assessing the impact of eu legislation on member states. national discretion

8/15/2019 Assessing the Impact of EU Legislation on Member States. National Discretion

1/28

Assessing the Impact of EU Legislation on the Member

States. A Legal Perspective based on the Notion of

National Discretion

Ton van den rin!

"""D#A$T. D% N%T &U%TE"""

Abstract

'o( does EU la( impact its Member States) The *+estion is as politicall,

sensitive as it is di-c+lt to ans(er. It is a politicall, sensitive iss+e as it

concerns ho( the EU a ects national sovereignt,. &+antitative research

has/ ho(ever/ not delivered an e*+ivocal ans(er. Instead/ it has prod+ced

highl, diverging concl+sions (hich ma, be e0plained from the di ering

methods that have been applied. This paper arg+es that a legal approach

is !e, to +nderstanding the impact the EU has on the Member States. Th+sfar/ ho(ever/ the legal contrib+tion to the +nderstanding of the relation

bet(een the EU and its Member States has been mostl, limited to the

elaboration of the principles of conferral/ s+bsidiarit, and other relevant

constit+tional principles. 1+ided b, the notion of 2national discretion3 this

paper (ill e0plore ho( EU legislation leaves polic, choices and other room

for manoe+vre to the Member States. E0amples ma, be the incl+sion of

open norms/ the possibilit, to appl, e0ceptions at the national level or the

limitation of the scope of application of EU la( 4e.g. to transnationalsit+ations5. It compares three distinct areas of EU la(6 immigration la(/

freedom to provide services and criminal la(. The ob7ective of this paper is

th+s to come to a better/ and a more re8ned/ +nderstanding of the relation

bet(een the EU and the Member States.

1. Introduction

1


2/28

$+elled b, gro(ing p+blic concerns across E+rope on the decline of the

nation states/ e0cessive reg+lator, b+rdens imposed b, the EU and

democratic de8cits of the EU/ the iss+e of the E+ropean Union3s impact on

its Member States has been on the political agenda for several ,ears no(.

In this conte0t of a gro(ing politici9ation of EU membership in a n+mber of

Member States/ both opponents and proponents of EU integration have

+sed the arg+ment of the EU3s legislative impact to arg+e their case. The

iss+e is/ ho(ever/ relevant for a (ider variet, of reasons.

$rom the perspective of citi9ens and b+siness/ the legislative impact of the

EU is cr+cial for determining their rights and obligations. Moreover/ the

e ects of EU la( on individ+als have become more diverse. In the conte0t

of the Internal mar!et/ individ+als have mostl, bene8ted from the rights

granted to them (hich co+ld be invo!ed against Member States. In the

Area of $reedom/ Sec+rit, and :+stice/ ho(ever/ vario+s legislation a ects

individ+als in more adverse ; and more intr+sive ; (a,s.

$rom a governance perspective/ the impact of EU legislation is !e, to

+nderstand the relation bet(een the EU level and national levels. This

relation has often been vie(ed thro+gh the lens of E+ropean integrationtheories and constit+tional models. The translation thereof into democratic

arrangements and conse*+ences for national sovereignt, have e*+all,

received m+ch attention. The ver, concrete e ects of EU legislation on

national legal orders and individ+als is/ ho(ever/ e*+all, important.

In >/ the ?ommission President at the time/ :ac*+es Delors/ made a

famo+s prediction on the impact of EU legislation on the Member States.

'e claimed that in @ of economic " and perhaps also of social and 8scal " polic,"ma!ing (o+ld be of EU origin. < This prediction has

activated p+blic administration and political science scholars to research if

this estimate (o+ld indeed be s+pported b, facts. B The 8ndings of this

t,pe of research into the *+antitative e ects of EU legislation remains/

ho(ever/ ambig+o+s.

1

:ac*+es Delors/ Debates of the E+ropean Parliament/ C :+l, >/ No. B" C F/ pp.


3/28

Th+s/ more than BJ ,ears after Delors3 prediction the iss+e has still not

been settled/ even tho+gh the political and societal relevance thereof has

onl, risen since >. The EU3s legislative impact has been lin!ed more

directl, to the principle of state sovereignt,. In the United Kingdom/ the

E+ropean Union Act B@


4/28

arg+e ho( EU legislation act+all, a ects the division of a+thorit, bet(een

the EU and the Member States.

The foc+s of this contrib+tion is on EU legislation. Admittedl,/ legislation is

onl, one (a, in (hich the E+ropean Union a ects the Member States.

E0ec+tive meas+res/ and also decisions of the E?:/ have an s+bstantial

impact on the Member States as (ell. In case of the coordination of

economic policies/ the e0ec+tive po(er of the EU has even risen

enormo+sl, in the last fe( ,ears. The res+lt is a perhaps even bl+rrier

relation bet(een Member States3 and EU po(ers. Nevertheless/ legislating

remains the prime activit, of the EU. It is still the area in (hich the EUs

in +ence is still the greatest/ especiall, in light of the higher levels of

decentrali9ation of e0ec+tive and 7+dicial po(ers in the EU.

In the ne0t section/ I (ill eval+ate (hat res+lts *+antitative research has

,ielded in terms of clarif,ing the EUs legislative impact on Member States

4section B5. Ne0t/ the general elements of the EU3s legislative s,stem (ill

be anal,9ed 4section 5 before t+rning to three concrete legislative areas6

EU free movement of services/ EU criminal la( and EU immigration la(.

These three areas represent areas in (hich the EU3s a+thorit, to legislatehas been contested and in (hich f+ndamental tensions e0ist 4e.g. bet(een

sec+rit, and freedom and bet(een economic freedom and social

concerns5. In other (ords/ these are areas in (hich the impact of EU

legislation constit+tes a politicall, relevant iss+e. In other areas the impact

of EU legislation is m+ch less of an iss+e/ either beca+se the EUs a+thorit,

is hardl, contested 4the ?ommon ?+stoms Union/ $isheries Policies to

name 7+st a fe( e0amples5 or simpl, beca+se the EU lac!s the po(er to

legislate 4as is the case (ith regard to ed+cational policies5. Member Statediscretion ma,/ obvio+sl,/ be assessed in all areas of EU legislation/ b+t

the 8ndings on the act+al impact of EU legislation ma, not be generali9ed

to other areas of EU la( in (hich the conte0t di ers from the ones

anal,9ed in this contrib+tion. This constit+tes/ th+s/ an important

limitation here.

4


5/28

2. Quantitative analyses of the European Union’s legislative

impact

A *+antitative approach (o+ld perhaps be most obvio+s to assess the EUs

legislative impact on the Member States. A persistent element in the

disc+ssion is the estimation that the total vol+me of the acquis

communautaire amo+nts to aro+nd >@.@@@ pages. J et/ this 8g+re in itself

gives no indication of the relative (eight of EU legislation in national la(.

Especiall, in the Netherlands/ a n+mber of st+dies have been carried o+t

that have addressed this iss+e. The res+lts thereof have/ ho(ever/ have

diverged immensel,. Some have come to the concl+sion that +p to C@

percent of D+tch legislation (o+ld be of E+ropean origin/ (hereas others

(ent even f+rther and claimed the percentage to be as high as >@ percent

4thereb, con8rming the prediction of the Delors in the @s5. C Man,

others have come to m+ch lo(er percentages/ tho+gh/ of bet(een >"@= and O.?. M ller/ M.A.P. ovens/ :.1rQnnegaard ?hristensen/ M. :enn,/ K. esil!agit/ 2Legal E+ropeani9ation6 ?omparativePerspectives3/ Public Administration B@ .

5


6/28

the e ects of EU directives as these a ect Member States3 legal orders

directl,. > A closel, related strand of research involves relating the n+mber

of EU transposition meas+res to the total amo+nt of legislation that is

passed (ithin a ,ear in a given Member State or to anal,9e national

legislation for references to EU la(. = All of these methods are problematic

in their o(n (a,. A concentration on EU directives ignores m+ch other EU

legislation/ most importantl, the fact that EU reg+lations greatl,

o+tn+mber EU directives. An anal,sis of national implementing meas+res

e*+all, overe0poses directives/ ignoring directl, applicable EU la(.

Anal,9ing references to EU la( in national legislation is problematic as

s+ch references ma, not be e0plicitl, made6 Member States are not

obliged to refer to +nderl,ing EU so+rces (hen the, adopt legislation. All

these st+dies ma,/ therefore/ ris! to dra( a too narro( pict+re of the

act+al impact of EU legislation.

%ther iss+es (ith regard to *+antitative approaches are of a m+ch more

f+ndamental nat+re. $irst of all/ the impact of EU legislation depends not

onl, on its vol+me. ?omparing for e0ample the ?hocolate directive/


7/28

in s+ch cases/ and ma, therefore not be *+anti8ed. This bloc!ing e ect is/

ho(ever/ +ndeniabl, a cr+cial factor for assessing the impact of EU

legislation in the Member States. This iss+e ma, even emerge in polic,

areas in (hich the legislative po(ers of the EU are limited or even absent

4s+ch as p+blic health protection5/ b+t in (hich the Member States still

need to respect e.g. Internal Mar!et provisions. %ther invisible e ects of

EU la( ma, occ+r in sit+ations in (hich pre"e0isting national legislation

complies alread, (ith ne(l, adopted EU legislation. As national

implementation meas+res are not necessar, in s+ch cases/ the e ect of

s+ch EU legislation ma, be overloo!ed as (ell. Still/ it impacts national

legal orders as Member States are prevented from revo!ing or amending

this national legislation in (a,s that (o+ld not be in line (ith EU la(.

All in all/ anal,9ing the impact of EU legislation in Member States b,

appl,ing *+antitative methods has both f+ndamental and practical

dra(bac!s. This ma, e0plain the s+bstantial di erences in concl+sions to

(hich research of this t,pe has led. ?onse*+entl,/ the +nderstanding of

the EUs legislative impact on the Member States is incomplete.

3. Towards a ualitative approach of the EUs legislative impact!

general legal tools

$rom legal s,stem of the EU a n+mber of elements ma, be derived (hich

are relevant for +nderstanding the impact of the EU on Member States3

legal orders. The t,pe of legal acts is s+ch a relevant factor as the e ects

of reg+lations and directives on national legal orders di er and the

directive is generall, seen as a less intr+sive instr+ment. Secondl,/ thet,pe of EU po(er +nder (hich legislation is adopted (o+ld seem a

relevant factor6 the s,stem of EU po(ers consists of a categori9ation for

(hich the balance bet(een EU and national legislative a+thorit, forms the

basis. Thirdl,/ the distinction bet(een di erent t,pes of harmoni9ation and

integration is relevant as the e ects on the Member States constit+te the

disting+ishing element. These three elements (ill be considered in more

detail in this section.

7


8/28

3.1 The nature of EU acts

The Treat, de8nitions of the reg+lation and the directive 4article B>> T$EU5

s+ggest that reg+lations are more intr+sive instr+ments than directives.

Indeed/ directives have been regarded a more e0ible instr+ment as the,

allo( Member States to choose appropriate forms and methods.


9/28

?ommission arrives at an opposite concl+sion than the one established in

the old S+bsidiarit, Protocol/ the +nderl,ing ass+mption remains that

directives are less intr+sive from a Member States3 perspective. It is onl,

the desirabilit, thereof on (hich the ?ommission ta!es a di erent stance.

The legislative practice reveals/ ho(ever/ an ambig+o+s pict+re (ith

regard the +se of reg+lations and directives. The E?: has enabled this

ambig+it, b, allo(ing the EU legislat+re to adopt ver, detailed directives

(hich leave the Member States virt+all, no polic, discretion. In the Enka "

case it arg+ed that in vie( of the ob7ective of the directive it ma, be

necessar, to ens+re 2the absol+te identit, of national provisions3 across

Member States. < ?onse*+entl,/ directives ma, prescribe the Member

States e0act obligations to be transposed into national legislation. The

?hocolate directive is still a pre"eminent e0ample. ?onversel,/

reg+lations have been adopted that have needed s+bstantial eshing o+t

b, national legislat+res in order to become f+ll, e ective. An e0ample is

Article J4BFB@@ FE? on s+pport schemes +nder the

common agric+lt+ral polic, (hich provides6

2Member States shall ens+re that all agric+lt+ral land/ especiall, land(hich is no longer +sed for prod+ction p+rposes/ is maintained in good

agric+lt+ral and environmental condition. Member States shall de8ne/ at

national or regional level/ minim+m re*+irements for good agric+lt+ral and

environmental condition on the basis of the frame(or! set +p in Anne0 I /

ta!ing into acco+nt the speci8c characteristics of the areas concerned/

incl+ding soil and climatic condition/ e0isting farming s,stems/ land +se/

crop rotation/ farming practices/ and farm str+ct+res. 4R5.3

The open"te0t+red (ording 4Hgood agric+lt+ral condition 5 as (ell as the

Member States3 discretion to establish minim+m re*+irements leave the

national a+thorities ample polic, discretion/ despite the legislative act

being a reg+lation. This e0ample/ moreover/ highlights that the choice of

the legislative act in practice depends primaril, on the polic, area

concerned.


10/28

la( and EU compan, la( are reg+lated mainl, b, (a, of directives. The

preference for directives in the 8eld of compan, la(/ b+t also in the 8eld

of cons+mer protection 4meas+res s+ch as the Unfair ?ommercial

Practices Directive5 B@ ; as (ell as the prescribed +se of directives in the

8eld of criminal la( ; m+st be +nderstood from the desire to enable the

Member States to integrate all aspects of an area into a single/ coherent

s,stem of la( 4e.g. ?ivil or ?riminal ?odes5. The adoption of directives in

s+ch 8elds in therefore not based on the impact or the importance of the

EU acts on the national legal s,stems.

The distinction bet(een directives and reg+lations is/ th+s/ a too

ambig+o+s factor to help in +nderstanding the impact of EU la( on the

Member States3 legal orders. The E+ropean legislat+re en7o,s s+bstantial

discretion to opt for either reg+lations or directives (hich has res+lted in a

legislative practice

3. The catalo%ue of com etences and the rinci le of conferral

The catalog+e of competences 4art. B"C T$EU5 (as incl+ded in the Treat,

of Lisbon (ith the ob7ective of creating and increasing clarit, (ith regardto po(ers of the E+ropean Union. This (o+ld impl, that it (o+ld be directl,

relevant for assessing the EU3s legislative impact. The catalog+e (as/

nevertheless/ hardl, a novelt, b+t rather a s+mmar, and bringing

together of the vario+s competences to be fo+nd thro+gho+t the T$EU. B<

The catalog+e of competences is non"e0ha+stive/ as a 80ed s,stem (as

considered b, some +ndesirable given the open and e0ible nat+re of

E+ropean integration. BB Moreover/ given that most EU po(ers have been

classi8ed as shared po(ers 4most notabl, in the 8eld of the InternalMar!et and the Area of $reedom/ Sec+rit, and :+stice5/ the act+al densit,

and intensit, of EU la( depends on the e0tent to (hich the EU legislat+re

has act+all, e0ercised its po(ers. A last iss+e relates to the di-c+lt, of 19 $or some polic, areas/ s+ch as criminal la(/ directives have been prescribed 4see interalia article >B B nd paragraph/ article > T$EU5. This ma, not e0plain/ ho(ever/ (h, thechoice of legal acts depends on the polic, area/ as the T$EU mostl, refers to 2meas+res3/thereb, leaving it to the discretion of the EU legislat+re to opt for either reg+lations ordirectives.20 reference21

?f Piris/ (ho considered the competence catalog+e 2a codi8cation of E?: case la( andtreat, la(3/ :. Piris/ The Treat) of /isbon. A le%al and ractical anal)sis / p. G.22 Piris/ p. .

10


11/28

disting+ishing bet(een polic, areas. Since the E?:3s r+ling on the Tobacco

Advertisement Directive B / meas+res based on article


12/28

harmoni9ation. BC These concepts relate onl, in part to the level of national

discretion the, provide. The concept of optional harmoni9ation/ for

instance/ relates to choices for individ+als or ind+str,/ b+t Member States

are left (ith no s+bstantive polic, discretion or options to choose from in

the implementation of EU legislation. M+t+al recognition as a method of

integration is even more di-c+lt to pin do(n in terms of legislative impact.

%n the one hand/ m+t+al recognition instr+ments allo( Member States to

maintain national legislation and practices (itho+t replacing them (ith

+niform EU standards. %n the other hand/ la(s of other Member States

gain e*+al stat+s to that of domestic la( in case of cross border sit+ations.

Th+s/ m+t+al recognition re*+ires Member States to appl, foreign la(s to

cross border sit+ations. B Lastl,/ the distinction bet(een minim+m

harmoni9ation and total harmoni9ation has been bl+rred b, the obligations

to (hich Member States are s+b7ected in the conte0t of shaping stricter

r+les. Especiall, the desire to c+rb so"called gold"plating has e ectivel,

limited the freedom of Member States.

4. The impact of EU legislation in three policy areas

.1 (riminal la$

The area of criminal la( is closel, connected to the nation state and the

monopol, of the state on the +se of violence. Moreover/ criminal la( has a

long histor, of being a central area of activit, for states. The in +ence of

the EU on criminal la( bears strong mar!s of this state"centered conte0t. B>

EU criminal and criminal proced+ral la( is fragmented in nat+re and is

aimed at reg+lating onl, certain speci8c aspects of criminal and criminalproced+ral la(. , contrast/ at the national level criminal la( and criminal

proced+ral la( have been developed as comprehensive and coherent

s,stems of la(/ +s+all, b, (a, of ?odes of la(. B= 'o(ever/ the in +ence of

26 Barnard, the substantive law of the European union, 2010, p 624 ff27 !he effe"ts have therefore been des"ribed as a hori#ontal transfer ofsoverei$nt%& ' ( )i*ola+dis, -utual .e"o$nition (/on$ )ations !he European

o//unit% and !rade in ervi"es , h a/brid$e -ass & arvard 1993, p 49128 The e0istence and the scope of the E+ropean Union3s po(ers and in +ence on national

criminal la( has been the foc+s of intense academic debate. See . Mitsilegas/ EU ?riminalLa(/ VVV29 See on the vario+s problems that arise from this6 VVV

12


13/28

the EU on national criminal la( has s+bstantiall, increased over the ,ears

at least in terms of the n+mber of legislative acts that have been adopted

at the EU level. In partic+lar the Treat, of Lisbon/ (hich enabled easier

decision ma!ing on EU criminal la( matters/ has paved the (a, for this

intensi8ed role for the EU.

The starting point for assessing the impact of the EU is the Treat, on the

$+nctioning of the E+ropean Union 4T$EU5 (hich la,s do(n the legal

possibilities for the EU to act in this 8eld. The applicable legal bases

determine *+ite speci8call, the t,pe of meas+res the EU ma, adopt/

indeed far more so than most other legal bases in the T$EU. Oith the entr,

into force of the Treat, of Lisbon/ the scope and conditions for appl,ing the

vario+s legal bases have been f+rther speci8ed. @ These speci8c legal

bases e0plain part of the fragmentation of E+ropean criminal la(6 the

E+ropean legislat+re has not been attrib+ted (ith a general po(er to

harmoni9e criminal la(. According to the articles >B">= T$EU cooperation

in criminal matters m+st be based on the principle of m+t+al recognition

and the reg+lation of cross border sit+ations. Article > T$EU prescribes

that EU s+bstantive criminal la( meas+res m+st be limited to minimum

rules in areas of articularl) serious crime . The adoption of meas+res (ithregard to criminal proced+re is s+b7ect to similar constraints. The principle

of m+t+al recognition is the leading principle here as (ell/ and respect for

di erences bet(een Member States 4art. >B 4B5 T$EU5 a s+bstantial

constrain on the development of EU criminal la(. More coherenc,/

ho(ever/ has been bro+ght b, article > 4B5 T$EU that connects other EU

polic, areas to EU criminal la( cooperation. Ohenever in one of these

other EU polic, 8elds criminali9ation is deemed necessar,/ article > 4B5

T$EU serves as an additional legal basis. In the pre"Lisbon era/ noinstit+tional lin! needed to be established (ith the EU criminal la( legal

bases/ based on a decision of the E?:. <

The principle of m+t+al recognition pres+pposes that the Member States3

criminal la( s,stems remain intact/ b+t that the borders bet(een national

s,stems ma, not constit+te an obstacle for cross border la( enforcement.

30

This m+st be seen as a g+arantee for the Member States that lost their veto po(ers.31 %n the basis of the E?: decision in case ?"< CF@ / ?ommission v. ?o+ncil/ (hich hasreceived m+ch criti*+e in legal doctrine/ VVV

13


14/28

Not all EU legislation in the area ma, be easil, +nderstood in these terms/

tho+gh. The previo+s $rame(or! Decision on the Stat+s of the ictim in

criminal proceedings B and its s+ccessor the Directive establishing

minim+m standards on the rights/ s+pport and protection of victims of

crime are neither based on m+t+al recognition/ nor on the reg+lation of

cross border iss+es. Instead/ +niform standards for the protection of

victims are set and the stat+s of all victims in criminal proceedings is

reg+lated/ and not 7+st of those victims involved in cross"border crime. The

$rame(or! decision and the Directive have therefore a ected national

criminal proced+re integrall,. G Moreover/ (hereas the $rame(or! decision

contained several open"te0t+red provisions/ the level of speci8cit, and

concreteness of the ne( Directive is m+ch higher. It has f+rther

strengthened the position of victims b, e0tending their rights and

e0tending the scope of application of the legislative act 4e.g. to incl+de

famil, members of deceased victims5. J The legislative freedom of the

Member States has therefore e ectivel, been diminished.

%ther legislation in the 8eld remains closer (ithin the treat, frame(or!.

The most (ell" !no(n and commented +pon e0ample of EU criminal la(

concerns the $rame(or! Decision on the E+ropean Arrest Oarrant.C

Thislegislative act is indeed both concerned (ith cross border sit+ations and

based on the principle of m+t+al recognition. Unli!e pre"e0isting

international agreements on e0tradition/ the E+ropean arrest (arrant has

s+bstantiall, red+ced national discretion of the e0ec+ting Member State.

M+t+al tr+st in the 7+dicial a+thorities of the Member States is/ th+s/ !e,/

(hich ma!es the impact of the $rame(or! decision considerabl, higher

than (hat co+ld rima facie be e0pected. The impact of the $rame(or!

decision relates 8rst to the diminished discretion of the e0ec+tinga+thorities. In s+bstantive terms/ the e0ec+ting a+thorities m+st appl, the

gro+nds for arrest andFor s+rrender 4the listed crimes of article B 4B5 or the

32 #eference33 #eference34 APA F ictim S+pport E+rope #eport6 ictims in E+rope6 Implementation of the $rame(or!Decision on the Standing of ictims in the ?riminal Proceedings in the Member States ofthe E+ropean Union/ available at6http6FFec.e+ropa.e+F7+sticeFne(sFcons+ltingWp+blicF@@J Fpro7ectWvictimsWe+ropeW8nalWreport

Wen.pdf.35

Establishing minim+m standards on the rights/ s+pport and protection of victims of crime.36 #eference

14


15/28

crimes (hich ma, be s+b7ect to the do+ble criminalit, condition of article

4G5 of the $rame(or! decision5 altho+gh some discretion e0ists in

appl,ing the fac+ltative ref+sal gro+nds 4article G5. As a res+lt of the 80ed

time limits and the obligator, red+ction of formalities contained in the

$rame(or! decision/ the proced+ral constraints on the e0ec+ting

a+thorities are perhaps even more compelling. Member States3

legislat+res have e*+all, seen their discretion diminished. A 8rst indication

is article B4B5 of the $rame(or! decision that contains the list of crimes for

(hich the do+ble criminalit, test has been lifted. Also the fact that the

ref+sal gro+nds have been e0ha+stivel, reg+lated b, the $rame(or!

decision greatl, diminishes national discretion. The high impact of the

$rame(or! decision is in a more general sense demonstrated b, t(o of

the main iss+es that mar! its implementation in the Member States. $irst/

the non"application of the proportionalit, principle/ meaning the

s,stematic iss+ing of E+ropean arrest (arrants for the s+rrender of

persons in relation to ver, minor o ences/ (hich p+ts m+t+al tr+st

bet(een the Member States +nder press+re. > The second iss+e regards

the respect of f+ndamental rights. E0ec+ting Member States are limited in

protecting the f+ndamental rights of re*+ested persons and calls for a

better balance bet(een the principle of m+t+al recognition anf+ndamental rights protection have been made. =

$or some legislation in the area/ the e ects on Member States are modest.

An e0ample are the frame(or! decisions on co+nter"terrorism meas+res. G@

The ob7ective of these frame(or! decisions is to oblige the Member States

to *+alif, speci8c actions as terrorist crimes. 'o(ever/ the frame(or!

decisions appl, to acts (hich national legislat+res have alread, *+ali8ed

as criminal o ences. The e ect of the frame(or! decisions is that thema0im+m penalties (hich ma, be imposed to s+ch crimes is increased b,


16/28

be applied b, the Member States/ b+t the latter retain considerable

discretion as to the choice to (hich o ences the, (ant to appl, the

frame(or! decision. The Netherlands have/ for instance/ incl+ded

recr+iting for the 7ihad to the list of terrorist crimes (hich (as not a

binding obligation on the basis of the $rame(or! decisions. GB

The foregoing represents a 2*+ic!"scan3 of the e ects of EU criminal la(.

The follo(ing concl+sions ma, be dra(n on the basis thereof. $irst/ the

legal bases for EU action from the T$EU is relevant here given the level of

speci8cation contained therein on the possible involvement of the in

criminal la( matters. The act+al legislation adopted not al(a,s re ects

the scope of these legal bases tho+gh. In this sense/ the relevance of the

legal basis is constrained b, legislative practice and foc+sing merel, on

the legal bases ma, res+lt in an +nderestimation of the EU3s impact on the

Member States. Second/ the e ects of EU la( in this area greatl, depend

on the content of the applicable legislation and the scope for national

decision"ma!ing the, o er. In case of co+nter"terrorism meas+res/ EU

legislation provides merel, an addition to national criminal la( and leaves

the Member States considerable polic, discretion. %ppositel,/ the

E+ropean Arrest Oarrant/ altho+gh being completel, in line (ith the Treat,frame(or!/ has had a high impact on the Member States. 'ere/ it has also

been national discretion ; b+t no( the lac! thereof ; (hich is the

e0planator, factor.

. 0i%ration la$

EU migration la( as s+ch ma, hardl, be *+ali8ed as a s,stem of la(.

Indeed/ instead of a single general migration polic,/ separate s+bs,stems

of migration la( are in force for visas/ as,l+m and immigration. G

Moreover/ internal migration 4i.e. bet(een EU Member States5 is governed

b, Internal mar!et la( and EU citi9enship la( and constit+tes/ therefore/ a42 Article B@J of the D+tch ?ode on ?riminal la(.43 Even tho+gh at the level of polic,/ initiatives s+ch as the ?ommission3s 21lobal Approachto Migration and Mobilit,3 4?%M 4B@5 have been developed andadopted/ no s+ch an integrated approach to migration e0ists at the level of legislation. Thelatter Pact contains a call for concrete meas+res in relation to a set of common principleslabelled as Hbasic political commitments 4S. ?arrera and E. 1+ild/ The $rench Presidenc,3sE+ropean Pact on Immigration and As,l+m6 Intergovernmentalism vs. E+ropeanisation)Sec+rit, vs. #ights)/ (EP4 Polic) Briefs September B@@>/ no. < @/ p. 5. %ne of the mainreasons for the lac! of s+ch an overall legal s,stem lies in the range of legal bases thatma, be applied to reg+late migration iss+es.

16


17/28

complete separate s,stem of la( of its o(n. In this section/ I (ill foc+s on

e0ternal migration/ i.e. the policies in migration from third co+ntries.

$ollo(ing the transfer of migration policies to the ?omm+nit, pillar after

the entr, into force of the Treat, of Amsterdam/ the EU legislat+re has

adopted a (ide range of legislation. ?haracteristic of EU migration

legislation is that it reg+lates speci8c t,pes of migrants or sit+ations.

1ro+ps s+ch as researchers/ GG EU famil, members GJ/ seasonal (or!ers GC

and as,l+m see!ers G are all governed b, speci8c sets of r+les. The foc+s

in EU la( on the stat+s of migrants stim+lates the Member States to

arrange their legal s,stems accordingl, as this (ill facilitate the

implementation of EU la(. This ma,/ ho(ever/ clash (ith pre"e0isting

national s,stems of migration la(. The D+tch s,stem of migration la(

provides a case in point. The main distinction that is made in the D+tch

Aliens Act B@@@ is bet(een residence permits for an inde8nite period and

80ed periods. As a res+lt of having to implement EU la(/ D+tch migration

la( has introd+ced n+mero+s provisions regarding the stat+s of the

applicant or migrant. Th+s/ the main distinction made on the basis of

length of sta, has been p+shed to the bac!gro+nd. This change has been

*+ali8ed as a 2silent revol+tion3 of the national migration la( s,stem.G>

A second characteristic is the balance bet(een the rights of individ+al

applicants and the interests of the Member States to control and to restrict

migration. G= This balance is visible in the sim+ltaneo+s e0istence of legal

instr+ments s+ch as the #et+rns Directive and the Directive on M+t+al

recognition of E0p+lsion decisions J@ on the one hand and the $amil,

#e+ni8cation Directive and the Directive on Minim+m standards for the

reception of as,l+m see!ers J< on the other. The 8rst t(o primaril, protect

44 #eference45 #eference46 #eference47 #eference48 #eference49 The term 2balance3 is +sed here in a ne+tral (a,. This implies that no normative

7+dgement is made (hether the balance that has been str+c! is 2optimal3/ b+t simpl, thatthese interests have pla,ed a role in the polic, choices that have led to the event+al acts.%bvio+sl,/ there has been a lot of debate on the rightness of these choices.50 ?o+ncil Directive B@@ Ma, B@@< on the m+t+al recognition of decisions on

the e0p+lsion of third co+ntr, nationals.51 ?o+ncil Directive B@@ F=FE? of B :an+ar, B@@ la,ing do(n minim+m standards for thereception of as,l+m see!ers.

17


18/28

Member States3 interests to control migration o(s/ (hereas the latter ; at

least at 8rst sight ; primaril, protects the rights for individ+al third co+ntr,

nationals. et/ a closer loo! at these latter legislative acts reveals that the

balance bet(een Member States3 and individ+als3 interests has in fact

been incorporated (ithin these individ+al acts as the, also contain

provisions in the interests of the Member States3 interests to control

migration. The $amil, #e+ni8cation Directive contains indeed a n+mber of

conditions for individ+als to compl, (ith/ some of (hich are fac+ltative for

the Member States. ?onversel,/ the #et+rns Directive contains provisions

to protect the principle of non5refoulement / the best interests of the child/

the right to famil, life and d+t, to ta!e into acco+nt the state of health of

the third co+ntr, national concerned 4article J of the Directive5. This

directive ma,/ th+s/ e*+all, been seen as a balance bet(een the interests

of individ+als and controlling migration. %bvio+sl,/ the impact of EU la( is

partic+larl, felt at the national level if Member States prefer a di erent

balance in the protection of individ+als3 rights and the control of migration

o(s than provided for b, EU legislation.

A third characteristic of EU migration la( is the strong in +ence of

international la(/ especiall, international ref+gee la(. %bvio+sl,/ thiscreates partic+lar comple0ities (hen assessing the impact of EU la( on

national legal orders. S+bstantial parts of EU as,l+m la( ma, be seen as

an elaboration of international treaties and agreements. JB The e ects of

s+ch legislation on national legislat+res m+st be (eighed di erentl, in

light of the fact that Member States part, to s+ch international

agreements are alread, s+b7ect to the obligations laid do(n therein.

The ne0t step is to vie( concrete legislation in the 8eld. Again/ thefollo(ing is not intended to create a comprehensive anal,sis of all

legislation in the 8eld. #ather/ a single legislative act is anal,9ed in closer

detail to reveal (hat factors determine legislative impact on the Member

States. The $amil, #e+ni8cation Directive is one of the most important

legislative instr+ments in the 8eld/ b+t has also e0tensivel, been anal,9ed

52 See for a comparison ?ostello VVV

18


19/28

as to its nat+re/ its e ects in the Member States and its relation to other

legislation in the 8eld. J

The 8rst observation is that the right (hich is the central element of this

directive/ the right to famil, re+ni8cation/ is not established b, this

directive itself/ JG b+t is based on pre"e0isting international provisions 4most

notabl, articles > and


20/28

less favo+rabl, than EU citi9ens or third co+ntr, nationals. C@ Articles and

> of the directive list a n+mber of conditions that Member States ma,

impose on sponsors 4 inter alia accommodation/ ins+rance and means of

s+bsistence5 as (ell as on their famil, members 4most notabl, integration

re*+irements5.

The directive contains vario+s minim+m provisions/ allo(ing the Member

States to p+rs+e more liberal immigration policies. The, ma, e0tend the

gro+p of relatives eligible for famil, re+ni8cation to incl+de dependent

parents/ +nmarried ad+lt children and +nmarried partners 4article G.B of

the Directive5. The Directive/ f+rthermore/ contains a general provision

enabling the Member States to adopt or maintain more favo+rable

provisions 4article J 5. More discretion for national a+thorities is fo+nd in

article


21/28

polic, choices. In consideration C@ of the 7+dgment/ the E?: arg+es6

H:oin% be)ond those rovisions 4Tvdb6 i.e. the provisions of the vario+s

international legal instr+ments5/ Article !1# of the ;irective im oses

recise ositive obli%ations& $ith corres ondin% clearl) de+ned individual

ri%hts& on the 0ember 4tates& since it requires them& in the cases

determined b) the ;irective& to authori e famil) reuni+cation of certain

members of the s onsor


22/28

The third area to be anal,9ed here regards the Services Directive. C

%bvio+sl,/ this instr+ment concerns onl, a single legislative instr+ment at

the EU level/ b+t one (ith a (ide scope of application and th+s a ecting

the Member States in vario+s policies the, p+rs+e. Services constit+te

indeed a signi8cant part of national economies and of the econom, of the

EU as a (hole as (ell. +t the adoption of the Directive has also raised

concerns in the Member States/ e.g. regarding the ris! of social d+mping. CG

Th+s/ the adoption of the directive has been received (ith e0tensive

political and p+blic attention.

Several !e, sectors have been e0cl+ded from the scope of application of

the Directive/ partl, in reaction to the concerns that (ere raised. Some

sectors/ s+ch as the 8nancial sector and the transport sector/ have been

e0cl+ded beca+se sector"speci8c EU legislation being applicable in these

8elds. %ther sectors have/ ho(ever/ been e0cl+ded to respect national

a+tonom,. Notable e0amples are health care social services in the areas

of ho+sing/ childcare and s+pport to families and persons in need and

a+diovis+al services and ta0ation. Services of general interest are

e0cl+ded also in a more general sense.CJ

$+rthermore/ several sectors of national polic, have been granted

2imm+nit,3 from the Services directive/ s+ch as social sec+rit,. CC In

addition/ the Services directive is limited to reg+lating cross"border

activities/ leaving the Member States the discretion to reg+late p+rel,

internal matters. It ma,/ ho(ever/ be +ndesirable to s+b7ect p+rel,

domestic sit+ations to a di erent legal regime than similar sit+ations that

happen to incl+de a cross"border element. This is (h, some MemberStates have opted to e0tend the scope of application of speci8c elements

of the Directive to cover p+rel, internal sit+ations as (ell. Internal

providers of services ma,/ th+s/ bene8t from speci8c elements of the

63 So+rce %-cial :o+rnal64 Directive B@@CF


23/28

Directive s+ch as administrative simpli8cation and the single point of

contact. C This remains/ ho(ever/ a national polic, choice.

A less noticeable aspect of the Services Directive is that is has onl, to a

limited e0tent created ne( legal norms. The Directive codi8es e0isting la(/

most notabl, provisions on free movement of services and establishment

from the T$EU and the interpretation of these provisions b, the E+ropean

?o+rt of :+stice. The provisions that lie at the basis of the Services

Directive had/ therefore/ alread, been developed before the adoption of

the Directive. Article


24/28

The position of a legislative act (ithin the broader frame(or! of EU la( is

th+s an important factor to consider (hen assessing the in +ence of EU

la(.

The Services Directive incl+des/ ho(ever/ not onl, a codi8cation of

e0isting la(. it contains an important s+bstantive innovation. Article


25/28

proceedings/ at the legislative level3. Admittedl,/ s+ch a profo+nd impact

on national la( (as onl, fo+nd in 1erman,/ b+t also in a n+mber of other

Member States speci8c changes to administrative la( in general have

been reported. G Third/ the Services Directive has led to amendments of

e0isting legislation 4or even the adoption of ne( legislation5 in speci8c

sectors. Partic+larl, (orth observing is the (ide range of polic, areas

a ected b, the Directive. In p+rel, domestic conte0ts/ s+ch polic, sectors

normall, stand completel, apart. In the UK/ inter alia the follo(ing acts

needed to be amended6 the Administration of :+stice Act / the ?are

Standards Act B@@@/ the Ed+cation Act B@@B/ the ?ompanies Act B@@C/ the

Emplo,ment Agencies Act


26/28

Directive5 is another e0ample. These aspects of the Directive force

administrative a+thorities to (or! in a speci8c 4possibl, di erent than

before5 (a,. This ma, even lead to a restr+ct+ring of the set"+p of these

a+thorities. Ohereas EU la( often contains s+bstantive norms onl,/ the

Services Directive ta!es a f+rther step b, incl+ding s+ch aspects as (ell.

Man, of the disc+ssions 4both in political and academic circles5 paid more

attention to other aspects of the Directive/ b+t the impact of these

instit+tional elements ma, not be +nderestimated.

The e0ample of the Services Directive/ th+s/ con8rms the signi8cance of

the scope of application and the e0istence of national discretion as

relevant factors for assessing the EU3s legislative impact. Moreover/ if EU

legislation contains not onl, s+bstantive norms b+t also provisions that

re*+ire instit+tional changes/ the impact of s+ch legislation ma, be higher.

6. Conclusion

--- to be further elaborated ---

Despite having received *+ite some scholarl, as (ell as political attention/the *+estion (hat the impact of EU legislation is on the Member States

remains an intricate and +ndecided one. &+antitative research has given

indications/ b+t these m+st be val+ed in light of the methodolog, from

(hich the, have been developed. 1eneral legal tools/ (hich ma, be seen

as the 8rst step in developing a more *+alitative approach have their

dra(bac!s as (ell. It has proved to be especiall, di-c+lt to lin! the t,pe

of legal instr+ment to the impact of EU la( as both reg+lations and

directives di er m+ch in scope/ level of detail/ and the degree of discretionleft to the Member States. The legal basis reveals in some cases more on

the impact of EU la( 4e.g. in the areas of environmental polic, and

criminal cooperation5 b+t other legal bases/ especiall, the harmoni9ation

of the internal mar!et/ ma, be applied to a broad arra, of legislative acts.

The t,pe of harmoni9ation is not a ver, helpf+l factor either/ mainl,

beca+se it is often di-c+lt to identif, (hat the e0act t,pe of

harmoni9ation is.

26


27/28

The ne0t step ta!en in this paper (as an anal,sis of three polic, areas of

EU legislation and identif, (hat factors emerge from these areas as

relevant for assessing the impact on Member States.

The anal,sis of speci8c polic, 8elds has also indicated that/ besides the

above mentioned factors/ a n+mber of other more speci8c factors a ect

the impact of EU la(. The 8rst factor is the scope of EU legislation. The

impact of legislation containing ver, speci8c sectoral norms m+st be

(eighed di erentl, than hori9ontal provisions a ecting a large n+mber of

individ+als and (ide arra, of polic, areas. Prime e0ample regarding the

latter is the Services Directive. As EU legislation often involves a

codi8cation or a consolidation of e0isting legislation/ EU la( has not

al(a,s s+bstantive implications for societ, and individ+als. The *+estion

(hether EU la( is ;s+bstantivel," ne( is/ therefore/ relevant. ?losel,

lin!ed to this is the *+estion (hether EU la( is ne( in the Member States.

If legislation alread, e0ists in a Member States onl, the origin changes

rather than its e ects.

A factor re*+iring a speci8c and detailed anal,sis/ regards the degree of

polic, discretion that is left to the Member States. The meas+re of nationaldiscretion not onl, depends on the te0t of the act concerned/ b+t also on

its place (ithin the broader s,stem of EU la( and its ob7ectives/ and/

+ltimatel,/ on the interpretation of the E+ropean ?o+rt of :+stice. The

e0istence of national discretion ma, be e0plicit 4e.g. b, specif,ing options

for the Member States to choose from5 b+t ma, also be more implicit.

Moreover/ national discretion ma, concern the f+rther eshing o+t of EU

ob7ectives in f+rther detail b+t it ma, also allo( the Member States to

balance p+blic interest to an e0tent provided for b, the EU legislative act. The $amil, #e+ni8cation Directive is an e0ample of the latter. Th+s/ the

iss+e of national discretion in EU legislation is a complicated one (hich

deserves more scholarl, as (ell as political attention.

A last factor regards the nat+re of the norms. EU la( is traditionall,

foc+sed at adopting s+bstantive norms and ta!es a ca+tio+s stand

regarding instit+tional provisions. Nevertheless/ the E+ropean legislat+re

has concl+ded in man, cases the adoption of s+ch provisions to be

27


28/28

assessing the impact of eu legislation on member states. national discretion

Documents