Strasbourg, 30 June 2006 Restricted CDL-UDT(2006)015 Engl. only TG-1-2006

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION)

UNIDEM Campus Trieste 1ST SUMMER SCHOOL

“ - CONSTITUTIONAL AND LEGAL REFORMS –“ Trieste, Graz, Organised jointly by the Venice Commission and the Karl-Franzens University of Graz

4 – 14 July 2006

REPORT

“INTEGRATION OF THE INTO THE LEGAL ORDER OF NEW AND FUTURE MEMBER STATES OF THE EU”

by Mr Jacques ZILLER European Institute, Italy

2

Introduction:

Signing an association agreement with and/or becoming a member of the EU usually leads to an agreement by the relevant to take over part or all of the acquis communautaire into its legal order. This is a major commitment, the consequences of which may easily be underestimated on both sides: the relevant states and the EU institutions and member states.

The presentation will therefore try and address three major questions: What is the acquis communautaire ? How will the acquis be formally integrated into the legal order of new and future member states? How to ensure the effectiveness of this formal integration through an authentic internalisation of the acquis by all those concerned in the future and new member states of the EU?

1) WHAT IS THE ACQUIS COMMUNAUTAIRE ?

a) Definition of the acquis Three texts are especially useful in understanding the meaning of the notion of acquis communautaire 1. A careful appreciation of all the wording reveals the extension of the acquis , which is usually alluded to by referring to the thousands of pages of the Official Journal of the in which directives, regulations, decisions and others have been published since 1 January 1958.

i) Act Concerning the Conditions of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the Adjustments to the Treaties on Which the is founded Article 2

From the date of accession , the provisions of the original Treaties and the acts adopted by the institutions and the before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.

ii) Act Concerning the Conditions of Accession of the Bulgarian Republic and Romania Article 2 From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be bindin g on Bulgaria and Romania and shall apply in those States under the conditions laid down in those Treaties and in this Act. …/…

1 NB the word French acquis is being used in other EU languages than French in daily practice, and is even take up in the Treaties when it comes to the so-called “Schengen acquis ”. 3

Articles 3, 4, 5 & 6 SEE ANNEX 1

iii) iv) Treaty establishing a Constitution for Europe Article IV-438 Succession and legal continuity 1. […] 2. […] 3. The acts of the institutions, bodies, offices and agencies adopted on the basis of the treaties and acts repealed by Article IV-437 shall remain in force. Their legal effects shall be preserved until those acts are repealed, annulled or amended in implementation of this Treaty. The same shall apply to agreements concluded between Member States on the basis of the treaties and acts repealed by Article IV-437. The other components of the acquis of the Community and of the Union existing at the time of the entry into force of this Treaty, in particular the interinstitutional agreements , decisions and agreements arrived at by the Representatives of the Governments of the Member States, meeting within the Council , the agreements concluded by the Member States on the functioning of the Union or of the Community or linked to action by the Union or by the Community, the declarations , including those made in the context of intergovernmental conferences , as well as the resolutions or other positions adopted by the or the Council and those relating to the Union or to the Community adopted by common accord by the Member States , shall also be preserved until they have been deleted or amended.

4. The case law of the Court of Justice of the European Communities and of the Court of First Instance on the interpretation and application of the treaties and acts repealed by Article IV-437, as well as of the acts and conventions adopted for their application , shall remain, mutatis mutandis, the source of interpretation of Union law and in particular of the comparable provisions of the Constitution.

5. […] b) Origin of the notion of acquis : negotiations with , Ireland, and the on their accession to the European Communities (1969-1972) c) Why the acquis ? i) The uniform application of EC law as a guarantee of the effectiveness of the ‘fundamental freedoms’ (circulation of goods, services, workers and capitals and freedom of establishment) and competition rules

ii) Its extension beyond the functioning of the internal market through the notion of EU citizenship d) The scope of the acquis i) For new member states : the whole acquis, subject to gradual application in several sectors, as laid down in the Accession treaties

ii) For associated members : according to the content of the Association treaties e) The content of the acquis i) ‘legislation’: (1) directives (2) regulations (3) decisions (4) ‘framework decisions’ 4 (5) conventions

ii) international agreements (1) in the field of EC exclusive treaty-making competences (2) in the fields of shared treaty-making competences

iii) ‘unwritten law’ (case law of the European Court of Justice and Court of First Instance ; ‘case law’ of the in matters of competition)

(1) interpretation of the treaties and legislation; complements to the treaties and legislation – Nb: EU Charter of fundamental rights

(2) principles of Community law, e. g.: (a) direct effect of Community law ( VanGend & Loos 1962 ) (b) primacy ( Costa v./ ENEL 1964 ) (c) interpretation according to the ‘effet utile ’ and procedural autonomy (d) EC/EU compatible interpretation ( Pupino 2005 for IIIrd pillar)

(3) The European Code of Conduct for Good Administration (European Ombudsman)

2) THE FORMAL INTEGRATION OF THE ACQUIS INTO THE LEGAL ORDER OF THE NEW OR FUTURE MEMBER STATE

a) Regulations (or decisions) v. / directives (or decisions) i) For associated States ii) For new member States

b) Schedule of priorities i) Association agreement / Accession treaties ii) Endogenous list of priorities

c) Ensuring -compatibility of national legislation, regulations and administrative practices (not necessarily by the formal adoption of legislation)

d) Using legally binding instruments i) in order to allow for judicial review ii) and precise information of citizens, businesses and associations iii) about their rights and duties

e) How to do it? i) Translation v. transposition (‘reformulation’ into national legal traditions) ii) Accompanying measures (also for regulations) iii) Techniques according to national law (1) For the adaptation of legislation and regulations (2) For the setting up accompanying measures (3) For publicity and transparency

f) Monitoring by the European Commission i) Under association or ‘pre-accession’ ii) As new member state

5 Act Concerning the Conditions of Accession of the Czech Republic [etc.] = [Act Concerning the Conditions of Accession of the Bulgarian Republic and Romania]

Article 38 [ Article 37 ]

If a new Member State [ Bulgaria or Romania ] has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market , including any commitments in all sectoral policies which concern economic activities with cross border effect, or an imminent risk of such breach the Commission may , until the end of a period of up to three years after the date of entry into force of this Act [ accession ], upon motivated request of a Member State or on its own initiative , take appropriate measures .

Measures shall be proportional and priority shall be given to measures, which disturb least the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such safeguard measures shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and enter into force as of the date of accession [as of the first day of accession unless they provide for a later date ]. The measures shall be maintained no longer than strictly necessary , and, in any case, will be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission will inform the Council in good time before revoking safeguard measures, and it will take duly into account any observations of the Council in this respect.

Article 39 [ Article 38 ] If there are serious shortcomings or any imminent risks of such shortcomings [ in Bulgaria or Romani a] in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty in a new Member State, the Commission may , until the end of a period of up to three years after the date of entry into force of this Act, upon motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect.

3) THE INTERNALISATON OF THE ACQUIS IN THE NEW OR FUTURE MEMBER STATE

a) Identifying the relevant actors i) Government and Parliament ii) Public administration iii) Local government and independent authorities iv) Courts and tribunals v) Advocates and legal counsels vi) Citizens, associations and businesses

b) Making EU law known i) Using the appropriate materials for diffusion (not only official journals and the like)

ii) Training on : (1) Non discrimination and “fundamental freedoms” of movement

(2) EU Charter 6

(3) The European Code of Conduct for Good Administration (European Ombudsman)

EU Charter of Fundamental Rights Article 41 Right to good administration 1. Every person has the right to have his or her affairs handled impartially , fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes : – the right of every person to be heard, before any individual measure which would affect him or her adversely is taken ; – the right of every person to have access to his or her file , while respecting the legitimate interests of confidentiality and of professional and business secrecy ; – the obligation of the administration to give reasons for its decisions . 3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties , in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to , Council and Commission documents .

(4) Sectoral legislations and regulation

c) Ensuring the proper environment for the development of questions for preliminary rulings

i) Understanding the functioning and role of the mechanisms of art. 234 ECT

Article 234 (ex Article 177) The Court of Justice shall have jurisdiction to give preliminary rulings concerning : (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before the Court of Justice.

ii) Training on the use of preliminary rulings (1) Judges (2) Practicing lawyers (a) Advocates (b) Legal counsels (c) Specialised officers in public administration 7

ANNEX 1

Act Concerning the Conditions of Accession of the Bulgarian Republic and Romania

Article 3 1. Bulgaria and Romania accede to the decisions and agreements adopted by the Representatives of the Governments of the Member States meeting within the Council.

2. Bulgaria and Romania are in the same situation as the present Member States in respect of declarations or resolutions of, or other positions taken up by, the European Council or the Council and in respect of those concerning the Community or the Union adopted by common agreement of the Member States; they will accordingly observe the principles and guidelines deriving from those declarations, resolutions or other positions and will take such measures as may be necessary to ensure their implementation.

3. Bulgaria and Romania accede to the conventions and protocols, listed in Annex I. Those conventions and protocols shall enter into force in relation to Bulgaria and Romania on the date determined by the Council in the decisions referred to in paragraph 4.

4. The Council, acting unanimously on a recommendation by the Commission an after consulting the European Parliament, shall make all adjustments required y reason of accession to the conventions and protocols referred to in paragraph 3 and publish the adapted text in the Official Journal of the European Union.

5. Bulgaria and Romania undertake in respect of the conventions and protocols referred to in paragraph 3 to introduce administrative and other arrangements, such as those adopted by the date of accession by the present Member States or b the Council, and to facilitate practical cooperation between the Member States' institutions and organisations.

6. The Council, acting unanimously on a proposal from the Commission, may supplement Annex I with those conventions, agreements and protocols signed before the date of accession.

Article 4 1. The provisions of the Schengen acquis as integrated into the framework of the European Union by the Protocol annexed to the and to the Treaty establishing the European Community (hereinafter referred to as the ‘Schengen Protocol’), and the acts building upon it or otherwise related to it, listed in Annex II, as well as any further such acts adopted before the date of accession, shall be binding on and applicable in Bulgaria and Romania from the date of accession.

2. Those provisions of the Schengen acquis as integrated into the framework of the European Union and the acts building upon it or otherwise related to it not referred to in paragraph 1, while binding on Bulgaria and Romania from the ate of accession, shall only apply in each of those States pursuant to a Council decision t hat effect after verification n accordance with the applicable Schengen evaluation procedures that the necessary conditions for the application of all parts of the acquis concerned have been met in that State. 8

The Council shall take its decision, after consulting the European Parliament, acting with the unanimity of its members representing the Governments of the Member States in respect of which the provisions referred to in this paragraph have already been put into effect and of the representative of the Government of the Member State in respect of which those provisions are to be put into effect. The members of the Council representing the Governments of Ireland and of the United Kingdom of Great Britain and Northern Ireland shall take part in such a decision insofar as it relates to the provisions of the Schengen acquis and the acts building upon it or otherwise related to it in which these Member States participate.

Article 5 Bulgaria and Romania shall participate in Economic and Monetary Union from the date of accession as Member States with a derogation within the meaning of Article 122 of the EC Treaty.

Article 6 1. The agreements or conventions concluded or provisionally applied by the Community or in accordance with Article 24 or Article 38 of the EU Treaty, with one or more third States, with an international organisation or with a national of a third State, shall, under the conditions laid down in the original Treaties and in this Act, be binding on Bulgaria and Romania.

2. Bulgaria and Romania undertake to accede, under the conditions laid down in this Act, to the agreements or conventions concluded or signed by the present Member States and the Community, acting jointly.

The accession of Bulgaria and Romania to the agreements or conventions concluded or signed by the Community and the present Member States acting jointly with particular third countries or international organisations shall be agreed by the conclusion of a protocol to such agreements or conventions between the Council, acting unanimously on behalf of the Member States, and the third country or countries or international organisation concerned. The Commission shall negotiate these protocols on behalf of the Member States on the basis of negotiating directives approved by the Council, acting unanimously, and in consultation with a committee comprised of the representatives of the Member States. It shall submit a draft of the protocols for conclusion to the Council.

This procedure is without prejudice to the exercise of the Community's own competences and does not affect the allocation of powers between the Community and the Member States as regards the conclusion of such agreements in the future or any other amendments not related to accession.

3. Upon acceding to the agreements and conventions referred to in paragraph 2 Bulgaria and Romania shall acquire the same rights and obligations under those agreements and conventions as the present Member States.

4. As from the date of accession, and pending the entry into force of the necessary protocols referred to in paragraph 2, Bulgaria and Romania shall apply the provisions of the agreements or conventions concluded jointly by the present Member States and the Community before accession, with the exception of the agreement on the free movement of persons concluded with . This obligation also applies to those agreements or conventions which the Union and the present Member States have agreed to apply provisionally.

9 Pending the entry into force of the protocols referred to in paragraph 2, the Community and the Member States, acting jointly as appropriate in the framework of their respective competences, shall take any appropriate measure.

5. Bulgaria and Romania accede to the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part and the European Community and its Member States, of the other part (1), signed in Cotonou on 23 June 2000.

6. Bulgaria and Romania undertake to accede, under the conditions laid down in this Act, to the Agreement on the (2), in accordance with Article 128 of that Agreement.

7. As from the date of accession, Bulgaria and Romania shall apply the bilateral textile agreements and arrangements concluded by the Community with third countries.

The quantitative restrictions applied by the Community on imports of textile and clothing products shall be adjusted to take account of the accession of Bulgaria and Romania to the Community. To that effect, amendments to the bilateral agreements and arrangements referred to above may be negotiated by the Community with the third countries concerned prior to the date of accession.

Should the amendments to the bilateral textile agreements and arrangements not have entered into force by the date of accession, the Community shall make the necessary adjustments to its rules for the import of textile and clothing products from third countries to take into account the accession of Bulgaria and Romania.

8. The quantitative restrictions applied by the Community on imports of steel and steel products shall be adjusted on the basis of imports of Bulgaria and Romania over recent years of steel products originating in the supplier countries concerned.

To that effect, the necessary amendments to the bilateral steel agreements and arrangements concluded by the Community with third countries shall be negotiated prior to the date of accession.

8. The quantitative restrictions applied by the Community on imports of steel and steel products shall be adjusted on the basis of imports of Bulgaria and Romania over recent years of steel products originating in the supplier countries concerned.

To that effect, the necessary amendments to the bilateral steel agreements and arrangements concluded by the Community with third countries shall be negotiated prior to the date of accession.

Should the amendments to the bilateral agreements and arrangements not have entered into force by the date of accession, the provisions of the first subparagraph shall apply.

9. Fisheries agreements concluded before accession by Bulgaria or Romania with third countries shall be managed by the Community.

The rights and obligations resulting for Bulgaria and Romania from those agreements shall not be affected during the period in which the provisions of those agreements are provisionally maintained.

10 As soon as possible, and in any event before the expiry of the agreements referred to in the first subparagraph, appropriate decisions for the continuation of fishing activities resulting from those agreements shall be adopted in each case by the Council acting by qualified majority on a proposal from the Commission, including the possibility of extending certain agreements for periods not exceeding one year.

10. With effect from the date of accession, Bulgaria and10. With effect from the date of accession, Bulgaria and Romania shall withdraw from any free trade agreements with third countries, including the Central European Free Trade Agreement.

To the extent that agreements between Bulgaria, Romania or both those States on the one hand, and one or more third countries on the other, are not compatible with the obligations arising from this Act, Bulgaria and Romania shall take all appropriate steps to eliminate the incompatibilities established. If Bulgaria or Romania encounters difficulties in adjusting an agreement concluded with one or more third countries before accession, it shall, according to the terms of the agreement, withdraw from that agreement.

11. Bulgaria and Romania accede under the conditions laid down in this Act to the internal agreements concluded by the present Member States for the purpose of implementing the agreements or conventions referred to in paragraphs 2, 5 and 6.

12. Bulgaria and Romania shall take appropriate measures, where necessary, to adjust their position in relation to international organisations, and to those international agreements to which the Community or to which other Member States are also parties, to the rights and obligations arising from their accession to the Union.

They shall in particular withdraw at the date of accession or the earliest possible date thereafter from international fisheries agreements and organisations to which the Community is also a party, unless their membership relates to matters other than fisheries.