Reka Somssich, Methods of legal transposition, Ankara 24 May 2016

© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
Transposition of EU Legislation into the Legal System of Turkey:
The ways and means to draft legislation with the aim of transposing
the EU acquis into the national legal system
Methods of legal transposition
Réka Somssich, Hungary
Ankara, 24-25 May

• « Legal transplant » (Alan Watson)
• Legal transplants are transported from one legal system to
the other (followed as models or imposed by external
forces)
• EU law: obligation to transpose, the rules are the outcome
of lengthy negotiations reflecting compromises, some
rules are themselves transplants from national laws with a
changed meaning
EU law as a special form of „legal
transplant”

• „bolt-on transposition” – UK
Provisions implementing EU law are clearly separated from
national provisions
• „Integration technique” – DE, HU
Provisions of EU law will be integrated into national
legislation, transposing provisions will loose their foreign
origin
As for the style:
„copying out” OR „allignment”
How to integrate EU law into
national legislation?

• It should be the general way of transposing EU law
• Suitable for framework directives and not suitable for
detailed, technical provisions
Logical transposition with
reformulation
Directive 2006/123 on the internal market of services aims to
abolish all kind of authorisations. The Directive uses the concept of
authorisation in a broad sens (in the Hungarian implementing Act
both authorisations and declarations are covered by this category)

• The freedom to reformulate is limited by the
interpretation given by the ECJ
Logical transposition with
reformulation
Article 6 (1) of Directive 1993/13: Member States shall lay down
that unfair terms used in a contract concluded with a consumer by
a seller or supplier shall, as provided for under their national law,
not be binding on the consumer
Later case-law of the ECJ confirmed that the national judge should
be able to state unfairness ex officio meaning that national laws
freedom is not as wide as suggested by the Directive

• Literal transposition is inevitable in case of definitions,
lists, precisely formulated provisions (which could have
direct effect), technical standards
Literal transposition OR
transformation
(Article 6 (1) of Directive 1999/74) laying hens must have:
(a) at least 750 cm2 of cage area per hen, 600 cm2 of which shall be
usable; the height of the cage other than that above the usable area
shall be at least 20 cm at every point and no cage shall have a total
area that is less than 2000 cm2;
(b) a nest;
(c) litter such that pecking and scratching are possible;
(d) appropriate perches allowing at least 15 cm per hen;

• In traditional areas of private law or criminal law Member
States often try to align the wording of EU provisions to
national legal terms/the Commission however often asks
for literal transposition
transformation
Article 6 (1) of Directive 1993/13: „the contract shall continue to
bind the parties upon those terms if it is capable of continuing in
existence without the unfair terms.”
First HU transposition: „if the parties would have concluded the
contract even without the unfair terms”

transformation
Article 4 (2) of 1993/13: Assessment of the unfair nature of the
terms shall relate neither to the definition of the main subject matter
of the contract nor to the adequacy of the price and remuneration,
on the one hand, as against the services or goods supplies in
exchange, on the other, in so far as these terms are in plain
intelligible language
In the First HU transposition the overall requirement for plain and
intelligible language as a precondition of fairness appeared in a
separate paragraph

• Alignment of EU concepts to similar legal institutions of
national law (even at the level of terminology)
transformation
Directive 85/577/EEC: contracts negotiated away from business
premises, in the German implementing law: Haustürgeschäft
(Hungary implemented the Directive in 2004 by using the same
national term but changed the text of the implementing decree in
2008 to the wording of the Directive)

• In case of vague, undefined concepts literal transposition
is not always the best solution
transformation
Article 5 (2) b) of Directive 2001/29: in respect of reproductions on
any medium made by a natural person for private use and for ends
that are neither directly nor indirectly commercial, on condition that
the rightholders receive fair compensation
The Spanish transposing act abandonned the traditional term of
„remuneración” and used the wording of the Directive
(„compensación”) although most probably the EU legislator did not
want to introduce new terminology but to remain neutral

• Broad, undefined concepts can not by their very nature be
transposed literaly
transformation
Article 7 (2) of Directive 2003/86 on family reunification: Member
States may require third country nationals to comply with
integration measures, in accordance with national law.
The scope of integration measures must be specified by the
Member States

• Should be avoided by non Member States for
constitutional problems (see: Decision 30/1998. (VI. 25.)
AB of the Hungarian Constitutional Court)
• Transposition of Directives by reference is not advised for
Member States either
• Member States can extend the scope of Regulations to
excluded areas by references
Transposition by reference

• Transposition requirement
• Form and method of transposition lies on the Member
State
• „Bolt-on transposition”: a single transposing act
• „Integration”: Integrating transposition measures into the
body of national law (where they fit in)
• Typical: spliting provisions between parliamentary act and
implementing decrees
Transposition of the main
secondary instruments: Directives

• Difficulties of transposing horizontal framework directives
(overall screening of the entire legislation)
Directives
Directive 2006/126/EC necessitated a comprehensive screening of
the national legislation on the maintainability of authorisations (in
Hungary 130 acts had to be amended)

The transposition measures should be legally binding and
available to the public (internal ministerial circulaires are
not suitable means, see: case 361/88, Commission v
Germany,
The mere practice of national authorities in line with the
Directive is not sufficient either (see: case 102/79,
Commission v Belgium). The Directive should be
transposed by legal provisions which are at least at the
same legislative level as provisions which governed the
area before the adoption of the Directive
Directives

• Annexes to Directives should also be transposed as they
form integral part of the legal act (see: C-478/99,
Commission v Sweden)
• Recitals of the preambule do not have to be transposed
(but they might illuminate the meaning of certain
provisions)
• The reasoning of the original proposal might be invoked to
clarify the meaning but only with careful attitude as the
text could have been changed under the procedure
Directives

• Don’t have to be transposed:
- Provisions binding the Commission or other EU organs
- In the pre-accession period: provisions closely linked to
the membership
- Before accession „partial” transposition is possible,
sometimes inevitable (non-transposed provisions should
be recorded)
Directives

• In Member States directly applicable (no reproduction is
tolerated, provisions or Regulations cannot be repeated)
• The Member State has to repeal all (not only conflicting)
provisions of its national law falling under the scope of the
Regulation
• Regulations may foresee the adoption of national
implementing measures (defining sanctions, setting up
procedures, institutions).
Regulations

• Regulation may allow regulatory options to Member
States
Regulations
Article 5 (2) and (3) of Rome III Regulation (1259/2010/EU) on law
applicable to divorce and legal separation
2. Without prejudice to paragraph 3, an agreement designating the
applicable law may be concluded and modified at any time, but at the
latest at the time the court is seized.
3. If the law of the forum so provides, the spouses may also designate
the law applicable before the court during the course of the
proceeding. In that event, such designation shall be recorded in court
in accordance with the law of the forum.

• The difficulty for Member States with Regulations is how
to interconnect national legislation with them in areas
regulated both by EU acts and national laws
Regulations
In the field of private international law the number of EU regulations
adopted is progressively raising. National acts, especially codes on
private international law become therefore truncated as some core
provisions are disappearing from the body of the law. In these acts we
often find „negative scope” provisions referring to the Regulations (in
general or explicitly)

• For non Member States Regulations might serve as models
for legislation (as real legal transplants)
• „Transposed” provisions of Regulations should however be
repealed upon accession
• These provisions should be recorded (or repeal clauses
should be inserted in the acts concerned which are
activated automatically the day of accession)
Regulations

• Janus-faced act
• Article 288: „A decision shall be binding in its
entirety. A decision which specifies those to
whom it is addressed shall be binding only on
them.”
• Before Lisbon the decision had to be necessarily
addressed to Member States or individuals.
• Decisions can be legislative or non-legislative acts
aswell
Decisions

• Do not have to be transposed (but can be)
• Transposition by reference is possible (and frequently used
by Member States)
• Non Member States should treat them like Directives
Decisions

• Are not binding
• Member States are free to follow them (and non Member
States aswell)
• Once transposed, the national legislation should follow the
recommendation (Grimaldi case)
Recommendations

• Judgments of the ECJ interpreting provisions of Directives
should be taken into account when transposing them
• Other judgments of the ECJ should be taken into account if
applicable (decisions which make only sens for Member
States will only be relevant in the future)
• However judgments interpreting provisions of the
Association Agreement or analogous provisions should be
followed
The case-law of the ECJ

• Observance of Treaty provisions should be ensured after
accession
• For that in Hungary approximately a year before accession
an overall screening of the entire legislation took place
Treaty provisions

• Their screening should start long before accession
• In areas falling under the exclusive competence of the EU,
the EU will replace the Member State in multilateral
treaties, bilateral treaties should however be withdrawn
• Any international treaty containing conflicting provisions
with EU law should be withdrawn
International agreements

• Should national legislation reflect exactly the same
terminology used by the EU act? (if the language version is
already available)
• It should be the conscious choice of the national legislator
• In the pre-accession period translation of the acquis
should go hand in hand with the transposition (national
legislator can still have an influence on EU terms)
Terminological issues

• Creation of new terms
Difficulties of finding the right term
Difficulties of translating certain terms
• Using old terms in new context with changed meaning
Terminological issues

• Referring to Directives is an obligation for Member States
• For non Member Sates it will become an obligation upon
accession (therefore it is useful to insert such references
already in the pre-accession period)
• References function as sources of information
• Member States (and non Member States are free to
require the insertion of references in the case of other
instruments – like Regulations, Decisions)
References to EU measures in
transposing acts

• Basic act and amending acts should be listed one by one
• Except: codified acts, recasts
• The way references should be formulated, has to be fixed
in advance (for reasons of tracebility)
References to EU measures in
transposing acts

Reka Somssich, Methods of legal transposition, Ankara 24 May 2016

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Reka Somssich, Methods of legal transposition, Ankara 24 May 2016