Edited by Mads Andenas and Camilla Baasch Andersen
Chapter 27: Technical Considerations in Harmonisation and Approximation: Legislative Drafting Techniques for Full Transposition
Helen Xanthaki* WHY CONSIDER THE TECHNICALITIES OF TRANSPOSITION? Legal harmonisation is by no means an easy task. It requires exceptional abilities to follow all aspects and developments of EU law, including the ever increasing and ever dynamic interpretation and application of EU legislation by the ECJ; it requires in-depth understanding of the will of the EU legislator as a means of interpreting the commonly vague and often ambiguous provisions of EU legislative texts; and it requires an excellent understanding of legislation and its functioning at the national level, as a means of making legislative choices which can and will work within the holistic and dynamic sphere that is the national legal system. Legal harmonisation in the pre-accession era does not require different solutions from legal harmonisation in the post-accession, the membership, era. Admittedly, at the pre-accession time the national authorities of aspiring states are now required to meet the additional requirement of the 1995 Madrid European Council, which demands the introduction of the necessary administrative structures for the ultimate enforceability of the acquis. The additional Madrid criterion for accession is interpreted as a command for effective and enforceable transposing legislation,1 which is a far cry from the past requirement to transpose EU law as and how the aspiring Member State saw fit. However, the Madrid criterion is by no means another unfair order imposed by the strong EU on the vulnerable aspiring Member States. The Madrid criterion is a mere reflection, or in fact an expression, of the final...
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