Presentation by Anita Nemeth, Hungary, on legal approximation, given at the workshop organised by SIGMA with the Turkish Ministry for EU Affairs on the Transposition of EU legislation into the legal system of Turkey, Ankara 25 May 2016.

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
Transposition of EU Legislation into the Legal System of Turkey:
The ways and means to check the draft legislation as to their conformity
with the EU acquis
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, Member of the Negotiating Team of Hungary)
Ankara, 25 May 2016

2. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
WHAT IS LEGAL APPROXIMATION?
DEFINITION
• Law as a tool and beyond
• EU as a special legal community, special nature of the legal system of
the EU, EU-MS special legal relationship; legal integration
• At the level of the EU: adoption of secondary law in the competences
of the EU to achieve the EU objectives, on the basis of the national
law of the MS and harmonisation thereof
• At the level of the MS: fulfilment of the obligations arising from the
Treaties and resulting from the acts of the EU institutions; the process
of harmonisation of the national law with the EU law
• Before the accession: integration objective, tool; preparations for the
EU membership (political, economic and legal criteria) + fulfilment of
the general (and gradual) and special harmonisation requirements
under the association agreement (if any or similar)
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3. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
WHAT IS LEGAL APPROXIMATION?
• Broader concept: (not only) transposition of the EU law into the
national legal system + implementation, enforcement (realisation of
individual rights, concrete obligations) +
• Effective application in the practice + „equal treatment” for the
„foreign origin rules” in the implementation and enforcement
• Different terms: approximation, harmonisation, coordination,
alignment – inconsistency, but synonyms
• Legal basis
• Negative and positive integration, harmonisation
• Positive harmonisation with certain „deflections” (exceptions,
derogations, minimum requirements, options etc.)
• Different EU policies – different legal, harmonisation solutions
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4. AjointinitiativeoftheOECDandtheEuropeanUnion,
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TYPES OF LEGAL APPROXIMATION
• Unification („replacement”, full competence, mainly
Regulations)
• Approximation (within the frame of a EU act certain room
for „manoeuvre”, mainly Directives)
• Co-ordination (coordination of activities, exchange of
information etc.)
Generally:
• EU legislation is not for a unified law;
• however, there are fields of unifications;
• different legal cultures
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5. AjointinitiativeoftheOECDandtheEuropeanUnion,
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MAIN STAGES OF LEGAL APPROXIMATION
• Preparatory stage (establishment of all the necessary preconditions;
concept, institutions, mechanisms, technical and personal conditions)
• Analytical stage (substantial preparations; definition of priorities,
programming/plans, impact assessments, translation; general and
special preparations)
• Transposition (elaboration of the drafts, conciliations, adoption)
• Implementation (adequate application in the practice)
• Enforcement (necessary measures of the competent authorities;
monitoring, surveillance, inspection controls, penalties, judiciary
measures)
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6. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
THE IMPORTANCE OF THE NATIONAL
PROGRAMME FOR THE ADOPTION OF
THE ACQUIS (NPAA)
• Role of the NPAA – internal programme (strategy, priorities, also
detailed plans) and tool for EU monitoring the progress (Regular
Reports)
• Structure (comprehensive):
- Political criteria,
- Economic criteria,
- Capacity to assume the obligations for membership
(A. within the framework of Association Relations; B. adoption of the acquis)
- Administrative capacity for the adoption of the acquis
- Global financial assessment of the reforms
• Turkish NPAA – National Action Plan for EU Accession
• Hungarian solution: + separate programmes for legal harmonisation –
more detailed, but in harmony with the NPAA (see later)
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7. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
MAIN CHALLENGES OF LEGAL APPROXIMATION
• Complex issue (in process, in substance)
• Impact on the whole legal system; challenge in quantity and quality –
it takes time!
• Outsider’s alignment and moving target difficulties
• If the state, administration, legislation process „functions well”, it is
easier to meet the EU requirements
• Organic integration of the EU aspects is better than to have double
systems (impact on the situation after the accession); also organic, not
„mechanical” approach in substance (acceptance + national interests,
priorities, traditions etc.)
• Expertise, real team work (cooperation within the public
administration and outside; even with academics, business actors and
civils) + good, strong coordination is a key factor + political support
• Strong, dedicated legal team is necessary (generalists + specialists also
with wide EU knowledge + languages)
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8. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Thank you for your attention!
Annex: Communication of the Minister of Justice
8002/1999. (IK.10.) IM
on the management of matters relating to law harmonization
(not official translation)
dr. Anita Németh
dr.nemeth.anita@t-online.hu
kozbeszerzesijog@ajk.elte.hu
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