2014/07/25

Harmonization of Moldovan legislation with European law – new challenges for Moldovan lawyers.

The original version of this article had been posted in Russian before the Association Agreement between Moldova and EU was signed (it had only been initialled by then and made available online for anyone interested), so the references in the text are made to the draft Agreement. Now, after it has been signed and only awaits its ratification by EU states to become effective, all conclusions made in the article still remain fully valid.

Introduction

In the recent time period there has been active process of harmonization of the local law with legislation of the European Union taking place in the Republic of Moldova. Given the general political vector towards integration with the EU, such process is quite understandable.

During the last several years there were many legislative acts adopted in Moldova transposing into Moldovan law the norms existing in the European Union. However, besides the process of approximation of legislation that takes place, there arises the problem of further enforcement of respective laws. And here we are faced with a number of practical challenges which many Moldovan lawyers are probably not yet ready to respond to.

The existence of a particular legal rule or law as such does not give anything. Every jurist knows that the law starts functioning when public authorities and courts actually start applying it in a particular way by. And the enforcement of legal norms depends on how they are interpreted (it is a well-known fact that one and the same rule can sometimes be interpreted in completely opposite ways). And depending on how they will interpret and enforce those new legal rules in Moldovan law, it will determine how feasible the whole process of approximation of the legal systems is going to be.  

The necessity of uniform enforcement of EU law and the respective implications for Moldova

There is huge amount of legislation adopted in the European Union that is binding on all country-members. Therefore, the crucial condition for the effective implementation of all those legal norms is the ensuring of their uniform enforcement in all EU countries. To put it simply, the same regulation or directive of the European Union shall be enforced in the same manner both in Italy and in the UK. Otherwise the whole point of having common rules is lost.

Now let's turn to Moldova. There was an ongoing process of approximating Moldovan legislation to the European ones in the recent years. And it is important to notice that it was not just about adopting in Moldova legal provisions similar to EU's. We actually speak about implementing EU legislation in our country.
There is plenty of evidence for that. First, in the very statutes adopted in our country by European models there are multiple references made to particular legislation of the European Union. And not only these references are made in the text, but it is stated outright that those statutes are adopted in order to implement particular EU legislation in Moldova.

Just a couple of examples from competition legislation. The preamble to the new Law on Competition (see the text in Romanian here) that was adopted in 2012 and became effective at the beginning of 2013 says openly that it “transposes the provisions of articles 101–106 of the Treaty on the Functioning of the European Union of 25 March 1957, the EU Council's Regulation (СЕ) No 1/2003 of 16 December 2002 [...] and partly the EU Council's Regulation (СЕ) No 139/2004 of 20 January 2004 [...]”

In the end of August 2013 the Council for Competition adopted a number of regulations for the implementation and enforcement of the Law on Competition. We find analogous statements therein. For instance, the preamble to the Regulation on the assessment of verticalanti-competition agreements says that "the Regulation transposes the provisions of the Commission Regulation (ЕС) No 330/2010 of 20 April 2010 [...] and partly implements the Commission's Guidelines 2010/С 130/01 on Vertical Restraints [...], Commission's Guidelines on the application of article 81(3) of the Treaty 2004/С 101/108 [...], Communication of the Commission of 18 December 1978 [...].

Such examples are many. Most of the statutes adopted in Moldova in the recent years stipulate outright that they “create thenecessary base for the application” (the citation from the Law for the Protection of Trademarks) of certain pieces of legislation of the European Union.

But as we mentioned above, the implementation of European Union's norms also implies the uniform enforcement of those norms. In other words the authorities of the Republic of Moldova will have to ensure that the laws and other subordinate acts that we now adopt are applied in the same way as similar provisions are applied in the European Union.

And here we are faced with the problem that we shall not just implement the laws of the European Union, but also its case law, or the practice of their application. And that is a task much more challengeable than simply passing laws by European models. And we are not speaking here of the general problems of law enforcement and the rule of law in our country. That's a distinct problem calling for distinct solutions.

A significant problem lies in the fact that we will have to learn how to apply the European norms in the same way as they are applied in the EU. And for that we simply don't have enough specialists with deep knowledge of the European law. Specialized bodies and institutions (like, for example, the Council for Competition), I think, will cope with that task much faster. It is much easier to establish bilateral cooperation on their institutional level within which it is possible to provide respective training. And I suppose that there will be enough resources allocated for that purpose.

More serious problems can arise in Moldovan courts, as they will have to master vast amount of the established case law of the Court of Justice of the European Union. And here we can expect significant difficulties.

The necessity to implement the case law of the Court of Justice of the European Union in Moldova

The application of law involves first of all its interpretation. Before applying a particular legal rule we have to identify its meaning and essence. And that only seems easy at first glance. It is not without a reason that there exists a saying about two lawyers and three opinions. And that happens not because lawyers are masters of perverting the meaning of laws, but because almost any text, any phrase under a scrupulous reading can be interpreted differently. And when we speak about laws the task becomes even more difficult.

The exclusive power to interpret the norms of European law belongs to the Court of Justice of the European Union. It shall not be confused with the European Court of Human Rights which only considers the issues of violations of rights provided by the European Convention on Human Rights. The latter is the very court that issued so many judgments against Moldova and where one of the judges also comes from our country.

The Court of Justice of the European Union is only concerned with the interpretation and application of the law of the European Union. Moldova, not being a member-state of the EU, has nothing to do with that court. But following the tendency for implementing the norms of the EU we will have in the nearest future not just study, but actually implement the case law of this Court.

As it has already been mentioned, it is the Court of Justice of the EU that has the exclusive power to interpret the provisions of European law. Even more so, there is a special procedure in the EU, under which in situations when, while hearing a case, the national court of one of the EU member-states faces the necessity to interpret certain provisions of EU law, then the case is suspended at that that national court and referred to the European Court for the interpretation of the respective provisions. After the decision of the European Court the case is sent back to the national court which then passes its judgment on the merits.

For the period of its existence the EU Court of Justice adopted a vast number of decisions that to a great extent shaped the whole system of European law as it exists and applies today. Therefore, when implementing the norms of European law in Moldova, we will have to implement also the case law of the Court of Justice of the European Union.

Besides that there also exist the established practices of certain EU institutions, and above all the European Commission that takes decisions on the wide range of problems. Though its decisions do not have the same effect as the decisions of the Court of Justice, they play a huge role in understanding of how the EU rules are applied in practice. And the Moldovan public institutions and courts will also have to study and apply them in their activity.

Moldova's obligations under the Association Agreement with the European Union

We will have to do all the things said above. The confirmation that it will most probably become a legal obligation for the country we can find in a number of provisions of the Association Agreement with the European Union that is to be signed in the nearest future.

The obligation to harmonize Moldovan law with EU law is set forth in many provisions of the draft Agreement. The assessment of the process of approximation of Moldovan legislation to the Union law will be based, among other things, on how this legislation is going to be applied. This conclusion follows directly from the text of the draft Association Agreement. For example, article 409 par. 2 of the Draft directly provides that the European Union shall assess whether the legislation of the Republic of Moldova has been approximated to Union law and whether it is implemented and enforced effectively. Such assessment shall take into account the existence and operation of relevant infrastructure, bodies and procedures in Moldova necessary for the effective implementation and enforcement of Moldovan legislation.

Moreover, when assessing the approximation of legislation, it will also be taken into account whether there are any domestic provisions or practices that are inconsistent with European Union law (pars. 3 and 4 article 409 of the draft Agreement). Article 410 of the Draft also states that the Republic of Moldova shall undertake any action necessary to reflect the developments in Union law in its domestic law.

Moldova will have to report regularly on the progress of the process of implementing EU law in Moldova. Such reports should not be confined to providing just the information on the adopted laws. Under article 451 of the Draft Agreement the assessment of approximation may include on-the-spot missions, with the participation of EU institutions and respective experts.

Analogous provisions are frequent in the text of the Association Agreement in various contexts and aspects. Thus, the necessity of actually implementing the application practices or the case law is derived not only from the references to EU law in the texts of Moldovan laws, but also from direct obligations that Moldova is ready to undertake by signing the Association Agreement with the EU.  

Prospective difficulties in implementing European case law in Moldovan courts

The implementation of EU's case law in Moldovan courts, however, will inevitably stumble over the hurdles of technical and also of psychological nature.

First, we can hardly find sufficient number of judges qualified enough to deal with issues of European law, particularly in specialized areas, like competition law, for example. And it's not their fault. European law is something completely new to us, even despite the fact that general courses on EU law are taught for a long time in Moldovan universities.

Secondly, the application of EU norms will require familiarization with the vast body of case law of the EU Court of Justice. And not just simple familiarization, but its active application by Moldovan judges when hearing the cases. And that will inevitably cause some problems. For a number of reasons. We can give an example of how the case law of the European Court of Human Rights (whose decisions are obligatory for Moldova) is applied in Moldova. Many judges still react quite negatively when counsels while addressing the court cite ECtHR's cases. Even though the courts have to apply those cases. We can only make a guess at what the reaction of Moldovan judges will be to the parties trying more and more frequently to refer in their arguments to the cases decided by the Court of Justice of the European Union. The phrases of the type "We are not an EU country, so the European court is no authority for us" are not unlikely to be heard from the judges. And that is the problem of psychological nature that we will also have to overcome.

Thirdly, the implementation of European case law will require the approach that would be significantly different from the point of the legal technique. Unfortunately, the skills of Moldovan judges cannot be compared to those of the lawyers and judges in EU countries. This can be seen from how the provisions of the European Convention on Human Rights are applied in Moldova. We can take and compare judgments issued by Moldovan judges and by the European Court of Human Rights. Unfortunately, lack of clear structure and consistency in the reasons of the court, lack of internal logic are very characteristic of the judgments pronounced by Moldovan courts. Even in cases when they adopt just decisions it is sometimes very difficult to see and understand how they actually come to particular conclusions.

For successful implementation of European law in Moldova we will have to change not only the psychology, but also to learn the new skills and techniques that are not taught in our universities. And that refers not only to judges but also to lawyers, prosecutors and legal professionals.

I would suggest that lawyers (meaning members of the bar) will be in the most advanced position. Being in the situation of fierce competition with each other for the client, and then standing up for that client, they are those who are mostly interested in acquiring new skills and knowledge. Those lawyers who will not be able to adapt, will become less and less competitive.

Conclusions

To summarize what was said above, we can suggest that the full-scale implementation and application of Europena Law in Moldova is becoming an objective reality. Long before Moldova can become an EU candidate country (let alone its member).

This process will necessitate significant changes in approaches to the application of law. Moldovan judges and other public authorities will have to accept the fact that they will have to apply not only the rules existing in the EU, but also to follow its established case law, and above all the case law of the Court of Justice of the European Union. They will have to follow indirectly many of the decisions adopted by European institutions without yet being a member-state of the EU.

Without entering the debate over how this fact influences the sovereignty of the Republic of Moldova, I would like to note that it will require significant revision of the approaches in the work of public authorities, courts and lawyers. Significant changes should also be introduced into the system of higher legal education in universities that should emphasize the importance of a deeper study of EU law and its enforcement.


In fact such process should have already started, given the declarations included into the new Moldovan laws. However, in the future, after the signing of the Association Agreement with the EU, the full-scale implementation of such changes into the law enforcement practice will become the obligation for the Republic of Moldova. 

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