This article covers the topic of a high importance as a number of third countries for a range of reasons make efforts to approximate their national legislation to that of the European Union (EU). Yet there is a significant practical experience of legal approximation received during the last accessions to the EU, we may observe a visible scarcity of theoretic insights into the problem of the universal methodology of legal approximation. In most of the cases the elaboration of methodology is left to experts working with concrete states and the methodology is therefore adapted to each specific case and need. In our view, this makes the knowledge in the issue quite fragmented. We hold that there is a number of common elements which could be derived to form a universal methodology to be applied by all countries wishing to embark upon the legal approximation process. Therefore the absence of the universal methodology of legal approximation process appears to be a shortcoming in this evolving field of law. To the extent possible this article tries, at least partially, to ill up this gap.

It is important to clarify that the research will focus particularly on the transposition of the acquis into the national law and issues related to it (e.g. institutional aspects, legal drafting), which is one out of three elements of the legal approximation trichotomy.[1] Without diminishing the value of the two other aspects, namely implementation and enforcement, due to the nature of this study and space constraints, they will be dealt with where necessary only to clarify the transposition itself as long as three elements are inherently bound. Therefore legal approximation process for the purposes of this article is understood in a more narrow sense than it actually is.

Framework of legal approximation

Notion of legal approximation and its scope

There is no universally agreed definition of legal approximation. However, as long as entering into terminological debates is way outside the scope of this article, it is suggested for the purposes of this study as outlined in the introduction to stick to the definition of legal approximation as a process of drafting and adopting legal measures aimed at a gradual accomplishment of the consistency between the legislation of a third country with the acquis of the EU.

Here it is also necessary to clarify the term acquis. This is not an easy task, either, as it is deemed a “term without permanent meaning” or “a term without tangible content”.[2] Moreover the word has disappeared from the founding EU Treaties and was left only when referred to the provisions related to the Schengen Agreements. But it is still a widely used term in the field of legal approximation and therefore it is accordingly used in this paper. Arguably it is the most comprehensive term including all aspects of the EU law and consequently it vaguely corresponds to the totality of the EU law and will be understood in these terms in the current research.

For the legal approximation process it is important to understand some specific characteristics of this process. It is a non-reciprocal process as only one party to it is approximating its legislation to that of the other. Besides, acquis is a given law, or sometimes called lex data[3] ‑ there is no way to influence on the adoption of the provisions of the acquis on the one hand, and there is no or limited influence on what parts of the acquis to approximate with. In case of the candidate and acceding countries, the scope of the approximation is generally predefined by the regulatory extent of the EU law and cannot be negotiated.[4] The only things left to define relatively freely are the technical issues like time-schedule, means, methods, techniques, forms of transposition measures and transitional periods.[5] This is different in the countries that are not associated with the EU and sometimes in those that are associated. Such countries are more flexible in their choice of the scope of approximation due to the fact that there is no obligation to achieve a certain result. In this respect it is important to distinguish legal effect of different patterns of legal approximation. Basically, the pattern is as follows: the deeper the legal connection to the EU, the lesser there is freedom to define the scope of legal approximation, and vice versa, the lesser there is legal connection, the more there is freedom to decide. But in the end, this freedom is still limited by the result that is sought to be achieved, including the depth of the relations with the EU aimed at.

The scope of legal approximation is initially delimited by bilateral agreements with the EU, like Europe Agreements (EAs), Stabilization and Association Agreements (SAAs) and Partnership and Cooperation Agreements (PCAs). More generally, the scope of the acquis to be approximated with can be divided into the ‘pre-accession Union acquis’ and ‘post-accession Union acquis’, as some of the acquis becomes binding and is being implemented only after the accession to the EU.[6] In fact there are certain areas of the EU law that are either impossible to approximate with and/or there is simply no reason to introduce certain areas of law unless a country becomes an actual Member State as some acquis is drafted particularly for the countries with the status of member states (e.g. aspects of Common Agricultural Policy).

The scope of legal approximation is also determined by the specific needs of each country, in other words “in the light of its economic, social and political realities and of the work it has achieved so far”.[7] Such needs could be, for instance, giving industry the time for the adaptation to new developments in the policy (e.g. opening of public procurement to foreign companies).[8] It might also prove to be not feasible due to the lack of administrative capacities, financial or human resource, and therefore the sequence of approximation works can be differentiated.[9] Therefore the process of legal approximation is necessarily gradual.

Certain parts of the acquis concern constitutional norms, which is particularly important in the process of legal approximation of the countries aiming at joining the EU which have to introduce necessary amendments into national constitutions.[10]

Finally, it is always necessary to keep in mind that acquis is “constantly evolving or permanently developing” and is a “moving target”.[11] It means that the EU law is not static and never stops developing. It must be always closely followed, including the case-law of the Court of Justice of the EU (CJEU). Failure to do so will inevitably constitute approximation mistakes.

Programming and institutional setup

Approximation of national legislation to the acquis is a demanding process and therefore should be carefully planned and monitored.[12] In this respect programming is particularly important which basically means the establishment of programmes and projects of legal approximation. It includes the so-called national programmes of integration or approximation, implementation plans, etc. These documents envisage plans for legal approximation, its details, forms of national legislation to be adopted, timetables of approximation activities, degree of approximation that is expected, costs and decisions on responsible institutions. Programming is done in order to efficiently address the obligations stemming from the agreements concluded by third countries with the EU and plays a role both of guidelines for legal approximation and of a roadmap for the governments.[13]

A tool helping to ensure careful and efficient programming is the so-called “screening”. It means the examination and the presentation of the acquis to figure out, on the one hand, by a third country what it is expected to approximate with, and, on the other hand, for the EU to assess the degree of current compliance of the country with the acquis.[14]

In the case of potential candidate countries, candidate countries and acceding states, the progress reached during the approximation process as well as the results of the approximation are being checked by the European Commission (Commission) on a yearly basis. As a result of such monitoring the Commission prepares reports on the preparedness of countries to take upon the obligations steaming from the membership in the EU.[15]

Approximation works would not be possible without corresponding institutional setup. Generally two kinds of institutional mechanisms of legal approximation exist: coordination mechanisms consisting of the representatives of the EU and third countries, and coordination mechanisms within third countries.[16] The former are institutions within bilateral agreements: those are usually association councils on the executive level and parliamentary association committees on the parliamentary level which are usually mechanisms of political dialogue.

On the contrary, the institutional set up covering legal approximation within third countries and, more broadly the integration process with the EU, deals directly with the approximation works and differs considerably from country to country.[17] However, generally speaking, three levels of institutions can be distinguished:

1.    high-level (a separate ministry or an institution under prime-minister);

2.    medium-level (coordinators, units in line ministries, committees in the parliaments);

3.    lower-level working groups. [18]

Among those there are submitting bodies on the medium-level that, assisted by working groups, prepare and draft proposals on legal approximation, either in one’s own right or on the requirement of another institution. There should also be a body to which the draft is then submitted and which checks it in terms  of consistency with the acquis. After assessment the draft can be sent back with suggestions for improvement. The overall approximation process is overseen by the high-level institution. Apart from a single high-level institution as the main coordinator there can be line medium-level coordinators (advisors) set up in each relevant ministry with responsibilities for the functioning of the ministries in the process of the legal approximation and communicating with the main high-level coordinator. This provides an “early warning” system which could efficiently detect difficulties in the process and report to the government for  solving problems in a fast and efficient manner. The whole system should be setup in a way to have a possibility to obtain a third party assessment of the drafts and to consult interested parties.

Theoretical methodology of legal approximation

This chapter tries to establish a general typology of tools of legal approximation to be used by states embarking upon legal approximation process. Different terminology is used in the literature to describe this or that action related to legal approximation,[19] but for the purposes of this article the typology is divided into the approximation means, methods and techniques and each of them will be described in turn in more details. However it is important to note beforehand that the given typology does not exclude the possibility to supplement and to use cumulatively the tools within the groups.

Means

De-regulation

This means consists in repealing national rules either due to the fact that they are no longer needed or due to their inconsistency with the acquis. De-regulation is widely used within the EU itself, for instance in such sectors as substantive freedoms of free movement as well as in safety of goods.[20] At the same time this means finds itself well in the approximation process of third countries to the acquis especially when the process of liberalisation is concerned. De-regulation has a particular role right after accession to the EU when all the legislation approximating with the EU regulations would have to be repealed due to the direct effect of regulations.

Re-regulation

This means is used when a certain area is already regulated in the national law but the regulation is outdated and needs adapting to new conditions and to the acquis. In many cases it is possible to introduce amendments into the national legislation in order to regulate certain issues in a different manner without introducing new legislation. Examples of sectors where the re-regulation means is used are competition law, public procurement and legal metrology.

Adoption of new legislation

New legislation is adopted in cases where re-regulation appears to be burdensome and/or makes legislation too complex. However the main function of this means is to cover new spheres never regulated in a relevant country. It is particularly pertinent in environmental law, consumer protection and regulation of genetically modified products. This means is also used during market liberalisation of certain ‘network industries’ in the energy market, railway transportation, telecommunication and postal services.[21]

Accession to international agreements

Many multilateral international agreements are part of the acquis and therefore are part of the legal approximation process. Hence it is reasonable to distinguish the accession to the relevant international agreements as a separate means of legal approximation which is governed by its own rules. Examples of spheres where there might be a need to adhere to an international instrument are human rights protection, environmental protection and intellectual, industrial and commercial property protection.

Standardization

As long as standardisation is an indispensable and integral part of the acquis, technical standards should be adhered to during the legal approximation process of third countries. This has become a particular task with the approximation with the “new approach” directives, which introduce a general framework of standardisation in several sectors, and with the detailed rules elaborated by the three European Standards Organisations – the European Committee for Standardization (CEN), the European Committee for Electrotechnical Standardization (CENELEC) and the European Telecommunications Standards Institute (ETSI).[22]

Methods

Re-wording (re-writing)

This approximation method allows adjusting terminology and style used in the acquis to those that are commonly used in the national legal system.[23] However this method can also be used in addressing the provisions of an EU act that are not detailed enough by elaborating on them more. By far this method is the most widely used one.

Copy-out (one-to-one approximation)

The copy-out method implies that language of an act to be approximated with is replicated. In other words the approximating measure keeps the wording of an act of the acquis. This can be made in several ways. Firstly, by means of a simple copy: the text of relevant provisions is copied into the national legislation. Also a simple reference to certain relevant provisions can be made. Such reference can be static, meaning that it refers to provisions as they stand at the moment of referral, and dynamic, which refers to provision as they stand at the moment and to their future amendments (so to say a form of a “moving target”).[24]

Gold plating

This method is used when the national legislator wishes to go further than that which is required by the provisions under approximation. Certain additional national elements can be added to the legal measure through which the approximation is carried out. Such national additions may include: extending the scope, not taking full advantage of any derogations which keep requirements to a minimum, providing sanctions, enforcement mechanisms and matters such as burden of proof which go beyond the minimum needed.[25]

Annex approximation

The annex approximation method means that an act of the acquis is simply attached to a national legal act in the form of an annex.[26] Therefore the national measure of legal approximation consists of two parts: first part is a short text making a reference to the EU act and the second part, annex, which includes the act itself. Such a method is useful for countries being in the last stages of approximation when giving legal force to EU regulations which do not have the characteristics of direct effect and applicability in the legal orders of non-member states. Putting regulations into national legal orders by means of the annex approximation method simplifies the entrance into direct effect and applicability of regulation after the accession – a country then can simply repeal the measure without any negative consequences. Moreover such method eliminates the problem of approximation mistake and prepares the country’s legal system well to accession. However this method is not recommended to countries without close accession perspective and/or on the early stages of legal approximation – it might create a clash with the national legal system as regulations might have legal notions and procedures not known to the national legal system which in its turn will make it unworkable or diminish the efficiency of its effect.

Standard practice

Standard practice is an interesting method of legal approximation proposed in the legal doctrine.[27] It is based on searching the best practice of legal approximation: several approximating measures of other states are collected and merged into a single new legal act which in the end is an established standard practice. Then out of these results another legal act is prepared which should correspond to the identified standard practice and then used as a model to which national legislation is approximated. The main risk of using such method is the inconsistencies that might result in the model created out of collected national acts.[28]

Techniques

Postponed (delayed) legal approximation

This technique of legal approximation allows to make all necessary approximation works but to envisage the entry into force of the approximated legislation or its provisions in the future on a certain date. This is particularly useful for acceding countries when certain legislation ought to take effect or is estimated to be suitable when entered into force as of the date of accession as it was discussed in the Chapter 1.

Sequenced (segmented) legal approximation

This technique is based on the principle of gradualism which means that legislation is being approximated successively and not as a bulk at the same time (see Chapter 1). It is related to the smooth adaptation of the legal system and the economic and social situation in the country to the new rules. This technique of legal approximation leads to the situation when different parts of national legislation approximated to the acquis enter into force in different periods of time.

Structured legal approximation

The technique of structured legal approximation relates to the complexity of certain fields of law, especially when a lot of expertise in the issue is required as it is the case for the environmental acquis. In such cases national legislators are not capable of dealing with all relevant regulatory details stemming from the acquis and produce only framework legislation establishing regulatory principles. Such framework legislation includes enabling provisions (or authorisation clauses) authorizing line ministries or local authorities to adopt detailed rules, which is usually done in the form of implementing acts. Such provisions are also used to make amendments more rapidly without going back to parliament.[29] This practice results in the adoption of legislation of different rank and might lead to a complex regulatory framework. In order to maintain it well, an efficient interconnection between the legal acts within the framework should be ensured, otherwise legal certainty might be undermined.

Sectoral legal approximation

It ought to be said that not always a draft measure will be falling into one field of law only. For instance, many issues regardless sphere are additionally covered by provisions of criminal law as a sanction for illegal activities. There may be different solutions on how to approach this issue. One of them is to incorporate the provisions of, e.g. directives into one code, regardless their belonging to different fields of law. Another solution is to identify the provisions that belong to different fields of law and incorporate them into different pieces of national regulation.

Drafting patterns of legal approximation

General principles

This part deals with the procedure of national law drafting within the process of legal approximation as there are fundamental principles which are relevant for the legal approximation: legislation should be consistent, coherent and clear.[30] It is important to bear in mind that when drafting legislation and deciding if approximation with acquis is needed, the object of legal measure should be taken into account rather than the name or type of norms in the draft. Object of legal measure is defined not purely on the basis of the substance of the norms of the draft but also taking into account legal implications of its implementation, especially when methods used are those of deregulation and re-regulation. Therefore a due account ought to be paid to the provisions of existing legislation which ought to be repealed or amended.

National law drafting must be led by national constitutional norms on the legislative procedure.[31] The essential feature of the legal approximation process is that the approximated measure should be both compatible with the acquis and with national legal system.

To duly perform the process of legal approximation the drafting body should take into account the level of development of the country and corresponding stance of the legal system in terms of administrative (e.g. availability of trained staff) and financial burden as well as the burden of the addressees of legislation. This is particularly important in the case of countries in transition. In this respect, first, a national act should “minimize both the tasks of the administration and the administrative weight put on the users.”[32] Second, approximation should be performed in a way that minimizes the government spending and the cost for the users.[33]

Legal approximation should be always based on impact assessment and particularly on a so-called Regulatory Impact Assessment (RIA). This means that probable costs and benefits of all fields of regulated relations should be assessed.[34] Additionally it should be born in mind that “no rules should be drafted if there is no guarantee that they can be implemented [and enforced]”. ^[35] Therefore a good account of a future implementation and enforcement should be considered when drafting approximated provisions. As it is stated in the Commission White Paper, “a merely formal transposition of legislation will not be enough to achieve the desired economic impact”.[36]

Finally, as long as the scope and the priority areas for approximation are defined, approximation should focus primarily on the acquis relevant to those areas in order to avoid dispersion of the approximation activity.

Drafting approximated national law

The approximation work on a certain legal measure can be generally divided into the following steps: [37]

1.    Identification of the relevant national legislation including subordinate implementing acts. In case there is relevant legislation, it is screened with a view to identify non-compliant provisions which ought to be approximated. This is done by a side-by-side comparison of the national provision with the provision of the acquis.

2.    Choosing relevant means, method and technique according to their relevance. If more than one means, method or technique is needed – a combination thereof can be involved.

3.    Approximation of provisions itself.

4.    Check for inconsistency within the legal measure. This step is especially important when the approximation means chosen is re-regulation.

5.    Making compatible the draft national act with the national legal system.

6.    Assessment of the degree of compliance of the draft act with the relevant acquis provisions.

During this process it is important to analyse first the primary and secondary law of the EU. When it is done, an indispensable step is to find applicable case-law of the CJEU. Failure to do so, as it will be seen in Chapter 5, will make an approximation mistake more likely. Next, it is advisable to consult proposals to amend the relevant acquis and to draft legal measures if there are any. For more clarity, it is reasonable to check the way the member states of the EU approximated relevant procedures. Finally, approximation activity should be always guided by and be within the framework of the general principles of the EU law.

The main challenge to identify relevant existing national legislation appears when several acts cover similar issue. If this is the case it can be recommended to perform codification using sectoral legal approximation technique to make the process of approximation easier at the moment of approximation and during future amendments. Otherwise, when codification is impossible or redundantly complicated then the approximation means such as deregulation (leaving only one national act regulating the issue and repealing the other) or adoption of a new act can be applied.

The approximation measure is then sent by a submitting body to the body in charge of assessment which can return the draft to correct approximation mistakes.

In order to efficiently check compatibility of draft legislation with relevant provisions of the EU legislation there are two steps to follow. First, self-assessment should be made by the drafter of the proposal which is done in a form of an explanatory memorandum that accompanies the draft.[38] It has two functions: to summarize in a simple manner the provisions of the draft act and to indicate compatibility with the EU law.^[39] Second, the central body responsible for legal approximation makes its own analysis for compatibility. A useful tool, as it proves to be,[40] is the so called concordance table. Those can be of different kinds. However there are some basic rules to be adhered to and basic elements that tables of concordance should comprise.

Normally each legislative act is inscribed in a separate table which may have different number of columns. However, it should have at least three columns indicating, firstly, provisions of an EU normative act to be approximated with, secondly, provisions of a national legal measure that contains or should contain approximated norms, and, thirdly, comments which are indeed a degree of compliance assessment.^[41] However this structure can be improved with two more columns: one stating the reasons for the achieved degree of compatibility and the other indicating the date foreseen to achieve full compatibility. There are three possibilities: it can be declared that a legal measure is in full compliance, partial compliance or contrary to a corresponding acquis provision. The reasons for a substantive deviation should refer to a certain analysis or study and not be of general nature.[42] Recommendations on the following actions should also be envisaged. The scheme described above allows for better structuring of legal approximation process and adds an element of responsibility.

As for the fields where the legal provisions are inserted, it is possible to have two approaches: either to cite national provisions in the first column while EU provisions in the second, or vice versa. The choice depends primarily on the number of pieces of the national and EU legislation, e.g. in case if one piece of draft legislation being approximated to several pieces of EU legislation the national draft goes to the first column. However, “in the interest of clarity and facilitation of the monitoring of the legislative approximation”[43] the priority must be given to the EU legislation in the first column. Also there could be a separate field for citing relevant case-law of the CJEU.

If it is relevant, it should be noted in the table of concordance that the specific article of an EU act falls into another field of legal approximation. By analogy, if the object of legal measure belongs to several fields of law it should be mentioned as well.

Approximation specifics of regulations, directives and case-law

As it has been stated earlier, during the process of legal approximation the entire  EU law should be taken into account, comprising general principles of law, primary law, secondary law and the case-law of the CJEU. However this part is concentrated more on some of the most pertinent elements of the acquis with particular specificities.

Regulations

Regulations have distinctive effect in the EU law – they are acts that do not require national measures of transposition and are directly effective in the national legal orders.[44] However this is the case mainly for member states of the EU. In order to meet all relevant Union acquis requirements it will be necessary to have the definitions and other provisions of regulations  incorporated in the national law of approximating countries. As long as third countries do not have similar provisions concerning the effect of the EU law, approximation is needed.[45] It is important, taking into account their effect in the EU law, to have the wording as close to the regulation as possible, without significant deviation from the meaning of these acts in order to retain the effect of the provisions of regulations and not to undermine the future implementation of national legislation.[46] This brings us to a conclusion that the most appropriate methods for approximation of regulations are copy-out and annex approximation.

If decisions under Article 288 TFEU have the nature of regulations the approximation should follow the same logic as if it were a regulation.[47]

Directives

Directive is another peculiar act of secondary law of the EU  binding  those to whom it is addressed but leaving them the choice as to forms and methods of its implementation.[48] Therefore directives are usually less clear-cut than regulations and therefore leave more freedom for approximation activities. However in order to approximate correctly a number of steps should be taken in the analysis of its text. First of all, the most important benchmark for approximation is the objective the directive aims to reach – those are usually located in the preamble (there is no need to conduct approximation directly with the preamble). Preamble also indicates whether it pursues minimum or total harmonisation. Minimum harmonisation allows for stricter rules to be applied by countries. Therefore gold plating might be useful as a method of approximation, while total harmonisation precludes it and requires strict following of the provisions of the directive and therefore stricter approximation methods should be applied. Following these actions the most suitable means, methods and techniques should be identified to reach the objective and the level of harmonisation required. It should be also clarified if the directive presupposes prior approximation with other directives. [49]

It is important to stress that following the case-law of the CJEU certain provisions of directives might have direct effect.[50] This has direct implications on the approximation process as such provisions should not be deviated from. Finding direct effect might prove to be a difficult exercise which in general implies careful examination and monitoring of the case-law of the CJEU.

If decisions under Article 288 TFEU have the nature of directives, the approximation should follow the same logic as if it was a directive.[51]

Case-law

Sometimes the approximation with CJEU rulings is distinguished as a separate activity.[52] In this paper this approach is supported. The more it is relevant in the case of non-member states that there is no recourse to the CJEU to rule on the compatibility of national legislation and its correct approximation with the acquis, and therefore close monitoring of the CJEU rulings should be conducted.

The CJEU case-law is an important source of interpretation of the Union law which makes it indispensable for correct legal approximation. However when the case-law is considered it should be born in mind that the CJEU is not bound by its previous decisions, and therefore if there is a range of different rulings concerning similar issue, only the latest should be considered.

The approximation with the jurisprudence of the CJEU should be performed both ex ante and ex post. The former suggests that on each stage of the approximation process the relevant case-law should be consulted  to find the interpretation given to provisions of the acquis and to see if there are approximation mistakes committed by member states of the EU. The latter means that if the national act has been approximated with an act of the acquis that the CJEU declared t invalid, the national act shall be modified or repealed immediately after the issue of the ruling. In case certain provisions of the acquis were interpreted in a way that makes current approximation wrongful, necessary amendments should be considered.[53]

Conclusion

This article has sought to contribute to the establishment of a universal theoretical methodology of legal approximation process of third countries which aspire to become an EU member state or which approximate their national legislation to the acquis for other reasons. In this respect a general framework of legal approximation was described including the delimitation of the scope of legal approximation, its programming and basic requirements for an institutional setup.

An indispensable part of the methodology is the typology of legal approximation means, methods and techniques. Therefore it is established that the means of legal approximation are de-regulation, re-regulation, adoption of new legislation, accession to international agreements and standardization – each with its distinctive conditions of application. The methods comprise re-wording (re-writing), copy-out (one-to-one approximation), gold plating, annex approximation and standard practice – of which the most widely used is re-wording. Finally, the codificatory techniques are postponed (delayed), sequenced (segmented), structured and sectoral legal approximation. It is argued that if the necessity arises, there is a possibility to cumulate these approximation tools within the groups.

It is observed that drafting patterns of legal approximation possess common principles. An indispensable part of the process is that the approximated measure ought to be compatible both with the acquis and with the national legal system. In order to achieve this result it is proposed to follow a successive list of steps in the legal approximation drafting. Even though the entire acquis should be taken into account during the drafting process, it is observed that there are specific features in the approximation  of  regulations, directives and the case-law of the CJEU. Due to the particular nature of regulations and directives, approximation with them should be done using different methods – copy-out and annex approximation in the first case, and, depending on the objectives set out in the preamble, re-wording, gold-plating and copy-out, in the second. Approximation with CJEU rulings consists in ex ante and ex post approach – the case-law should be followed closely to approximate correctly the provision of the legal measures of the EU, and immediately as soon as it becomes necessary to repeal or amend current provisions which prove to be no longer consistent with the acquis.

Therefore, this article is an attempt to contribute to the establishment of a universal methodology of legal approximation process. As long as it outlines only the basic principles, more work should be done in future.

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