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Xanthaki, Helen --- "Technical Considerations in Harmonisation and Approximation: Legislative Drafting Techniques for Full Transposition" [2012] ELECD 371; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 27

Section Title: Technical Considerations in Harmonisation and Approximation: Legislative Drafting Techniques for Full Transposition

Author(s): Xanthaki, Helen

Number of pages: 15

Extract:

27. Technical considerations in
harmonisation and approximation:
legislative drafting techniques for full
transposition
Helen Xanthaki*

WHY CONSIDER THE TECHNICALITIES OF
TRANSPOSITION?
Legal harmonisation is by no means an easy task. It requires exceptional abilities
to follow all aspects and developments of EU law, including the ever increasing
and ever dynamic interpretation and application of EU legislation by the ECJ; it
requires in-depth understanding of the will of the EU legislator as a means of in-
terpreting the commonly vague and often ambiguous provisions of EU legislative
texts; and it requires an excellent understanding of legislation and its functioning
at the national level, as a means of making legislative choices which can and will
work within the holistic and dynamic sphere that is the national legal system.
Legal harmonisation in the pre-accession era does not require different so-
lutions from legal harmonisation in the post-accession, the membership, era.
Admittedly, at the pre-accession time the national authorities of aspiring states
are now required to meet the additional requirement of the 1995 Madrid Euro-
pean Council, which demands the introduction of the necessary administrative
structures for the ultimate enforceability of the acquis. The additional Madrid
criterion for accession is interpreted as a command for effective and enforceable
transposing legislation,1 which is a far cry from the past requirement to transpose
EU law as and how the aspiring Member State saw fit.
However, the Madrid criterion is by no means another unfair order imposed
by the strong EU on ...