• General principles of the EC law, their impact on the national legal systems
• The role of the Hungarian Constitutional Court, the fundamental rights jurisdiction
• The impact of the accession on the jurisdiction of courts
• Adaptations of the Hungarian public law system to the decision-making process of the EU
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3rd stage – intensive phase (1998–2003)
• The impact of the accession on the local authorities
• Other relevant questions (deregulation; international agreements and accession; translation of acquis into Hungarian; legal practice of the European Court of Justice on Accession Treaties; responsibility of the MS for infringements of EC law)
↓
• Right sequences of certain public law steps, e.g.:
closing of the negotiations – adoption of the amendment to the Constitution (December 2002, Act LXI of 2002) – creation of the Accession Treaty – referendum – authorisation from the Parliament to sign the Treaty – signing the Treaty – ratification of the Treaty by the Parliament – adoption and entry into force of the Act promulgating the Accession Treaty
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3rd stage – intensive phase (1998–2003)
Summary of the intensive phase:
• The most difficult and important phase
• Intensive preparations and negotiations
• Substantial works and their co-ordination, administration
• Important phase for determining and representing the national interests
• Intensive outside/EU monitoring
• Start of the preparations for certain horizontal issues
• New problems, challenges
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3rd stage – intensive phase (1998–2003)
Lessons:
• Progress in legal harmonisation can accelerate the accession process
• Different kinds of works, difficulties at the same time
• Solutions for the outsider’s alignment and possible delays
• Avoid over-administration !
• Good structures, co-ordination, central administrative capacity and staff, team needed to get through this difficult and complex process (see later)
• Role of the Negotiating Delegation (chief Negotiator and the Team, EU Mission in Brussels)
• Co-operations (external, internal)
• Preparations in time for the horizontal issues
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4th stage – „ending” phase (2003/2004)
2003/2004: Signing the Accession Treaty – Entry into force of the Treaty
• „Completion” of the legal harmonisation process
• Interim procedure („active observer” – opinion on the proposals of the EU acts, taking part in the decision-making procedure without the right to vote)
• Final and overall internal screening and modifications:
- „Negative” harmonisation on the basis of the four freedoms of EC legislation (internal market) + Act XIV of 2004 on the mutual recognition related to the free movement of goods
- Deregulation
- Necessary revision of the international agreements with regard to the accession
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4th stage – „ending” phase (2003/2004)
• Switch to the membership – certain further procedural / public law questions:
- Governmental co-ordination in order to take part as MS in the decision-making procedure of the EU
- Co-operation between the Government and the Hungarian Parliament in the EU affaires (Act LIII of 2004)
- Tasks related to the representation of Hungary before the Court of Justice of the EU (infringement and preliminary ruling procedure and modifications of the procedural Acts)
- Legal status of the Hungarian MPs of the European Parliament
• „New approach” of the legal harmonisation after the accession (Government Resolution No. 1036/2004. (IV. 27.) Korm. )
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4th stage – „ending” phase (2003/2004)
Preparations for a different legal harmonisation work after the accession:
• Differences in planning, monitoring
• Proposals for legal harmonisation on the basis of separate legal acts
• Legal harmonisation database
• Correlation table
• Notification
• Differently formulated legal harmonisation clause (purpose and formulation)
• Methodological support – new, detailed guideline of the Minister of Justice 7001/2005. (IK. 8.) IM on the legislation with the purpose of legal harmonisation (repealed in 2012)
• Others
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4th stage – „ending” phase (2003/2004)
Summary of the „ending” phase:
• Final and also complex works
• Preparations for functioning and operating as MS
• Also as an interim phase and „ready position”
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4th stage – „ending” phase (2003/2004)
Lessons:
• Different kinds of works, more in the field of public law
• Good structure and procedure in the Government can enhance the determination and representation of the national interests also after the accession
• Certain legal harmonisation „tools” can be used (more systematically) before the accession: database, concordance/correlation tables, more detailed methodological support
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III. Institutional framework and capacity in Hungary(before accession)
1. Institutional framework – legal harmonisation (role of the Ministry of Justice)
2. Institutional framework – general co-ordination of the integration and accession preparations
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III.1. Institutional framework – legal harmonisation
• Model: decentralisation (tasks of the ministries/ministers) + strong central co-ordination
• This model was based on the traditional Hungarian approach of the preparation of the legislation
• Question: Where to put the central co-ordination? Where is the legal centre? → Ministry of Justice (in Hungary)
• Speciality: the central legal co-ordination was at the Ministry of Justice and not at the general co-ordinator
- Negative side: certain conflicts, questions of competences
- Positive side: very strong and professional legal team, competence-conflicts result in certain positive competition, good and strong co-operation
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III.1. Institutional framework – legal harmonisation
Suggestion:
• Organic integration of the legal harmonisation exercise in the traditional administrative structure (if it is efficient)
• One centre of horizontal co-ordination, included the legal – but have a strong legal and EU law specialised expert team
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III.1. Institutional framework – legal harmonisation(role of the Ministry of Justice)
Government
Ministry Ministry Ministry of Justice
Ministry of Justice
(central coordinator and monitor of the legal
harmonisation)
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III.1. Institutional framework – legal harmonisation(Ministry of Justice)
Ministry of Justice:
• Two experts at the Department for Civil and Economic Law Codification (1991) + Deputy Secretary of State responsible for the legal harmonisation
• Establishment of the European Community Law Department (1992/1993) and the staff was increased gradually and continuously
• Later, the Department had two units: Division for Codification, Division for Co-ordination (+linguist-lawyers)
• Reorganisation: Department of European Union Affaires with four units: Division for Codification, Division for Co-ordination of the Legal Harmonisation and Translation, Division for Co-ordination of the European Matters, Division for Matters of the European Court of Justice (2004/2005)
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III.1. Institutional framework – legal harmonisation(Ministry of Justice)
Two experts at the Department for
Civil and Economic Law Codification
European Community Law
Department
Department with 2
Divisions
Department with 4
Divisions(25-30
experts)
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III.1. Institutional framework – legal harmonisation(Ministry of Justice)
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Department of European Union Affaires (in 2004/2005)
Division for Codification
Division for Co-ordination of the
Legal Harmonisation and Translation
Division for Co-ordination of the
European Matters
Division for Matters of the
European Court of Justice
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III.2. Institutional framework – general co-ordination of the integration and accession preparations
• Model: decentralisation (tasks of the ministries/ministers; ministerial responsibility) + strong central, horizontal co-ordination
• Question: Where to put the central co-ordination? This changed several times (political and personal issue):
• Ministry of Foreign Affaires / State Secretariat for Integration (1996-)+ Inter-ministerial Committee of European Integration → Minister without portfolio responsible for European Affaires + Office for European Affaires in the Prime Minister’s Office (2004/2005) → Ministry of Foreign Affaires + Office for European Affaires (2006) → …
• Integration Cabinet (1994–1998; 2002–2006)
• Decisions by the Government
• Co-operations with the Hungarian Parliament
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III.2. Institutional framework – general co-ordination of the integration and accession preparations
Government
Ministry MinistryMinistry of Foreign
Affaires
Ministry of Foreign Affaires –
Inter-ministerial Committee / subcommittees
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III.2. Institutional framework – general co-ordination of the integration and accession preparations
Government
(State Secretaries’ meeting)
Integration Cabinet
Inter-ministerial Committee (with subcommittees) co-ordinated by the Ministry of Foreign Affaires
Ministries
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IV. Other practical issues
• „Special language” of the EU law
• Another real challenge: translation of the acquis into the language of the candidate country (also constitutional question) – co-operation with the EU
• Not only a traditional translation task but also the creation of the adequate legal language
• Difficulties in quantity, time, quality
• The Hungarian solution: The task of translation and revision was outsourced, but the “final quality” and legal, terminological control on these translations was done by the Unit for Co-ordination of the Translation (linguist-lawyers) of the European Community Law Department.
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V. National interests in the harmonisation and accession process
• The level and extent of the national ambitions
• Do we know our national interest (and the interest of MS)?
• Efficient representation of the national interests – institutional structure, national co-ordination, real involvement of the interested
• Different possibilities in the different phases of the preparations, integration (see above)
• Different possibilities in the different special fields of law (examples) –profound knowledge of the EU law
• National and European values can live together (but also sensitive fields)
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VI. Concluding remarks
• Great (legal) challenge
• Lessons to be heard but also national specialities, traditions, solutions
• Legal harmonisation is successful if the country can join the EU – but it is only one factor
• Not only on papers but also in the practice – it takes time to accept and adopt the changes, changes required in the people
• External EU matters to be transformed as internal matters
• Can be done and easier in a positive political, social environment
• Sometimes a new MS performs better (for some time)
• Historical process and momentum
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Thank you for your attention!
Annex: Communication of the Minister of Justice8002/1999. (IK.10.) IM
on the management of matters relating to law harmonisation(not official translation)
dr. Anita Németh
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