Legal Transposition Research Articles

The Communicative Function of Legal Transplants in Mixed Legal Systems

The article analyzes the definition of the communicative function of law from the point of view of legal communication between the dependent legal systems of the former colonies. In this context, the “evergreen issue” arises about legal transplantation, the legal transfer of norms and institutions and reception of nomadic legal constructs. The modern comparative lexicon uses three types of metaphors related to the interaction of legal systems and their law hybridization: anthropomorphic, communicative and mechanical metaphors. Among the best-known cases of legal transplantation, the authors pay attention to the spread of codes, the diffusion of common law, and the emergence of mixed legal systems. They explore the positivist concept of “legal transplants,” which appeared in comparative discourse thanks to the theory of Alan Watson. The article discusses the comparative opposition to this theory — the so-called cultural concept of legal transplants (transferists vs. culturalist debate), as well as the musical metaphor “legal transposition” and the process of diffusion of law in dependent legal systems. The practice of legal transplants in mixed common law systems and their application in practice are analyzed in national jurisdictions. The article shows criminal legal bijuridism and the process of the so-called “diffuse codification” in India, Canada, Australia and other British former colonies, which is an example of codistics communication of dissimilar political and legal cultures and circulation of model codes between them. In conclusion, attention is drawn to the discourse of the effectiveness, applicability and effectiveness of transplants. It is concluded that the success — failure discourse of legal transplants depends on the degree of communicativeness of transplanted and receptive constructs, their ability to “speak” in an understandable language for the host cultural environment of law.

Revisiting Policy Preferences and Capacities in the EU: Multi‐level policy implementation in the subnational authorities

AbstractResearch on multi‐level implementation of EU legislation has almost exclusively focused on the national level, while little is known about the role of subnational authorities. Nevertheless, it is a prerequisite for the functioning of the European Union that all member states and their subnational authorities apply and enforce EU legislation in due time. I address this research gap and take a closer look at the legal transposition process in the German regional states. Using a novel data set comprising detailed information on about 700 subnational measures, I show that state‐level variables, such as political preferences and ministerial resources, account for variation in the timing of legal transposition and repeatedly lead to subnational delay. To conclude, the paper addresses the role of subnational authorities in the EU multi‐level system and points to their interest in shaping legal transposition in order to counterbalance their loss of competences to the national level.

Exemptions of the EU Water Framework Directive Deterioration Ban: Comparing Implementation Approaches in Lower Saxony and The Netherlands

The sustainable use of precious water resources requires effective water management. In the European Union, water management is mainly regulated by the Water Framework Directive (2000/60/EC), introducing an integrated river basin management approach. As a European Union (EU) directive, the legislation needs to be implemented in the Member States, entailing not only legal transposition but also application and enforcement. One major instrument introduced by the Water Framework Directive is the environmental goal achievement obligation of article 4 WFD, containing also a deterioration ban with several exemptions. We compare the transposition, application, and enforcement of the exemption of permanent deterioration (art. 4 (7) WFD) in the context of the environmental goal achievement obligation regime in Lower Saxony (Germany) and the Netherlands. The study rests on a comparative legal analysis of literature, river basin management plans, and jurisprudence. Although based on the same EU directive wording and case law of the European Court of Justice, the deterioration ban and the exemption of permanent deterioration are implemented rather differently. While the deterioration ban is predominantly understood as planning obligation in the Netherlands, it became an important permit requirement in Lower Saxony since the Weser ruling of the European Court of Justice.

Indicators for Monitoring Implementation of EU Equality Directives

Abstract The present article discusses the usefulness of indicators in monitoring not only the legal transposition but also the practical implementation of the two Equality Directives adopted in 2000. It focuses on those provisions of the Directives which have assigned a particular role to ngos, both in reacting to discrimination as well as in preventing discrimination and promoting equality. Indicators have been developed on the basis of a comparative review of transposition and implementation, including case studies on Romania, Hungary and Croatia. Considering the great potential of ngos in contributing to achieve the aims of the Directives and the current worrying trends as to how they are supported in (or obstructed from) taking up their role, the article proposes using these indicators not only in the pre-accession context but also for regular monitoring of all EU member states.

Moving beyond (non-)compliance: the customization of European Union policies in 27 countries

ABSTRACTEuropeanization research often neglects that the implementation of European Union (EU) policy results in diverse national outcomes, even if member states comply with EU law. Such fine-grained Europeanization patterns have been explored as ‘gold-plating’ and ‘customization’. This contribution builds and expands on this research to propose a general conceptualization and measurement of customization as the changes that provisions of EU Directives undergo in their regulatory density and restrictiveness during legal transposition. Using unique data on the customization of EU directive provisions from two policy areas in 27 countries, our empirical analysis reveals distinct changes in density and restrictiveness, pronounced policy-specific and state-level customization patterns. The findings illustrate how national customization strategies often follow specific EU regulatory logics in different integration contexts. We outline implications for future research on the causes and consequences of the inherent diversity of EU implementation regarding dimensions of customization, issues of legitimacy and effectiveness.

Ship-Generated Waste and Cargo Residues Institutional Framework and Management in Albania

Approximation of the Acquis into national legislation is an iterative process involving institutional arrangements and adoption of specific binding legal measures (quality and technical standards, testing and notification requirements, etc.) and country-specific decisions on discretionary and suggested legal measures. Having the candidate status to EU entrance and being a costal country Albania has to handle important issues as water quality and management and other issues linked with. The Directive on port reception facilities for ship-generated waste and cargo residues1 pursues the same aim as the MARPOL Convention 73/782 on the prevention of pollution by ships, which Albania has signed and ratified, and the Ballast Water Management Convention: to reduce discharges of ship-generated waste and cargo residues into the sea. The Directive focuses on ship operations in European Union ports obliging ports’ authorities to establish adequate reception facilities and to require that ships using these facilities, while the MARPOL Convention regulates discharges by ships at sea. The Directive addresses in detail the legal, financial and practical responsibilities of the different operators involved in delivery of ship-generated waste and cargo residues. The present article presents the approximation process consisting of legal transposition, practical implementation, and enforcement of the EU Directive 2000/59/EC in Albania. DOI: 10.5901/ajis.2016.v5n3s1p368

Beyond legal transposition: regulatory agencies and de facto convergence of EU rail liberalization

ABSTRACTNotwithstanding its maturity, the literature on European Union (EU) compliance tends to overlook the implementation stages beyond the legal transposition of single-market regulatory reforms. This article explains the cross-national variation in the actual implementation of the EU regulatory reform of rail market among the EU-15. The empirical findings highlight the importance of the establishment of national regulatory agencies. Member states with an independent regulatory agency converge faster towards the EU model of liberalization. This conditional effect of EU railway harmonization is enhanced by the presence of new entrants that activate the institutional functions of national independent agencies as enforcers of EU legislation.

Legal framework and criteria for effectively coordinating public participation under the Floods Directive and Water Framework Directive: European requirements and German transposition

The paper investigates the legal framework for coordinating public participation in flood risk management and river basin management. It analyses the requirements of the Water Framework Directive, the Floods Directive, and the Strategic Environmental Assessment Directive from a comparative perspective and elaborates criteria for effective coordination of consultation procedures. The assessment of European requirements against these criteria reveals leeway for specification in national legal transposition. The extent to which Germany has made use of this leeway for coordination of consultation and participation is examined.

Competitive Dialogue in Portugal and Spain

The competitive dialogue procedure is a new public procurement award procedure first introduced by the Directive 2004118 for the tender of particularly complex contracts, when contracting authorities consider that the use of the open or restricted procedures do not allow for the contract to be tendered. It is not intended to be adopted freely as the open or restricted procedures, but contracting authorities may use it only when the need arises and specific grounds for its use are fulfilled. The procedure was introduced with the stated objective of increasing the flexibility of procurement, which had been already identified as a shortcoming of previous existing EU procurement framework. This thesis studies how the competitive dialogue has been implemented in Portugal and Spain. It covers both the legal transposition and aspects of its practice in these countries., through the use of empirical research methods. Through his research, the author has found that the procedure was implemented very differently in Portugal and Spain with consequences on its use. This study has tried to highlight similarities and differences in the transposition, illustrate how the competitive dialogue is being used in Spain and explain why it is being used only sparingly in Portugal.

Before and after Lisbon: legal implementation as the ‘Achilles heel’ in EU counter-terrorism?

Implementation has often been described as a key weakness affecting European Union (EU) counter-terrorism. However, this view is often adopted as a given and there has not been so far a systematic examination of the degree to which this represents an obstacle to the effectiveness of the EU response. This paper aims to contribute towards this goal through the use of primary sources in the study of the legal transposition of counter-terror instruments into national law, a key stage in the implementation process. It shows the presence of major implementation delays in this policy sector but, importantly, also significant cross-national variation with regards transposition failure associated with the administrative endowment of the individual member states. Furthermore, the mechanisms deployed by the Union to encourage a fluid implementation of European measures are critically evaluated and the potential impact in the process of the institutional transformations brought about by Lisbon is also examined.

Transposition of EU social policy in Poland: are there different `worlds of compliance' in East and West?

Recent studies on the implementation of EU social policy directives in the EU-15 demonstrate a considerable compliance gap. These findings lead to the question: What about the new member states? Will Eastern enlargement contribute to a further widening of this gap? This article provides a systematic comparison of the legal transposition of six selected EU social policy directives in Poland with transposition (problems) of the same directives in the EU-15. The article shows that policy effects of the EU social acquis in Poland were not higher than in the old member states. Extensive EU monitoring has contributed to an extremely high transposition performance of Poland. Recent research on compliance distinguishes three `worlds of compliance' in the EU-15. Analysing the legal transposition of EU social policy directives in Poland shows that, as yet, there are no signs of a particular fourth `Eastern world of compliance'.

Legal Transposition and Implementation Frameworks for Lithuanian Approximation of EU Environmental Law

In March 1998 the European Union (EU) formally launched a negotiation process by which to further enlarge the EU, having, in the preceding years, invited several former Soviet-influenced countries from Central and Eastern Europe (CEE), along with Cyprus, Malta and Turkey, to participate in accession to the EU if they so wished. This is the second of two articles concerned with Lithuania’s accession to the EU, the process of approximating EU environmental law and the legislative intricacies involved therein. The first paper critiqued the process of enlargement of the European Union from a largely pragmatic legal perspective through a legal case-study examination of Lithuania’s efforts in approximating the environmental acquis into national law. Lithuania was an accession state from Central Europe and acceded to the EU on 1 May 2004. The first paper provided insight into and guidance upon the process of the approximation of environmental law as it may relate, or has related, to other accession countries. It highlights the practical steps and the route of accession to the EU along with the legal requirements contained therein.This second paper focuses more specifically upon the actual implementation and related strategic aspects revealed in Lithuania’s efforts to approximate EU environmental law by reference to best practice, as developed by the lead author, for the EU.

Lecciones aprendidas en el control del tabaquismo en España

The growing involvement in Spain by civil society in the demand for tobacco control policies has been notable. The basis for the creation of the National Committee for Tobacco Prevention was established in 2004. At the end of that year, an intensive intervention was aimed at specifying, in law, the regulatory actions in the National Plan for Tobacco Prevention. This would facilitate a qualitative leap, taking advantage of the legal transposition of the European directive on advertising. With broad political consensus, the Law 28/2005 was established regarding sanitary measures for tobacco and the regulation of the sale, supply and consumption of tobacco products. The objective stated in this law is to prevent the initiation of tobacco consumption, especially among youth, guarantee the right of non-smokers to breathe air free from tobacco smoke and make quitting this habit easier for people who wish to do so. The main issues included are the prohibition of tobacco advertising and the limitation of tobacco consumption in common work areas and enclosed public spaces. The new law has replaced the previous rules in Spain, which were some of the most permissive in the European Union in terms of tobacco sales, advertising limitations and restrictions on smoking locations. It is clear that there is still much to be done. At this time, more social support needs to be generated in favor of the new regulations, and an important effort needs to be made to educate the public.

The implementation of EEC directive 85/337/EEC on the effects of certain public and private projects on the environment in Ireland—A perspective

In July 1988, all member states of the European Community were required to have implemented the Council of the European Communities Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment. In Ireland, the Directive was implemented by way of an internal circular to local county councils, which were designated as local competent authorities under the Directive. Much confusion has been caused by this circular, as it is not a legal transposition of the Directive into Irish law. In addition, the circular adverts to only private developments and developments undertaken by local authorities themselves; it does not appear to address the great range of public projects such as turf development or energy projects. These issues are examined from the point of view of the existing legal requirements in Ireland with regard to environmental impact assessment (EIA) and with reference to the Directive itself. It is concluded that the Directive will have little effect in Ireland as it is currently being implemented.