Explanatory Memorandum - dcfta.md · Web viewAnnex XI (environment) illustrates this well by requiring the Republic of Moldova to adopt national legislation and designate competent

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Annex 14.4: Approximation Guidelines

Practical guidelines for legal approximation: Particular requirements from the Association Agreement as adjusted using the outputs of the

EU funded project “Project to support the coordination of justice sector reform in Moldova”

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Table of content

1 Introduction into purpose and scope of these guidelines..............................................31.1 Complementing the Legal drafting handbook and the Methodology for law approximation 31.2 Use of examples........................................................................................................................3

2 Introduction into the Association Agreement................................................................32.1 Provisional application of the Association Agreement...........................................................42.2 Legal character of the approximation requirements – difference to the PCA........................42.3 Non-fulfilment of obligations...................................................................................................5

3 What means “legal approximation”?..............................................................................53.1 The difference between transposition and approximation......................................................53.2 Implementation and enforcement.............................................................................................63.3 Different levels of approximation............................................................................................7

4 General approximation requirements............................................................................84.1 Dynamic approximation...........................................................................................................94.2 Association Council..................................................................................................................94.3 Association Committee.............................................................................................................94.4 Monitoring and assessment of the approximation process....................................................10

5 Additional approximation requirements in the DCFTA (Title V)............................105.1 Repeal of inconsistent domestic law......................................................................................115.2 Assessment of approximation progress in DCFTA areas......................................................115.3 Developments relevant to approximation in DCFTA areas..................................................12

6 Specific legal approximation requirements and mechanisms in selected DCFTA chapters.............................................................................................................................126.1 Technical barriers to trade (TBT)..........................................................................................136.2 Sanitary and phytosanitary measures (SPS)..........................................................................156.3 Establishment, trade in services and electronic commerce...................................................176.4 Public Procurement.................................................................................................................186.5 Competition.............................................................................................................................196.6 Inconsistent use of terms in AA / DCFTA.............................................................................20

7 Practical advice on approximation................................................................................207.1 The meaning of “codification”, “recast” and “consolidation” of an EU Act.......................207.2 Mandatory / optional provisions for approximation..............................................................227.3 Transposition techniques used by EU Member States..........................................................227.4 Proper use of Table of Concordances....................................................................................23

1, Piata Marii Adunari NationaleOffices no. 369-370Chisinau, MD-2033Republic of Moldova

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1 Introduction into purpose and scope of these guidelines

These guideline will explain the challenge of legal approximation in relation to the special requirements for law makers under the Association Agreement (hereinafter: AA or Agreement) between the European Union (EU) and the Republic of Moldova. The focus will be on Title V of the agreement, which is on “trade and trade related matters”. Within these guidelines the different levels, types and mechanisms of legal approximation under the AA will be explained with a particular focus on the DCFTA Title.

1.1 Complementing the Legal drafting handbook and the Methodology for law approximation These guidelines are supposed to complement two other guides, namely the “Methodology for law approximation in the Republic of Moldova” of 2010 (hereinafter: Methodology) and the “Handbook on legal drafting” (hereinafter: Handbook), which focus on methodological aspects of law making / law drafting.

Approximation, as explained in more detail below, is a special case of law making. This means that all aspects addressed in the Handbook have to be taken into account when approximating Moldovan to EU legislation. Besides, the Methodology contains a number of valuable recommendations on legal approximation in particular in Chapter IV which are not reprinted here. However, some particular parts of the Methodology are dealt with here as well, for instance the use of “Tables of Concordances” – which play an important role in the approximation process.

Articles referred to in these guidelines are all from the AA unless referred to with the abbreviation of the law they come from.

1.2 Use of examples

A number of illustrative examples are presented to explain the practical consequences of certain provisions under the AA / DCFTA.

Two examples have been selected as sources for the illustration of approximation challenges for the Republic of Moldova, namely Regulation (EC) No 765/2008 [...] setting out the requirements for accreditation and market surveillance relating to the marketing of products (hereinafter: “Accreditation Regulation”) and Directive 2012/30/EU on coordination of safeguards which, for the protection of the interests of members and others [...], in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (hereinafter: LLC safeguards Directive).

In addition, given the particular experience of the author of these guidelines in the field of environmental legislation other examples addressing approximation challenges of the Republic of Moldova stem from that area.

2 Introduction into the Association Agreement The Association Agreement (AA) aims to deepen political and economic relations between MD and the EU, and to gradually integrate MD into the EU Internal Market. It includes the creation of a Deep

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and Comprehensive Free Trade Area (DCFTA), which is a core part of the Agreement; its provisions on “trade and trade related matters” make up more than 50% of the main body of the entire AA 1.

The AA also constitutes a reform agenda for the Republic of Moldova, based on a comprehensive programme of approximation of the Republic of Moldova's legislation to EU norms and standards. By approximating its legislation to the trade related EU legislation in accordance with the commitments set in the DCFTA, the Republic of Moldova will be integrated to a large extent into the EU internal market without being an EU Member State.

The AA foresees substantial reforms to be initiated in the Republic of Moldova in a number of key areas such as energy, transport, environmental protection, industrial cooperation, social development and protection, equal rights, consumer protection education, and youth and cultural cooperation.

As concerns the particular area of trade the AA offers the Republic of Moldova a framework for enhancing its trade and for economic growth by the removal of customs tariffs and quotas, and by a comprehensive approximation of laws, norms and regulations in various trade-related sectors. The legal approximation process is expected to facilitate MD's progressive integration with the EU economy.

2.1 Provisional application of the Association Agreement

On 27 June 2014, Moldova and the EU signed the Association Agreement (including the DCFTA) and Moldova ratified the agreement already a few days later, on 2 July 2014.

In accordance with Article 464 (3 and 4) through Council Decision 2014/492/EU major parts of the Agreement/DCFTA took effect provisionally on 1 September 2014, pending ratification by all EU Member States2.

This means, in particular, that the timeframes for legal approximation set in many Annexes have to be counted from the 1 September 2014!

2.2 Legal character of the approximation requirements – difference to the PCAIn the EU-Moldova Partnership and Cooperation Agreement (PCA) which entered into force on 1 July 1998 and which has been repealed through the AA (see Article 456) the Parties recognized in Article 50 “that an important condition for strengthening the economic links between the Republic of Moldova and the Community is the approximation of the Republic of Moldova's existing and future legislation to that of the Community.” According to that clause “The Republic of Moldova shall endeavour to ensure that its legislation will be gradu ally made compatible with that of the Community.” Article 50 (2) of the PCA already listed a number of priority areas in which approximation shall be achieved.

1 The main body of the AA has a total of 465 Articles. The AA is subdivided into seven Titles. The DCFTA (Title V), which is by far the most comprehensive of these Titles, encompasses Articles 143 – 412.

2 The provisional application concerns the vast majority of all AA provisions. As regards Title V (DCFTA) all provisions with the exception of Article 278 to the extent that it concerns criminal enforcement of intellectual property rights, and with the exception of Articles 359 and 360 to the extent that they apply to administrative proceedings and review and appeal at Member State level are already applicable. For further details see Council Decision 2014/492/EU of 30.08.2014.


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However, the PCA

does not contain any formal legal commitment;

does not provide any guidance on the scope and content of EU legislation to be taken as basis for approximation;

does not prescribe in any area what particular results shall be achieved;

does not prescribe any consequences in case of non-fulfilments of obligations.

In contrast to the PCA the provisions on legal approximation in the AA are legally binding in accordance with Article 448 which states:

“The Republic of Moldova shall carry out gradual approximation of its legislation to EU law and international instruments as referred to in the Annexes to this Agreement, based on commitments identified in this Agreement, and according to the provisions of those Annexes.”

The Annexes to the Agreement stipulate precise commitments (what shall be implemented) and guide the Moldovan law-maker. They also set a time schedule for approximation which is considered to be legally binding (“shall be implemented”) – although many time-lines seem over-ambitious.

2.3 Non-fulfilment of obligationsIn addition the AA foresees consequences in case of non-fulfilment of obligations. Following the dispute settlement mechanism which is regulated in Article 454, either the EU or the Republic of Moldova

“may take appropriate measures if the matter at issue is not resolved within three months of the date of notification of a formal request for dispute settlement according to Article 454 of this Agreement and if the complaining Party continues to consider that the other Party has failed to fulfil an obligation under this Agreement.” (see Article 455 (1).

However, such measures shall “least disturb the functioning of this Agreement” and they “may not include the suspension of any rights or obligations provided for under provisions of this Agreement set out in Title V” (see Article 455 (2))3.

A delay in approximation, i.e. non-compliance with a time schedule provided for in the Annexes to the AA could be considered a non-fulfilment of obligations. However, Article 453 which addresses the fulfilment of obligations does not refer to any time schedule. According to that provision the Parties shall ensure that the objectives set out in the Agreement are attained (it does not say anything like “in time”) only.

Disputes, which may eventually entail sanctioning measures relate to the “interpretation, implementation or good faith application of the Agreement” but not to a delayed approximation.

3 What means “legal approximation”?

Legal approximation as provide for in the AA and in particular the DCFTA is the main instrument to achieve economic integration of the Republic of Moldova into the market of the EU. The first question to be answered is what is actually meant by “approximation of legislation” or “regulatory approximation”?

3 With two exceptions, namely the denunciation of this Agreement not sanctioned by the general rules of international law; or violation by the other Party of any of the essential elements of this Agreement, referred to in Article 2 (general principles).

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3.1 The difference between transposition and approximation According to the Treaty of the Functioning of the EU (TFEU) EU Directives require transposition into the domestic legal system of the EU Member State in order to become effective. Directives, as the main instrument of EU legislation, are flexible to the extent that the national authorities of the Member States have the choice of the form and method of the transposition (and later also implementation and enforcement) of a Directive. This takes into account the fact that Member States have differing legal systems and allows that each Member State preserves its established national laws and adapts them according to EU requirements. However, the transposition must ensure that the substance of a Directive is properly converted into national law and its intended results are being achieved.

If a Member State fails to transpose the Directive in a timely manner or fails to do it at all, the EU Commission may initiate a so-called infringement procedure against that Member State to the Court of Justice of the European Union (CJEU).

Approximation in the TFEU is used in a different context, namely for the harmonisation of the legislation of EU Member States especially in fields related to the functioning of the internal market (see Articles 114 – 118 TFEU) but also approximation of the laws and regulations of Member States in the area of criminal justice (where exists almost no Directive to be transposed into national law.

Moldova is not an EU Member State and hence does not have to – legally speaking – transpose any EU Directive strictly into national law. This is why the AA uses mostly the term “approximation” and only once uses the term “transpose”4.

The overall purpose of approximation of legislation shall eventually lead to a high level of harmonisation of Moldovan with EU legislation, meaning that no national legislation shall be in contradiction to EU legislation. In this respect approximation aims to create consistency of laws, regulations, standards and practices, so that the same rules will apply, keeping in mind that the scope and level of approximation depends on the area and topic to be approximated with. Depending on the level of approximation, as shown below, an approximation may in some cases of the DCFTA Title in fact require a full alignment of Moldovan legislation to an EU Directive, which, in fact, is like a transposition required by an EU Member State.

3.2 Implementation and enforcement

Technically speaking, approximation means nothing else but the preparation and adoption of national primary and secondary legislation. However, the AA understands approximation in a wider sense. Article 451 states that the assessment of the approximation of the law of the Republic of Moldova to EU law “includes aspects of implementation and enforcement”.

This is why the Annexes to the AA do not set timelines for the adoption of legislation only but refer to the “implementation” of a Directive / selected provisions of a Directive. This has fundamental consequences, which are different from the transposition requirements of an EU Member State. An EU Member State has to transpose a Directive into national law within a given time. Of course, it also has to implement the national provisions properly later on. The EU Commission, though, focuses first

4 Only in Article 173 (5): “With a view to integrating its standardisation system, the Republic of Moldova shall: (a) progressively transpose the corpus of European Standards (EN) as national standards [...]”.


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of all on the timely transposition only whilst the proper implementation is examined at any given stage later on.

As concerns the Republic of Moldova the wide understanding of the term “approximation” means that the adoption of legislation as such will not automatically lead to such approximation: in addition the new legislation also needs to be applied in practice and enforced by competent bodies and institutions and both will be assessed at the same time in accordance with Article 451.

It also means that the mere quantity of new provisions and legislation in the Republic of Moldova which are shaped in accordance with EU Directives will be of little value, if the new domestic rules cannot be implemented and enforced in daily practice.

Therefore, approximation does not only refer to the drafting and adoption of legislation but also to the setting up of a functioning administrative infrastructure that is capable of implementing the new legislation. Annex XI (environment) illustrates this well by requiring the Republic of Moldova to adopt national legislation and designate competent authority / authorities (for implementation of that legislation).

Note: It is misleading, that Annex XI – obviously as the only Annex concerning areas of Title IV – sets different time lines for the adoption of legislation on one hand and the implementation of specific Articles on the other. Legislation, once drafted and adopted normally shall be implemented immediately after its publication unless specific transition periods are set in a law which allow a later application.

3.3 Different levels of approximation It is obvious from the content of the AA that there are different levels of “approximation” of legislation to be achieved for the different areas addressed in the Agreement.

The preamble emphasizes the general commitment of the Republic of Moldova to “progresssively approximate its legislation in the relevant sectors with that of the EU and to implement it effectively”. As regards trade related matters one of the objectives of the AA is the “setting up a Deep and Comprehensive Free Trade Area (DCFTA), which will provide for far-reaching regulatory approximation [...]” (Article 1 (2 g).

In the field of energy, though, as one example, the preamble only speaks of the commitment of the Republic of Moldova of “regulatory approximation towards key elements of the EU acquis”. This “key element” approach is taken in several sectors which do not directly concern trade related matters – in these areas often only certain elements of Directives of the European acquis are required to be approximated to as listed in the Annexes to the AA.

Example 1:

Pursuant to Article 91 AA the Republic of Moldova shall carry out approximation of its (environmental) legislation to the EU acts and international instruments referred to in Annex XI to this Agreement according to the provisions of that Annex.

Annex XI then lists extracts from a number of environmental law Directives – but neither is this list of Directives complete nor do all aspects of a specific Directive have to be aligned with Moldovan legislation. For instance, the Moldovan lawmaker shall adopt national legislation for approximation to the Directive 2008/50/EC on ambient air quality and cleaner air for Europe.

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However, only a number of key provisions are explicitly listed in Annex XI (namely Articles 4, 5, 6, 9, 23, 24 and 26) whilst other norms of the Directive are left out. This means that only a partial approximation to certain benchmarks of the Directive is legally required whilst further going approximation efforts to other elements of the Directive are left to the Moldovan lawmaker.

For instance, provisions concerning the setting of limit values and alert thresholds for the protection of human health are not foreseen for approximation. Furthermore, whilst provisions in other parts of Annex XI explicitly refer also to Annexes of the respective EU directives (see, for instance, on environmental impact assessment), there is no such reference in the provisions on ambient air although they cannot be implemented in an effective manner without making use of the technical requirements set in the Annexes.

As regards the non-accuracy of text passages of Annex XI the EU Commission informed the author of this paper that they shall be interpreted with “common sense” - meaning that, where necessary, technical Annexes of Directives have to be taken into account.

This “basic” legal approximation requirement always reads:

“The Republic of Moldova shall carry out approximation of its legislation to the EU acts and international instruments referred to in Annex XYZ to this Agreement according to the provisions of that Annex.” Such clause can be found in most of the areas addressed in Title IV “Economic and other sectoral cooperation” of the Agreement, for instance on Company law, accounting and auditing and corporate governance (Article 30), Consumer protection (Article 40), Taxation (Article 57), Financial services (Article 61), Agriculture and rural development (Article 70), Energy cooperation (Article 76), Transport (Article 85), Public Health (Article 116), to name just a few.

4 General approximation requirementsThe provisions in Title IV do not set any particular mechanism for legal approximation. Pursuant to Article 448 the legal approximation process to EU as well as to international legislation shall be done gradually , based on commitments in the AA in conjunction with the respective Annexes of the AA. Most Annexes prescribe a time schedule for the implementation of specific EU legislation or parts of that legislation.

The term “gradual” means that the approximation of legislation is long lasting step-by-step process and cannot be achieved at once; it is the timeframe set in the applicable Annexes that determines the envisaged approximation progress per area.

Example 2:Relevant Directives and Decisions related to Product Safety (in the area “Consumer Protection”) shall be approximated to between 2 and 4 years according to the timeframe in Annex IV.

Example 3:


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The setting up of a functioning environmental permitting system (= approximation to benchmarks from just one Directive 2010/75/EU) shall be done in a period between 3-10 years according to the Annex XI (Environment - Industrial pollution and industrial hazards).

4.1 Dynamic approximation

According to Article 449 the gradual approximation of the Republic of Moldova to the legislation of the EU the Annexes to the AA shall be periodically revised and updated taking into account the evolution of EU law. This-so-called "dynamic approximation” clause shall in particular apply to the commitments under the DCFTA but also to Titles III, IV and VI, which means that, in essence, almost all areas are subject to the dynamic approximation process. The approximation is called “dynamic” as the adjustment to new EU legislation is an ongoing and permanent process, in which the Annexes to the AA are amended by the newly established Association Council (see below) in regular intervals.

Example 4

The 2012 LLC safeguards Directive of 25 October 2012 is not an explicit part of the AA because it was obviously adopted shortly after closing the negotiations of the AA. However, its predecessor (Council Directive 77/91/EEC) is listed in Annex II (related to the Chapter 3 in Title IV, Company Law) and shall be approximated two years after the entry into force of the Agreement. As the 2012 LLC safeguards Directive repealed the Directive 77/91 it replaces the latter Directive for the approximation process.

Example 5:

According to the AA the Republic of Moldova shall approximate its legislation to the Directive on the control of major accident hazards involving dangerous substances (Directive 96/82/EC as amended in 2003). This so-called Seveso II Directive was repealed with effect from 1 June 2015 through the so-called Seveso III Directive (Directive 2012/18/EU). A “dynamic approximation” would have to take into account this new Directive at least insofar as it concerns elements to be approximated to.

Two legal bodies are created under the AA which shall have specific roles also in the legal approximation process, namely the Association Council and the Association Committee.

4.2 Association Council

The Association Council is established in accordance with Article 434 as key institution under the Agreement. Its composition, meeting intervals and roles are determined in Articles 344 – 346. As concerns legal approximation tasks, the Association Council has two main functions:

On the one hand it will be a high-level forum for exchange of information on all legislative matters in the EU and in the Republic of Moldova, including the preparation of new legislation, implementation and enforcement issues.

Secondly the Council has the legal power to update or amend the Annexes to the AA (specific provisions under the DCFTA Title have to be taken into account insofar) and hence sets the legal basis for the dynamic approximation process, see above, chapter 4.1).

Especially the latter function will be very relevant for the entire approximation process. Form a legal point of view, the Council may also amend the time schedule, if an approximation to an EU Directive / Regulation or Decision cannot be achieved in accordance with the time schedule set in the Annexes.

4.3 Association Committee

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The Association Committee, which shall comprise of senior civil servants from the EU and from the Republic of Moldova, is established in Article 437. It shall assist the Association Council and its detailed duties and functions shall be determined by this Council. The tasks shall cover the entire Agreement, but the Committee shall “in a specific configuration address all issues related to Title V” (Article 438 (4)). Its relevance for the approximation assessment in the DCFTA will be highlighted below, in 5.2).

4.4 Monitoring and assessment of the approximation processArticles 450 – 452 address the monitoring and assessment of the approximation process and its results. Monitoring is defined in a wide manner as the “continuous appraisal of progress in implementing and enforcing measures covered by this Agreement” (see Article 450). The Republic of Moldova and the EU are obliged “to facilitate the monitoring process in the framework of the institutional bodies established by the Agreement”, i.e. through the work of the Association Council and Committee and its sub-committees. No further obligations are set on monitoring.

A concerns the assessment of the approximation, the Agreement determines several more aspects in Article 451, namely that

the Republic of Moldova shall report to the EU on progress in approximation, where appropriate before the end of the transitional periods set out in this Agreement in relation to EU legal acts;

assessments may be done just by the EU (“individually”), by the Republic of Moldova and the EU together (“jointly”) or by the EU in agreement with the Republic of Moldova;

assessments may include on-the-spot missions in which NGO or independent experts may participate.

The results of the assessment, once discussed by all relevant bodies under the AA and agreed upon shall be submitted to the Association Council (Article 452).

If the EU and the Republic of Moldova agree that the legislation on DCFTA matters has been aligned, implemented and enforced, the Association Council shall agree on further market opening in accordance with the respective provisions under Title V. Further market access is the final goal of the approximation process – and the processes for its achievement are regulated individually in some of the chapters of Title V (see below in chapters 6.1, 6.2 and 6.4 on how to achieve this finalité in the areas of TBT, SPS and public procurement).

5 Additional approximation requirements in the DCFTA (Title V)

In contrast to the rather basic approximation in areas addressed under Title IV (and also Title VI), the approximation requirements and mechanisms regulated in Title V are set in a different manner and according to the different areas within the DCFTA.

Chapter 15 of the DCFTA contains a number of “general provisions on approximation” for that part of the Agreement, meaning that they are

on the one hand only applicable to the approximation under Title V but

on the other hand to all chapters under the DCFTA , meaning that they have a limited horizontal character.


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Naturally, the general provisions on approximation, i.e. Articles 448 – 455 remain applicable in principle also for the DCFTA – though for the approximation assessment, Articles 407 and 409 can certainly be considered a “lex specialis” on DCFTA in relation to Article 451, as shown below.

5.1 Repeal of inconsistent domestic law

Article 408 requires the Republic of Moldova “as part of the approximation to withdraw provisions of its domestic law or abolish domestic practices that are inconsistent with Union law or with its domestic law approximated to the Union law in the trade-related areas of Title V.”

This means that the adoption of new or the amendment of existing legislation in line with the EU acquis does not suffice, if any contradicting legislation or single provisions remain in force in the Republic of Moldova. The identification and revision of potentially inconsistent existing legislation is a major challenge in the law making process. Often the drafting of a new piece of legislation will automatically affect other related legislation, especially if the topic is broad or if new definitions/terminology is introduced or competences are allocated differently.

This is why a “legal package” approach is required when it comes to amendments of concerned legislation, meaning that all legal acts potentially concerned should be screened initially for potential needs of revision.

Remarkably, the “repeal clause” is explicitly set only in the DCFTA although it should be taken into account also in the other fields of approximation. A keeping into force of inconsistent or even contradictory legislation will make any legal approximation efforts incomplete and insufficient. Further details and examples on this matter shall be given in the Handbook.

5.2 Assessment of approximation progress in DCFTA areasChapter 15 of Title V establishes a specific mechanism for the assessment of the approxima tion progress achieved by the Republic of Moldova in relation to the agreed timeframes set in chapters 3, 4, 5, 6 and 8 of the DCFTA. According to Article 407 (1) at least once a year in either the Association Committee in trade or in one of its sub-committees the approximation progress shall be discussed.

The EU may request prior to such discussion that Moldovan counterparts submit to the Association Committee or one of its sub-committees information in writing not only on progress in approximation but also (!) “on the effective implementation and enforcement of approximated domestic law” (see Article 407 (2)).

As for those parts of the mentioned DCFTA chapters for which Moldova considers the approximation progress completed, it shall inform the EU about and the EU will then assess whether the domestic legislation has been approximated to EU law and whether it is implemented and enforced effectively (see Articles 407 (3), 409 (2)).

Following the wide understanding of the term “approximation” as illustrated above, the assessment shall not only assess the compliance of new Moldovan legislation in the respective area. According to Article 409 (3) the assessment “shall take into account the existence and operation of relevant infrastructure, bodies and procedures in the Republic of Moldova necessary for the effective implementation and enforcement of the legislation.”

By taking up the general requirement from Article 451 (1 sentence 2) Article 409 (3) re-emphasizes for the DCFTA that approximation is not completed, if new legislation is in place and its quality is in line with EU requirements; in addition legislation must also be drafted in a manner that it can be implemented and enforced in daily practice.

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A particular focus of the assessment in the fields of the DCFTA shall be on legislation or practices which are inconsistent with the EU acquis (Article 409 (4)) – meaning that compliance with Article 408 requirements shall be examined carefully.

In terms of procedure, paragraph 5 provides for another clause (which goes beyond the general provision in Article 452): The EU shall inform the Republic of Moldova within 12 months from the start of the assessment about the results of its assessment – the results will then be discussed in the Association Committee in trade configuration; the applicable procedures shall be adopted by that Committee pursuant to Article 412. This highlights the importance of the Association Committee as main steering body for the approximation process on DCFTA matters.

5.3 Developments relevant to approximation in DCFTA areas

Article 410 regulates a number of additional aspects concerning the approximation process in the DCFTA area; they can be summarized as follows:

Paragraph 1 requires the Republic of Moldova to ensure the effective implementation of the approximated domestic law including developments in EU law. Insofar this provision re-affirms Article 453 (fulfilment of obligations) for the DCFTA Title.

Paragraph 3 requires the EU to inform the Republic of Moldova about any final European Commission proposals to adopt or amend EU law if this is relevant for the approximation obligations. This clause is of particular relevance for those provisions in the Agreement which require approximation to future legislation of the EU acquis – notably such information obligation does not exist for the general “dynamic approximation to the evolution of EU law” under Article 449.

Vice versa, the Republic of Moldova shall also inform (in time) the EU of legislative proposals and measures which may affect the fulfilment of obligations under Title V (paragraph 4). The establishment of this can be considered as an “early warning system” which shall obviously avoid that legislation is going to be adopted in this area that may have a negative effect on the approximation process and allows the EU to interfere in time (though the bodies and consultation processes established).

If legislation in any of the chapters of the DCFTA addressed below in chapter 6 has been assessed and afterwards modified by the Moldovan lawmaker - for whatever reason - it shall be re-assessed in accordance with Article 409 (Paragraph 6).

Paragraph 7 and 8 provide for a detailed mechanism in cases where it turns out during the re-assessment that compliant domestic legislation amended or changed is no longer in line with EU law; in such cases particular benefits may be suspended. Paragraph 7 and 8 seem to be “lex specialis” on DCFTA matters to Article 455.

6 Specific legal approximation requirements and mechanisms in selected DCFTA chaptersTitle V on the DCFTA contains a total of 15 chapters of which 13 are related to specific trade areas. These chapters contain numerous legislative approximation clauses requiring the Republic of Moldova to approximate its domestic legislation and standards to EU legislation. As for the trade


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related matters in the DCFTA the Republic of Moldova will be granted gradually increased access to EU internal market in return.

Almost all chapters of the DCFTA contain different “types” of legislative approximation mechanisms, depending on the objectives of the respective chapter. On five of these chapters a more detailed overview of the different approximation clauses and mechanisms shall be given below, namely on

Technical barriers to trade (Chapter 3, Articles 170 – 175)

Sanitary and phytosanitary measures (SPS) (Chapter 4, Articles 176 – 191)

Establishment, trade in services & electronic commerce (Chapter 6, Articles 202 – 263)

Public procurement (Chapter 8, Articles 268 – 276)

Competition (Chapter 10, Articles 333 – 344)

6.1 Technical barriers to trade (TBT) The provisions of the TBT chapter apply to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures as defined in the TBT Agreement under the WTO that may affect trade in goods between the Republic of Moldova and the EU. This agreement is binding on all WTO members, including the Republic of Moldova.

The relevant Article 173 on legal approximation requires the Republic of Moldova to take the necessary measures “to gradually achieve conformity” with technical regulations, stan dards, metrology, accreditation, conformity assessment, corresponding systems and market surveillance system of the EU. Moldova shall “progressively incorporate” the relevant Union acquis into its national legislation in accordance with the provisions of Annex XVI and, in addition, “follow the principles and the practice laid down in the EU aquis”.

As for the legal approximation, Annex XVI lists more than 100 (!) pieces of EU legislation to which Moldova shall either achieve “approximation” or “full approximation” according to years indicated as deadlines.

The Agreement does not clarify what the difference is between “full approximation” and “approximation”. It is assumed that full approximation means that an entire piece of legislation is aligned with, while, for simple approximation only (large?) parts of an EU Directive or Regulation must be aligned with.

Besides, there are a number of contradictions and inconsistencies between Annex XVI and other Annexes to the AA as the following examples show.

Note 2: For instance, according to Annex XVI on dangerous chemicals a number of Regulations and Directives shall be approximated to whilst according to Annex XI (Environment, sub-sections on chemicals and on industrial pollution) only some elements of those Regulations and Directives are supposed to be implemented – the implementation deadline differs sometimes considerably from the approximation deadlines set in Annex XVI.

Note 3:Regulation 1272/2008 on the classification etc. of substances and mixtures shall be approximated to by 20013/2014 but its implementation shall only be achieved in 2021. What does this mean for the applicability of the legislation in the meantime? Can it be ignored?

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Generally speaking, many of the approximation timelines set in Annex XVI seem over-ambitious and unrealistic to be achieved in time, at least if applicable legislation is going to be drafted and not just copied from EU law.

The Moldovan lawmaker must be aware also of revisions of legislation listed in Annex XVI. Insofar the footnote the Annex XVI is of high relevance, which states that references to legislation “shall be understood to cover any past or future revisions of the relevant acts […]“. This footnote implies that approximation to the legislation listed in the Annex should be considered as dynamic as explained above, (see chapter 4.1).

Example 6: For instance, the list in Annex XVI includes the Directive 2002/96/EU on waste electrical and electronic equipment (WEEE Directive). However, that Directive was repealed through the new WEEE Directive (2012/19/EU) with effect from 15.02.2014 – the new Directive should be taken into account in the approximation process.

Apart from the approximation task in a narrow sense, the administrative and institutional reforms that are required for an effective and transparent implementation system also need to be put in place by Moldova (Article 173 (2b) AA). Such reforms consequently need to be taken into account in the legal drafting process, as is shown in example 6, below.

Example 7:

The Accreditation Regulation falls within the scope of the EU acquis to be approximated pursuant to Article 173 in conjunction with Annex XVI. According to that Annex it was already approximated legally “on the date of entry into force of the Law No 235 of 1 December 2011”. Obviously the approximation was done in line with the requirements as the AA does not include any further clauses making the national law subject to an assessment or amendments.

However, besides legal approximation the Accreditation Regulation focuses much on the implementation of measures especially in its section 2, which is related to market surveillance.

Insofar the Regulation leaves a wide discretion to the Republic of Moldova how to establish communication and coordination mechanism between the national market surveillance authorities as long as these are “appropriate” (see Article 18 LLC safeguards Directive). The same “appropriateness” requirement is on market surveillance measures which shall be “on an adequate scale” (see Article 19 (1) LLC safeguards Directive).

There are a number of other clauses which require particular attention:

1. Pursuant to Article 173 (3) “the Republic of Moldova shall refrain from amending its horizontal and sectoral legislation” (except for “aligning it progressively with the corresponding EU acquis and maintaining such alignment”). This clause reads like a special protection clause as it means that any change of existing legislation in this field shall only serve the purpose of further harmonisation with EU law and not be driven by any other motivation. In order to secure compliance with this


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reservation clause, paragraph 3 requires the Republic of Moldova to notify the EU any changes in its national legislation on TBT.

2. Article 173 (5) AA includes a special clause on gradual approximation , stating that Moldova shall “progressively transpose the corpus of European standards (EN)” into national legislation and hence “progressively fulfil the conditions for full membership in the European Standards Organisations”. The word “progressively” that is used four (!) times in Article 173 implies no more than a reiteration of the step-by-step process which is necessary to be taken to achieve gradual approximation. “To transpose” can be understood as a direct and full incorporation of the standards into Moldovan legislation – it may even go beyond an “approximation” insofar as no deviation from the standards can be accepted.

3. Paragraph 5 also emphasizes, that parallel to the transposition of the EN, “conflicting national standards shall be withdrawn”. This clause takes up the obligation of Article 408 and reiterates it as “lex specialis” concerning TBT related standards.

4. The entire approximation process on TBT has an ultimate target – legally called “finalité” – which is the conclusion of an “Agreement on Conformity Assessment and Acceptance of Industrial Products (ACAA) as a Protocol to the Agreement” (see Article 174). Those sectors from the long list of legislation in Annex XVI that are verified as being fully aligned to the EU acquis in Moldovan legislation, shall be added to this Protocol.

By concluding in ACAA, which is a standard form of mutual recognition under international trade law, the EU and the Republic of Moldova agree that the industrial products which are listed in that in the Annexes of such ACAA may be placed on each other’s Party market.

The conclusion of an ACAA normally requires that both sides have comparable product certification and testing systems in place which shall be based on comparable legal requirements – this is why full approximation to EU standards is a pre-condition for conclusion of an ACAA. The verification process will be done in accordance with Article 409, which is explained above (see chapter 5.2).

6.2 Sanitary and phytosanitary measures (SPS)Chapter 4 of the DCFTA Title deals with sanitary and phytosanitary measures. These so-called SPS have been addressed internationally in the SPS Agreement under the WTO to which Moldova is a Party.

According to Article 181 (1) the Republic of Moldova shall “gradually approximate its sanitary and phytosanitary and animal welfare law to that of the EU as set out in Annex XXIV to this Agreement ”.

As explained in Chapter 4, “gradually approximating” means that the Republic of Moldova shall take a step-by-step approach when aligning its legislation on SPS and animal welfare to that of the EU. The list of EU legislation approximated to shall be determined and sorted by the Republic of Moldova according to its priorities and based on its technical and financial resources within three months after the entry into force of the AA – Annex XXIV B which shall make up this list remained empty.

Thus the AA as it stands does neither refer to a specific EU acquis no does it provide a timetable for approximation. In the general rules of Annex XXIV A are only listed a number of aspects which shall be addressed irrespectively of the priorities determined, namely legislation addressing control systems, animal health and welfare, food safety, animal by-products, plant health and genetically modified organisms.

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In order to adapt Moldovan legislation to new EU legislation in this field, Article 181 requires from the EU “to inform the Republic of Moldova well in advance of changes to Union legislation to allow the Republic of Moldova to consider modification of its legislation accordingly”.

Different from the other fields of the DCFTA the approximation process as such, and in particular the evaluation of the approximation progress is described in detail in Annex XXIV which is titled “Approximation”. According to this Annex the Republic of Moldova shall either (1) adopt additional domestic rules or procedures which shall serve the implementation and enforcement of the rules in pertinent basic EU acquis or (2) amend relevant domestic rules or procedures to incorporate the rules in relevant basic EU acquis . Whatever approximation measure the Republic of Moldova takes, its result shall be to “eliminate any domestic laws, regulations, practices or other measures inconsistent with the approximated domestic rules and to ensure the effective implementation of approximated domestic rules.”

In principle, such result can be expected as standard result of an effectively completed approximation process also in other areas of the AA or at least the DCFTA. Inconsistent rules always hamper the proper implementation of a legal regime and it is essential in the law making process to be aware of all potentially colliding provisions which may need to be amended or repealed in order to be in line with the new rules drafted.

For that reason, the first part of the general rules of this Annex should also be taken into account for approximation measures in all other areas of the AA, including those outside the DCFTA. The fact, however, that approximation measures and expected results are explicitly prescribed and emphasized in this Annex, demonstrate that the field of SPS has a particularly high relevance within the DCFTA.

In addition, as for SPS legislation the Republic of Moldova is required to document the approximation progress in so-called Tables of Correspondence; the Annex even provides a model template for such table. The use of this template is mandatory. The table is a simplified form of the Table of Concordance proposed as a tool for approximation in the Methodology of 2010; it shall only contain in English language the relevant EU legal provisions (column titled “EU Act”), the corresponding text of the national provision (column titled “National legislation”) and a reference or other provisions associated with this article from the EU law, especially when the text of the provision is not approximated (column titled “remarks from the Republic of Moldova”). The table shall be used by a reviewer to assess the approximation on SPS legislation in a 4 th column.

The value of the use of such tables is controversial; not many EU Member States make use of it when they transpose EU Directives into national law (for more details on the use of ToC, see below, chapter 7.4).

According to Article 183 (4) the Republic of Moldova shall notify the EU as soon as approximation is achieved as a result of the monitoring which shall be done by the SPS Sub-Committee pursuant to Article 181 (3). This Sub-Committee is established pursuant to Article 191 and is in charge of, among others, the implementation of the SPS Chapter which includes all approximation tasks.

The notification is considered a request “to initiate the process for recognition of equivalence of measures concerned” (see Article 183 (4) AA) – the recognition of equivalence means eventually that the EU accepts the import from the Republic of Moldova for the good in question since the measures


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taken by the Republic of Moldova achieve an appropriate level of sanitary and phytosanitary protection or acceptable level of risk (see the definition of equivalence in Article 179 (21). 5

6.3 Establishment, trade in services and electronic commerce

Chapter 6 of the DCFTA addresses the field of establishment, trade in services and electro nic commerce. The chapter is one of the longest of the DCFTA (Articles 202 – 263) and has several sections and sub-sections. However, not all sectors within this Chapter contain provisions on legal approximation, except for those related to Postal and Courier Services, Electronic Communications (Telecommunication services), Financial Services, and Transport Services. The provisions in these sub-chapters have to be read in conjunction with Annex XXVIII – which lists the relevant EU acquis and is sub-divided into parts A–D in accordance with the sectors addressed. They all contain identical approximation clauses which read “the importance of the gradual approximation of the Republic of Moldova's existing and future legislation to the list of the Union acquis set out in Annex XXVIII [...] to this Agreement” (see Articles 230, 240, 249, 253)

Notably, the clause refers explicitly also to “future legislation” of the EU. Insofar it reads as a more stringent expression of the dynamic approximation requirement under Article 449 which already requires the “taking into account the evolution of EU law”.

With regard to the approximation tasks Annex XXVIII and its sub-Annexes define the precise scope and timetable for all concerned areas under Chapter 6.

As for Financial Services, Part A of Annex XXVIII lists 35 Directives and 5 Regulations that shall be implemented within a period of 1-7 years of the entry into force of the Agreement (one Directive 6 is supposed to be implemented even before, namely upon entry into force of the AA).

With regard to Transport Services, Part D of Annex XXVIII lists 16 Directives and 6 Regulations that shall be implemented (fully) between 2 – 5 years after the entry into force of the AA.

Part C of Annex XXVIII just lists three Directives to be approximated to in the area of Postal and Courier Services; the approximation time schedule for two Directives is 5 respectively 7 years whilst the main EU Directive on postal service (Directive 97/67/EC) is supposed to be implemented already, namely since the entry into force of the AA.

As concerns Telecommunication Services the obligations of the Republic of Moldova are quite different. Part B of Annex XXVIII lists 10 Directives and 2 Decisions but only selected provisions of these European legal instruments shall be implemented within a given timeframe. Insofar, it the “key approach” applies as outline above in chapter 3.3. The approximation time schedule is very demanding; it ranges from 1.5 to 3 years after the entry into force of the Agreement, which in essence implies that all required legislation in this field has been adopted and its implementation started no later than September 2017.

Although, it does not directly relate to “approximation” in a narrow sense, the provisions in Articles 219 – 221 will play a crucial role for the review of existing Moldovan legislation in terms of needs for potential amendments or revisions. The provisions in question deal with minimum standards and

5 Further details on the procedure and content of the recognition of equivalence are outside the scope of this guidance.

6 Directive 2007/18/EC as regards the exclusion or inclusion of certain institutions from its scope of application and the treatment of exposures to multilateral development banks

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requirements concerning licensing requirements, procedures and qualification requirements of cross border supply of services and related aspects. Article 219 stipulates a number of definitions, and Articles 220 and 221 set basic requirements for legislation (and application) of licensing and qualification conditions and related procedures which shall be complied with by domestic regulation.

6.4 Public Procurement Chapter 8 on Public Procurement once again has different and very demanding provisions on legal approximation. The baseline for approximation is Article 273 (1), which reads: “The Republic of Moldova shall ensure that its existing and future legislation on public procurement will be gradually made compatible with the Union acquis on public procurement.”

According to paragraph 2, the approximation shall be carried out in consecutive phases – this can be considered another expression for a gradual approximation process. Different from other Annexes, Annex XXIX-B provides for a detailed but only indicative time schedule not only for legal approximation but also for institutional reform (and even for eventual market access) related to public procurement.

Although the EU legislation in the field of public procurement is limited to just two major Directives 7 and two complementary Directives8 the approximation schedule in this Annex and its subsequent parts C-O is very detailed. It shall be outlined and explained in brief below:

First of all the approximation and implementation schedule in Part B distinguishes between basic and other elements of the mentioned directives and determines corresponding time schedules which range from 9 months to 8 years after the entry into force of the Agreement.

What is supposed to be considered a basic element is listed in detail in Parts C, D, E and F for each of the four Directives. Each list follows the structure of one directive. In the so-called phases 2 and 3 of the approximation process, the basic elements shall be approximated.

As regards the other elements of the four Directives some (but not all!) of these are further divided into mandatory (Part H) and non-mandatory elements (Parts G and J of Annex XXIX). Those elements that are called non-mandatory are only recommended for approximation but there is no obligation to do. Elements which are neither mandatory nor non-mandatory fall within the indicative approximation schedule in Part B (approximation phases 4 and 5).

Eventually, Parts L, M, N and O of Annex XXIX list those provisions of the four directives which shall not be approximated at all.

7 Directive 2004/17/EC coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

8 Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts as amended andDirective 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors as amended


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According to Article 272 this complex approximation framework was supposed to be converted by the Republic of Moldova “into a comprehensive roadmap for the implementation of this Chapter with time schedules and milestones which shall include all reforms in terms of approximation to the Union acquis and institutional capacity building.”

The roadmap shall take into account the approximation phases set, but may further fine-tune them. Notably, the chapter on public procurement is the only one within the entire AA where such approximation roadmap is mentioned. The roadmap document shall be considered as the reference document for the implementation of this Chapter – it shall hence replace the schedule and details in Annex XXIX.

Another aspect is remarkable in the chapter on public procurement. The Republic of Moldova shall take into account in the approximation process not only “implementing measures adopted by the European Commission and any modifications of the EU acquis (as notified by the EU)”, but even “corresponding case law of the CJEU”.

Especially the latter will be a challenge that requires a good understanding of the system of infringement and preliminary rulings of the CJEU.

The result of the approximation process – once evaluated as positive by the Association Committee in Trade configuration – will be the granting of market access for the Republic of Moldova for services, supplies and works in accordance with the columns 4 and 5 of Annex XXIX-B (see Article 274).

It is obvious from the above that the provisions in this Chapter provide for a far more detailed “lex specialis” on how to proceed with the gradual approximation process than does the general clause in Article 448.

6.5 Competition

Chapter 10 on competition is a comparable short chapter which consists of two sections namely “Antitrust and mergers” (Articles 333 – 338) and State aid” (Articles 339 – 344). Both sections do not have an approximation clause like most of the other chapters within the DCFTA nor any Annex they refer to. Instead, Article 335 is titled “Implementation” and stipulates simply that

“Each Party shall maintain in its respective territory comprehensive competition laws which effectively address anticompetitive agreements, concerted practices and anti-competitive unilateral conduct of undertakings with dominant market power and provide effective control of concentrations”, and Article 341 on State aid legislation states that “the parties shall adopt or maintain, as appropriate, legislation for the control of state aid.”

As for the competition law to be maintained in the Republic of Moldova Article 333 (2 b) explicitly refers to the Competition Law No 183 of 11 July 2012 and its implementing regulations or amendments. Obviously that legislation is in compliance with EU law and the focus is on its proper application as emphasized in Article 335 (2 and 3):

There shall be an operationally independent authority with adequate human and financial resources in order to effectively enforce the competition laws, and

The competition law shall be applied in a transparent and non-discriminatory manner, respecting the principles of procedural fairness and rights of defence of the undertakings concerned.

As regards state aid, it shall be assessed in the Republic of Moldova in the light of criteria from competition rules in the EU and in particular Article 107 TFEU and its interpretation through EU institutions and judgements of the CJEU (see Article 340). This implies that not only the domestic legislation will be assessed but that a focus will be on its practical implementation. As for the

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assessment procedure the general rules under the DCFTA assessment (Articles 409, 410) will be applicable; the assessment shall not be done later than five years after the entry into force of the Agreement (see Article 340 (2).

6.6 Inconsistent use of terms in AA / DCFTA

As shown above, the Agreement contains different legal terms to refer to the process of legislative approximation in its chapters. This goes in particular for the DCFTA Title in which almost every chapter uses different terminology in its approximation clauses, such as shall “approximate”, “align to” or “achieve conformity with” the EU acquis or make its domestic legislation “compatible” with the EU acquis or “incorporate” it in its domestic legal order. The main reason for this inconsistency – which often mean the same, namely “legal harmonisation”– is that the different AA and DCFTA chapters were negotiated by different negotiating teams of DG Trade or other DGs from the EU Commission, using each their own legal terminology to determine the approximation obligations. Because all these different terms refer to the same process, namely “approximation”, a more consistent use of these terms, including precise definitions, would have been beneficial for the legal clarity of this agreement.9

7 Practical advice on approximationIn the final chapter of these guidelines a few rather unsorted general explanations and practical recommendations on “legal approximation” shall be given. The advice shall be complementary to the “best practice” recommendations given in the Methodology and in the Handbook and may eventually be incorporated into its chapter on “law making”.

7.1 The meaning of “codification”, “recast” and “consolidation” of an EU Act

There are three terms often found in the preambles of new Directives which may be misunderstood, namely the terms “codification”, “recast” and “consolidation”.

Codification

Codification is the process of bringing together a legislative act and all its amendments in a single new act. The new act passes through the full legislative process and replaces the acts being codified. The codified version is usually prepared on the basis of a consolidated version of an Act (see below) combining the original act and the successive amendments without any further substantive changes . Codification shall contribute to more legal clarity.

Example 8:Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (EIA Directive) is a codified version of the original EIA Directive 85/337/EEC which had been substantially amended several times before. The Directive 2011/92/EU is part of Annex XVI of the AA (but also see below, example 11)

9 This conclusion is also made by Van der Loo, Elsuwege, Petrov for the EU-Ukraine AA in: The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument, page 18 (EUI Working Paper Law 2014/09)


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Recasting

Recasting is like codification in that is brings together in a single new act a legislative act and all the amendments made to it. Recasts are done usually in the interest of clarity. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves additionally new substantive changes , as amendments are made to the original act during preparation of the recast text. There are two types of recasting, namely

vertical = one original act and its amendments are incorporated in a single new act and

horizontal = two or more original acts (and amendments) covering related subjects are incorporated in one single new act.

Example 9 – vertical recast:The LLC safeguards Directive is a recast of Directive 77/91/EEC which has been amended several time since its adoption in 1976. The recast includes new amendments and leads to the repeal of Directive 77/91/EEC.

Example 10 - horizontal recast:Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control) – IED - is a recast of the IPPC Directive and six other Directives and their old and new amendments into one new legal act – all these seven Directives have been repealed by the new IED.

The approximation of Moldovan legislation shall refer to the new LCC safeguards Directive (see above, chapter 4.1) and extracts from the IED (see Annex XVI of the AA on Industrial pollution and hazards).

Consolidation

Legislative consolidation means combining the provisions of a European Directive and all subsequent amendments in one single text in order to make it a more transparent and reader-friendly. A consolidation itself does not amend a Directive – it is just a simplification of the existing legislation. Therefore, consolidation unlike “codification” and “recast” does not generate a new mandatory legal instrument but creates only a purely declaratory, unofficial simplification of the legislation.

A consolidated document commonly serves as a basis for codification/recast of a Directive.

Example 11:Notably, very few years after its adoption as codified Act, the EIA Directive (2011/92/EU) was again substantially amended through Directive 2014/52/EU. Instead of producing a new codified version – which would entail a legal procedure -, the EU Commission published an informal consolidated version of the new EIA Directive for the time being which includes all amendments in the original text10. Given the dynamic approximation requirement in the AA, this consolidated version may be taken into account in the approximation process of the Republic of Moldova in accordance with Article 91.

7.2 Mandatory / optional provisions for approximation

10 See link on http://ec.europa.eu/environment/eia/eia-legalcontext.htm

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As seen above, the Chapter on public procurement distinguishes between elements which are mandatory for approximation through the Republic of Moldova and non-mandatory ones. However, beyond this specific distinction in the AA, EU directives generally consist of mandatory and optional provisions. Those which are introduced by the phrase “a Member State shall” or “the laws of the Member States shall require” are mandatory and have to be transposed by an EU Member State into national law.

It is, however, in the discretion of each Member State whether to convert or not into national law provisions which are phrased “Member States may [...]” or in a similar non-mandatory manner.

Given the wide meaning of the term “approximation” (especially in the DCFTA Title) wherever the Republic of Moldova is required to approximate its legislation to EU law it is supposed to act like an EU Member State, meaning that it has to align its national legislation to EU law where this is called mandatory.

Example 12:The provisions in section 2 of the LCC safeguards Directive contain a typical mixture of mandatory (“shall”) and optional (“may”) clauses. Often, even the mandatory implementation requirements are subject to “appropriateness”, “proportionality” and “adequacy” (see, for instance, Articles 18 (1) and (4), 19 (1) and (2) and 21 (1).

7.3 Transposition techniques used by EU Member States

The Methodology addresses the aspect of approximation techniques and this technique – unlike the mechanisms explained above - will not be influenced through the Agreement.

A survey has examined how Directives are technically transposed into national law in EU Member States.11

Basically, there is a wide variety ranging from a mere copying (including a slight adjustment to national needs, competences and terminology) of a Directive to its complete integration and re-wording and structuring into national law. The same options basically exist for approximation.

Example 13:The IED had to be incorporated into the legal permitting system in Germany which existed for many years. Since the permitting is regulated in three laws and more than 10 by-laws all of them had to be carefully amended, including their interrelations and copying was not an option at all (except for most definitions used in the IED).

The benchmark for successful approximation act is that a national law is not only formally in coherence with EU law but is also applicable and enforceable in reality. This also presumes a sound understanding of the purpose and scope of a legal act to be approximated to. Copying entire provisions from EU law into national aw always bears the risk that the rule may later not be implementable in practice as it has not be properly incorporated into the legal and administrative

11 The transposition of EC directives: A Comparative Study of Instruments, Techniques and Processes in Six Member States, Bernard Steunenberg & Wim Voermans, 2006, see: http://media.leidenuniv.nl/legacy/transposition%20report.pdf , page 141


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http://media.leidenuniv.nl/legacy/transposition%20report.pdf




context or its practical implications have not been understood. It also runs the risk of having contradicting legislation in place.

Copying of legislation from neighbouring countries (here: esp. Romania) is most often not a proper option, not only because Romanian legislation may not fit and work in the Republic of Moldova but even because it is not clear whether Romanian legislation is always in compliance with EU law.

However, simple copying may be the most appropriate solution for (technical) Annexes of Directives / Regulations. Even Annexes should be integrated into national law not just aligned by means of a reference to EU law. Generally, such legal references to EU acts should be avoided wherever possible, especially since the latter may be amended without fast knowledge of the Moldovan lawmaker.

Be aware that a Directive may not only affect several pieces of domestic legislation but also related EU Directives.

Example 14:

Several provisions (for instance, Articles 1 (2), 2 (d), 3, 10 (3) and 12 (1)) of the LCC safeguards Directive make a legal reference to Directive 2009/101/EC which is also part of Annex II AA. In the approximation process the requirements of both Directives should be taken into account parallel.

7.4 Proper use of Table of Concordances

The use of Table of Concordances (ToC) in the transposition process varies considerably between European Member States. According to the above mentioned survey (see footnote 11) ToCs were only used regularly in the Netherlands, whilst for instance there is no legal tradition in Spain, France, Germany and Italy to prepare any ToC for checking compliance with transposition requirements. On the other side, the EU Commission often likes to assess the transposition of Directives into national legislation through ToCs and especially in new Member States the preparation of such tables are often done (either voluntary or mandatory).

As seen above (chapter 6.2) the AA requires the Republic of Moldova only on SPS to produce a simplified ToC. This is different from the AA between the EU and the Ukraine which contains an Appendix12 which requires the Ukraine to submit also for other sectors detailed roadmaps and so-called “transposition tables” to show how an EU legal act has been approximated to on an Article-by-Article basis.

According to point 22 of GD 1345 of 2006 the use of ToCs is mandatory in order “to demonstrate the compatibility of a national act with Community legislation” . The Methodology also recommends the preparation of such table in the legal approximation process to verify the proper alignment of Moldovan legislation to EU law.

The design of a ToC depends on its purpose. For instance, columns 8 and 9 of the ToC model suggested in the Methodology may not be necessary whilst there may be a need for a column with additional comments. Besides, it may be advantageous to split the columns that contain numbers and texts of Articles into two (to improve readability).

The advantage of using a ToC certainly is that it serves as useful tool to do an initial check if an EU provision has been addressed in a national Act or to identify problems for alignment. However, a ToC becomes more difficult to be filled if several closely interrelated EU acts have to be approximated

12 See Appendix XVII-6 of the EU-Ukraine AA with detailed procedural details on the continuous monitoring, reporting and assessment of EU legislation approximation and implementation progress

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virtually parallel (see the above examples of LLC safeguards Directive and Directive 2009/101/EC) and if many interrelated national acts are affected.

Besides, the key assumption for filling a ToC is the full understanding of the EU act to be approximated. Without such sound understanding the use of a ToC is meaningless.

The example below shows, how a ToC used by the lawmaker in the Republic of Moldova for verification could not avoid the wrong – and not applicable – approximation.

Example 15:According to Article 5 EIA Directive (Directive 2011/92/EU), the so-called developer of a project which requires an EIA shall be obliged to submit certain information necessary for the assessment. This information is outlined in Annex IV of the Directive.

Before submission of such detailed information on the project, though, it needs to be determined by the competent authority if an EIA is required at all. For such decision very little information on a project is necessary which has little to do with Annex V.

However, according to Article 8 in conjunction with Annex III of the new Moldovan EIA law (Law 86 of 29 May 2014) a developer of a project in the Republic of Moldova shall submit already in his application (= even before it has been decided whether the project requires an EIA at all) all the information listed in Annex IV, and even more.

The law insofar makes the concept of an EIA basically not implementable in practice as it will lead to unrealistic administrative burdens and costs. In practice the law would require from all investors very detailed unnecessary (and partly impossible) information and thus makes all projects in the Republic of Moldova subject to parts of an EIA procedure. This is exactly not the purpose of the EIA Directive.

The schematic use of the ToC did not avoid this wrong drafting, as it examined the approximation of Article 5 and Annex IV of the Directive separately without understanding the idea behind both provision and the Annex.


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Documents

Explanatory Memorandum - dcfta.md · Web viewAnnex XI (environment) illustrates this well by requiring the Republic of Moldova to adopt national legislation and designate competent