GENERAL SECRETARIAT OF THE GOVERNMENT OFFICE FOR INTERNATIONAL AND EUROPEAN AFFAIRS

Transcription

1 ΠΡΟΚΛΗΣΕΙΣ ΚΑΙ ΔΥΣΚΟΛΙΕΣ ΤΗΣ ΔΙΑΔΙΚΑΣΙΑΣ ΕΝΑΡΜΟΝΙΣΗΣ- CHALLENGES AND DIFFICULTIES OF THE EU LAW TRANSPOSITION PROCESS Eleni Martsoukou Head of Office 24/5/2013 1

2 Unlike the EC Treaty, no major changes have ever been made to the Euratom Treaty, which remains in force. The European Atomic Energy Community has not merged with the European Union and therefore retains a separate legal personality, while sharing the same institutions. The Treaty amending the EU and EC Treaties, which was signed in December 2007, changed certain provisions of the Euratom Treaty via its "Protocol No 12 amending the Treaty establishing the European Atomic Energy Community". These changes are limited to adaptations to take account of the new rules established by the amending Treaty, particularly in the institutional and financial fields The institutional structure of the Euratom Treaty is broadly similar to that of the EEC Treaty and is built around the same "institutional triangle" (Council, Commission and European Parliament). Thus, the fulfilment of the tasks entrusted to the Community is ensured not only by the European Parliament, the Commission and the Council, but also by the Court of Justice and the Court of Auditors. Each institution acts within the limits of the powers conferred on it by the Treaty. The Council and the Commission are assisted by an Economic and Social Committee acting in an advisory capacity 24/5/2013 2

3 Regulations Key Instruments of EU law Direct Applicability (No transposition obligation) Same legal provisions throughout the European Union Full Application in All Member States Directives -Dual objective to ensure uniformity of EU law and to take into account the different legal environment and administrative structures - Obligation of the member states to achieve the objectives of the directives -Wide discretion of the national authorities to decide how the agreed EU objective is to be incorporated into their domestic legal systems - Respect for transposition deadlines -Direct effect of the Directive in case of non-timely transposition 24/5/2013 3

4 Decisions Key Instruments of EU law -Possibility of EU institutions to take measures binding on particular individuals, undertakings or Member States -Binding in its entirety for whom it is addressed to -Individual applicability Delegated Acts (A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act) Respect of the delegation of power and its limits Implementing Acts (Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer supplementing powers on the Commission, or, in duly justified specific cases on the Council) 24/5/2013 4

5 Transposition Process in Greece Law 1338/1983 (obligatory co-signature of the now Minister for Development, Competitiveness, Infrastructure, Transport and Networks)-In need of revision Valorization of existing national legislative and administrative processes and structures Observance of EU law (primary and secondary) and of the jurisprudence of ECJ Non possibility of the member state to enact national acts which contradict and contravene the EU law under transposition 24/5/2013 5

6 Transposition of EU law into Greek law Acts of Parliament (cumbersome but thorough process: opengov consultation, impact assessment report, Central Accounting Office, Central Lawmaking Committee, Parliamentary Committees, Deliberation in Plenum) Presidential Decree (legality check by the Council of State: proposal of the competent Minister, delegation of power by law, transposition within the limits of the delegation of power by law, processing by the Council of State) Ministerial Decisions-Joint Ministerial Decisions (delegation of power by law or by presidential decree, norms of specific, local, detailed or local character) 24/5/2013 6

7 Late starts Bottlenecks Complicated legislation, Normative Overflow and Overlaps Co-Competence of many ministries and national agencies of transposition Multiple checks of no substantial value (example: all co-competent ministries plus the President of the Republic for presidential decrees) Lack of Communication and Coordination between the competent national agencies Lack of Effective Negotiation before the EU legislation is enacted in order to represent the national interests 24/5/2013 7

8 Infringement Proceedings Commission enjoys wide power of discretion but has to ensure equal treatment of member states Articles TFEU (106 a Euratom) provide for enforcement proceedings against a Member State initiated by the European Commission or, rarely, by another Member State. The proceedings are initiated either by the Commission on its own motion or by a complaint lodged by a physical or legal person. The proceedings begin with the Commission issuing a letter of formal notice, addressed to a specific Member State. In this letter the Commission describes the alleged infringement of EU law and invites the Member State to take the necessary corrective measures and submit its observations. If the answer of the Member State does not satisfy the Commission, then the latter will issue a reasoned Opinion (article 258 TFEU), which includes a detailed assessment of the alleged breach of EU law, sets out a reasonable period for compliance by the Member State and delimits the subject matter of the dispute. If the Member State does not comply within the delimited deadline, then the Commission has the right, but not the obligation, tobring the matter before the Court of Justice of the European 24/5/ Union (article 258 TFEU)

9 Can a pecuniary penalty be imposed on a Member State and is there an upper limit to such penalty? If, after the judgment of the CJEU, a Member State fails to comply with the ECJ s judgment which concludes that the Member State has indeed breached EU law, then the Commission may initiate proceedings against the Member State pursuant to article 260 TFEU. A new judgment of the CJEU following the procedure provided in article 260 TFEU shall impose a pecuniary penalty to the Member State There are two types of pecuniary penalties to be imposed on Member States; the first type is a lump sum, which is a single, one-off sanction. The second type consists of a penalty payment, which is calculated at a daily rate applied to each day of delay in compliance of the Member State after the judgment. Although the TFEU states that a lump sum or a penalty payment can be imposed, the Court of Justice has ruled that the two sanctions can be imposed cumulatively. No upper limit for the fine is provided in the Treaty. It is calculated according to a specific formula and should be in accordance with the principle of proportionality 24/5/2013 9

10 Examples Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel. Reached the stage of the complaint but now archived (implementation through presidential decree) Council Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations (implementation through presidential decree and ministerial decision) What does the Office for International and European Affairs do? -monitor, coordinate, assist - -now implementation deficit down to 0,36% 24/5/

11 Direct Effect of a Directive It usually operates from the deadline specified for implementation of the directive (they produced similar effects to regulations after the time limit for their implementation has expired and the state has not properly or not at all implemented them. However the directive must be sufficiently clear, precise and unconditional to be capable of being applied directly by a national court) State liability: the Member state is obliged to pay compensation for not implementing timely, fully and correctly EU law (The action for compensation is provided within the framework of domestic legal systems, with varying procedural and substantive rules on matters such as time limits, causation, mitigation of loss, and assessment of damages) 24/5/

12 The Way Forward Electronic inter-ministerial system of monitoring and surveillance of the implementation of EU law (i.e. electronic signatures) Enhanced cooperation e.g. Council of State and Presidency with line ministries when technical questions are of essence. Codification, Consolidation, Clearance Application of Better Regulation Tools Demarcation of competence of all national agencies involved in the transposition process. Q & A? Contact oiea@ggk.gr Tel: THANK YOU FOR YOUR ATTENTION!!! 24/5/