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The Impact of EU Legislation on National Legal Systems: Towards a New Approach to EU – Member State Relations

  • Ton VAN DEN BRINK (a1)

How does EU legislation impact the Member States? Arguably, no other issue is more closely connected to national sovereignty. However, existing research has thus far failed to deliver a univocal answer to this question. Instead, quantitative research – from political scientists and public administration scholars – has resulted in very diverging conclusions. By contrast, the legal perspective on the relationship between the EU and its Member States has been dominated by a focus on the principles of conferral and subsidiarity, as well as on the delineation and use of EU powers. Such an approach makes it equally difficult to identify the actual and concrete impact of EU legislation. Yet, it is contended in this contribution that a legal perspective, focusing on the actual content of EU legislation, is needed to come to a better understanding of the EU’s legislative impact on the Member States.

The scope of application and the added value of EU legislation as well as national discretion therein are three key elements for determining the impact of EU legislation. The scope of application concerns the situations covered by EU legislation; added value regards the question of how EU legislation relates to other (pre-existing, overarching and adjacent) EU law. Policy choices and other room for manoeuvre for the Member States included in EU legislation makes for national discretion. Examples may be open norms or non-defined terms and concepts and the possibility to apply exceptions at the national level to general rules of EU legislation. Three areas of EU law are compared, each with a focus on a particular legislative act: migration law (the Family Reunification Directive); freedom to provide services (the Services Directive) and criminal law (the Framework decision on the European Arrest Warrant).

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I would like to thank the editors and anonymous reviewer(s) for their helpful comments, and Laurens van der Kreij for all his help.

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1 J Delors, Debates of the European Parliament [1988] 6 July No 2-367/140.

2 See eg Moravcsik, A, ‘The Myth of Europe’s “Democratic Deficit”’ (2008) November/December Intereconomics 316, pp 331340 .

3 33BvE 2/08, DE:BVerfG:2009:es20090630.2bve000208.

4 Section 18 European Union Act 2011 (the so-called ‘Sovereignty Clause’).

5 Inter alia prohibiting Ministers of the Crown to vote in favour of or otherwise support a decision at the EU level unless the draft decision is approved by Act of Parliament (see eg section 7(3) European Union Act 2011).

6 On the basis of research carried out by Open Europe in 2005, cited in Steinberg, J, Why Switzerland? (Cambridge University Press, 2015), p 295 .

7 See the references to these estimates made by Bovens, M and Yesilkagit, AK, ‘The EU as Lawmaker: The Impact of EU Directives on National Regulation in the Netherlands’ (2010) 88(1) Public Administration 57 . These authors themselves come to a lower percentage.

8 Eg Page, EC, ‘The Impact of European Legislation on British Public Policy Making: A Research Note’ (1998) 76(4) Public Administration 803 ; Müller, WC et al, ‘Legal Europeanization: Comparative Perspectives’ (2010) 88(1) Public Administration 75 .

9 Hogenbirk, S and Princen, S, ‘Het Soortelijk Gewicht van Europese Wetgeving. De Invloed van de EU Nader Bekeken’ (2010) 19 (1) Bestuurskunde 71 .

10 In a research paper of the House of Commons, which inter alia discusses studies from other Member States, a number of studies have been elaborated which use have applied this method to study the impact of EU legislation: How much legislation comes from Europe? (House of Commons Library, 2010) Research Paper 10/62

11 European Parliament and Council Directive (EC) 2000/36 [2000] OJ L197/19.

12 European Parliament and Council Directive (EC) 2006/123 [2006] OJ L376/36.

13 Piris, Cf, who considered the competence catalogue ‘a codification of ECJ case law and treaty law’: J Piris, The Lisbon Treaty: A Legal and Practical Analysis (Cambridge University Press, 2010), p 74 .

14 Ibid p 77.

15 Craig, P, ‘Competence: Clarity, Containment and Consideration’ (2004) 29(3) European Law Review 323 .

16 European Parliament and Council Directive (EC) 2003/33 [2003] OJ L152/16.

17 Schütze, R, From Dual to Cooperative Constitutionalism (Oxford University Press, 2009), p 190 .

18 European Governance: A White Paper COM (2001) 428; Armstrong, KA, ‘The Character of EU Law and Governance: From ‘Community Method’ to New Modes of Governance’ (2011) 64(1) Current Legal Problems 179, p 187 .

19 Prechal, S, Directives in European Community Law (Clarendon Press, 1995), p 86 .

20 Protocol No 30 (annexed to the Treaty establishing the European Community). This protocol has been replaced with a new protocol which no longer contains the provision.

21 ‘Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making’ [2016] OJ L123/1. According to De Witte, proportionality is, in light of Art 297 TFEU, still the normative foundation for the choice between regulations and directives: De Witte, BLegal Instruments and Law-Making in the Lisbon Treaty’ in S Griller and J Ziller (eds), The Lisbon Treaty – EU Constitutionalism Without a Constitutional Treaty? (Springer, 2008), p 96 .

22 Protocol No 30, consideration 25.

23 Ibid, consideration 12.

24 Ibid, the relevant consideration (number 12) reads: ‘It will ensure that the action it proposes is as simple as is compatible with the proper attainment of the objective of the measure and the need for effective implementation.’

25 COM(2007) 502 final, A Europe of Results.

26 A pre-Lisbon empirical study by Bogdandy et al has demonstrated this, and there is no indication this has significantly changed since then. Bogdandy, A von et al, ‘Legal Instruments in European Union Law and their Reform: A Systematic Approach on an Empirical Basis’ (2004) 23(1) Oxford Yearbook of European Law 91 .

27 Enka BV v Inspecteur der Invoerrechten en Accijnzen Arnhem, C-38/77, EU:C:1977:190, para 12.

28 European Parliament and Council Directive (EC) 2000/36 [2000] OJ L197/19.

29 For some policy areas, such as criminal law, directives have been prescribed (see inter alia Art 82, para 2; Art 83 TFEU). This may not explain, however, why the choice of legal acts depends on the policy area, as the TFEU mostly refers to ‘measures’, thereby leaving it to the discretion of the EU legislature to opt for either regulations or directives.

30 European Parliament and Council Directive (EC) 2005/29 [2005] OJ L149/22.

31 Slot, PJ, ‘Harmonization’ (1996) 21(5) European Law Review 378 ; Klamert, M, ‘What We Talk About When We Talk About Harmonisation’ (2015) 17(1) Cambridge Yearbook of European Legal Studies 360 .

32 See eg Carlo Tedeschi v Denkavit Commerciale s.r.l., C-5/77, EU:C:1977:144.

33 Barnard, C, The substantive law of the European Union, 5th ed (Oxford University Press, 2016), p 624 ff.

34 The effects have therefore been described as a horizontal transfer of sovereignty: KA Nikolaïdis, Mutual Recognition Among Nations. The European Community and Trade in Services (1993) PhD thesis, Harvard, p 491.

35 The existence and the scope of the European Union’s powers and influence on national criminal law has been the focus of intense academic debate. See Mitsilegas, V, EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe (Hart Publishing, 2016), ch 2 (in particular 2.IV).

36 This must be seen as a guarantee for the Member States that lost their veto powers.

37 On the basis of the Court decision in Commission v Council, C-176/03, EU:C:2005:542, which has received much critique in legal doctrine.

38 Cf Art 82 TFEU.

39 Council Framework Decision (EC) 2001/220/JHA [2001] OJ L82/1; European Parliament and Council Directive (EC) 2012/29 OJ L315/57.

40 APAV/Victim Support Europe, Victims in Europe: Implementation of the Framework Decision on the Standing of Victims in the Criminal Proceedings in the Member States of the European Union (2009) Project Victims in Europe Report,

41 Art 2 Directive (EC) 2012/29.

42 Council Framework Decision (EC) 2002/584/JHA [2002] OJ L190/1.

43 Although the Framework decision itself is silent on the issue, the Court nevertheless concluded that Member States could not include refusal grounds that are not mentioned in the Framework decision: Wolzenburg, C-123/08, EU:C:2009:616.

44 Klip, A, European Criminal Law: An Integrative Approach, 2nd ed (Intersentia, 2012), p 411 .

45 Further elaborated by Klimek, L, European Arrest Warrant (Springer, 2015), pp 311320 .

46 As signaled by the Commission: COM(2011) 175 final, Report from the Commission to the European Parliament and the Council. See also P Albers et al that studied inter alia whether executing authorities indeed refrain from exercising proportionality scrutiny on incoming EAWs: Albers, P et al, Final report: Towards a Common Evaluation Framework to Assess Mutual Trust in the Field of EU Judicial Cooperation in Criminal Matters (Ministerie van Justitie, 2013).

47 2 BvR 2236/04, DE:BVerfG:2005:rs20050718.2bvr223604.

48 The Radu decision is the most notable example: Radu, C-396/11,EU:C:2013:39.

49 The above mentioned decision in Radu is a case in point here, as is the Melloni decision of the Court: Melloni, C-399/11, EU:C:2013:107.

50 Joined cases Aranyosi and Căldăraru, C-404/15, EU:C:2016:198.

51 Bob-Dogi, C-241/15, EU:C:2016:385.

52 Dworzecki, C-108/16 PPU, EU:C:2016:346 and Poltorak, C-452/16 PPU, EU:C:2016:858 respectively.

53 T van den Brink, ‘Horizontal Federalism, Mutual recognition and the Balance Between Harmonization, Home State Control and Host State Autonomy’ (2016) 1(3) European Papers 938.

54 Council Framework Decision (EC) 2002/475/JHA [2002] OJ L164/3.

55 Art 205 Dutch Code on Criminal law.

56 Even though at the level of policy, initiatives such as European Commission, Global Approach to Migration and Mobility (COM (2011) 743 final) and Council of the European Union, European Pact on Immigration and Asylum (Council Document 13440/08, 24 September 2008) have been developed and adopted, no such an integrated approach to migration exists at the level of legislation. The latter pact contains a call for concrete measures in relation to a set of common principles labelled as ‘basic political commitments’ ( Carrera, S and Guild, E, ‘The French Presidency’s European Pact on Immigration and Asylum: Intergovernmentalism vs. Europeanisation? Security vs. Rights?’ (2008) September (170) CEPS Policy Briefs, p 3 .

One of the main reasons for the lack of such an overall legal system lies in the range of legal bases that may be applied to regulate migration issues.

57 Researchers: Council Directive (EC) 2005/71 [2005] OJ L289/15; EU family members: European Parliament and Council Directive (EC) 2004/38 [2004] OJ L158/77; seasonal workers: European Parliament and Council Directive (EU) 2014/36 [2014] OJ L94/375; asylum seekers: European Parliament and Council Directive (EU) 2011/95 [2011] OJ L337/9.

58 Prechal, S and van den Brink, T, Methoden en Technieken van Omzetting van EU-recht (Research report for the Dutch Council of State), p 18, .

59 The term ‘balance’ is used here in a neutral way. This implies that no normative judgement is made whether the balance that has been struck is ‘optimal’, but simply that these interests have played a role in the policy choices that have led to the eventual acts. Obviously, there has been a lot of debate on the rightness of these choices.

60 Council Directive (EC) 2008/115 [2008] OJ L348/98; Council Directive (EC) 2001/40 [2001] OJ L149/34; Council Directive (EC) 2003/86 [2003] OJ L251/12; Council Directive (EC) 2003/9 [2003] OJ L31/18.

61 Council Directive (EC) 2008/115 [2008] OJ L348/98, Art 5.

62 See for a comparison Costello, C, The Human Rights of Migrants and Refugees in European Law (Oxford University Press, 2016), ch 4 .

63 Of particular relevance here is the report by Groenendijk on the implementation in a number of Member States, Groenendijk, K et al, ‘The Family Reunification Directive in EU Member States. The First Year of Implementation’ (2007) 1 Nijmegen Migration Law Working Papers Series .

64 This regime is laid down in European Parliament and Council Directive (EC) 2004/38 [2004] OJ L158/77.

65 COM(2008) 610 final, Report from the Commission to the European Parliament and the Council on the application of Directive 2003/86/EC on the right to family reunification, p 4.

66 K and A, C-153/14, EU:C:2015:453. See also S Peers, ‘Integration Requirements for Family Reunion: The CJEU Limits Member States’ Discretion’ (Euanalysis, 9 July 2015)

67 European Parliament v Council, C-540/03, EU:C:2006:429, consideration 59. For a more detailed and elaborate analysis of the relation between the Directive and international legal provisions, most notably Art 8 EConHR, see: Boeles, P et al, European Migration Law (Intersentia, 2009), pp 183187 .

68 Peers, S, EU Justice and Home Affairs Law, 3rd ed (Oxford University Press, 2011), pp 463464 .

69 See note 67 above.

70 Ibid, para 105.

71 See Boeles et al, note 67 above, p 193.

72 Council Directive (EC) 2003/86 [2003] OJ L251/12, Art 4(2).

73 Ibid, Art 3(5).

74 Boeles et al, see note 67 above, p 202.

75 European Parliament and Council Directive (EC) 2006/123 [2006] OJ L376/36.

76 Hatzopoulos, V, ‘The Court’s approach to services (2006–2012): From Case Law to Case Load?’ (2013) 50(2) Common Market Law Review 459 .

77 Barnard, C, The Substantive Law of the European Union, 4th ed (Oxford University Press, 2013), p 426 . For a non-exhaustive list of services to which the Directive applies, see: Davies, GT, ‘The Services Directive: Extending the Country of Origin Principle and Reforming Public Administration’ (2007) 32(2) European Law Review 232 , p 234.

78 Stelkens, U et al, ‘General Comparative Report on the Research Project ‘The Implementation of the Services Directive in the EU Member States’ of the German Research Institute for Public Administration Speyer’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012).

79 Mirschberger, M ‘The Implementation of the Services Directive in Germany’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012), p 230 .

80 Stelkens et al, see note 78 above.

81 Trybus, M and Berger, AThe implementation of the Services Directive in the United Kingdom’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012), pp 636644 .

82 See eg Prechal, S et al, ‘The Implementation of the Services Directive in the Netherlands’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012), pp 435474 . They note (at p 446) that prior legislative operations in the Netherlands to reduce administrative burdens, to simplify legislation and to ‘de-regulate’ caused much of domestic law to be already in line with the Directive.

83 These exceptions may be found in Art 2-2a of the Directive.

84 Femarbel, C-57/12, EU:C:2013:517.

85 Zahn has criticized this wide measure of national discretion for leading to a lack of legal certainty: Zahn, R, ‘The regulation of healthcare in the European Union: Member States’ discretion or a widening of EU law? Femarbel and Ottica New Line’ (2014) 51(5) Common Market Law Review 1521 .

86 Consideration 40 of the Decision.

87 See eg Prechal et al, note 82 above, p 447.

88 Davies, see note 77 above, p 236.

89 Opinion of Advocate General Szpunar in Trijber and Harmsen, joined cases C-340/14 and C‑341/14, EU:C:2015:505. The Court referred in these cases to the existence of a possible cross-border dimension, thus leaving the answer open to the fundamental question on the application of the Directive in purely internal situations.

90 The Court avoided the issue in the Trijber and Harmsen cases but it is currently at stake again in pending cases Visser Vastgoed, joined cases C-360/15, X and C-31/16, EU:C:2017:397.

91 COM(2004) 2 final, Proposal for a Directive of the European Parliament and of the Council, Art 16.

92 Griller, SThe New Services Directive of the European Union Hopes and Expectations from the Angle of a (Further) Competition of the Internal Market’ in HF Köck and MM Karollus (eds), The New Services Directive of the European Union, (2008) III FIDE proceedings, p 391 .

93 If this Chapter would apply to purely internal situations, this would make for a significant difference with primary law, as was discussed above.

94 Cf GT Davies, note 77 above.

95 In the absence of case law on the matter, it is however still a point of discussion whether the Court will still allow Member States to rely on other grounds derived from the public interest, see eg Barnard, C, ‘Unraveling the Services Directive’ (2008) 45(2) Common Market Law Review 323 , pp 366–368.

96 Griller, note 92 above, p 415.

97 Davies, note 77 above, p 245.

98 Stelkens et al, note 78 above, p 18.

99 This does imply however, that the burden of proof on the legality of such national rules has shifted which does impact national discretion: Griller, note 92 above, p 415.

* I would like to thank the editors and anonymous reviewer(s) for their helpful comments, and Laurens van der Kreij for all his help.

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