Obligations to Consult EU Institutions on National Draft Laws: A Dogmatic Analysis

Abstract

Since the establishment of the European Union, Member States do not have true free reign over their legislative activity. The influence from ‘Brussels’ on new national laws has become stronger with the passage of time. Over the years, the Contracting States and the Union legislature have established more and more obligations referring to national legislatures. The most common are the well-known duties to transpose directives into national law. These EU legal acts contain substantive law, rights and/or obligations for individuals, and thus encompass material provisions that can be subject to a transposition process. However, this is not the only way to influence national legal orders. There are also procedural obligations in EU law that do not contain any substantive requirements that national laws ought to foresee. This article deals with the kind of formal obligations that compel Member States to consult EU institutions on draft laws during their national legislative procedures (hereinafter: obligations to consult). These obligations are of a procedural nature, with the outcome of the consultation procedure resulting in substantive law. EU law has always contained provisions like the obligations of Member States to consult EU institutions on their own national legislative procedures. In this regard, EU law shapes national legislative procedures, and the EU institutions influence substantive national law. EU institutions have expertise concerning the impact of new national laws on the internal market, which they can estimate on a Europe-wide scale. A single Member State or its institutions cannot examine the effects of national law on other Member States’ legal orders or on Europe as a whole. That is why it is dependent on the know-how of EU institutions. Their expertise and ability to assess the Europe-wide effect of national law makes up the background of the great impact of those institutions on national draft laws. This article analyses the impact and possible consequences of a Member State’s violations of obligations to consult. It introduces new terms, such as obligations to consult EU institutions on national draft laws and the consultation act, that are necessary in order to reflect the great importance of this category. General comments on obligations to consult refer also to the new mechanism introduced by the Two-Pack Regulation.