Published online by Cambridge University Press: 07 August 2017
How does EU legislation impact the Member States? Arguably, no other issue is more closely connected to national sovereignty. However, existing research has thus far failed to deliver a univocal answer to this question. Instead, quantitative research – from political scientists and public administration scholars – has resulted in very diverging conclusions. By contrast, the legal perspective on the relationship between the EU and its Member States has been dominated by a focus on the principles of conferral and subsidiarity, as well as on the delineation and use of EU powers. Such an approach makes it equally difficult to identify the actual and concrete impact of EU legislation. Yet, it is contended in this contribution that a legal perspective, focusing on the actual content of EU legislation, is needed to come to a better understanding of the EU’s legislative impact on the Member States.
The scope of application and the added value of EU legislation as well as national discretion therein are three key elements for determining the impact of EU legislation. The scope of application concerns the situations covered by EU legislation; added value regards the question of how EU legislation relates to other (pre-existing, overarching and adjacent) EU law. Policy choices and other room for manoeuvre for the Member States included in EU legislation makes for national discretion. Examples may be open norms or non-defined terms and concepts and the possibility to apply exceptions at the national level to general rules of EU legislation. Three areas of EU law are compared, each with a focus on a particular legislative act: migration law (the Family Reunification Directive); freedom to provide services (the Services Directive) and criminal law (the Framework decision on the European Arrest Warrant).
I would like to thank the editors and anonymous reviewer(s) for their helpful comments, and Laurens van der Kreij for all his help.
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4 Section 18 European Union Act 2011 (the so-called ‘Sovereignty Clause’).
5 Inter alia prohibiting Ministers of the Crown to vote in favour of or otherwise support a decision at the EU level unless the draft decision is approved by Act of Parliament (see eg section 7(3) European Union Act 2011).
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11 European Parliament and Council Directive (EC) 2000/36  OJ L197/19.
12 European Parliament and Council Directive (EC) 2006/123  OJ L376/36.
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20 Protocol No 30 (annexed to the Treaty establishing the European Community). This protocol has been replaced with a new protocol which no longer contains the provision.
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25 COM(2007) 502 final, A Europe of Results.
26 A pre-Lisbon empirical study by Bogdandy et al has demonstrated this, and there is no indication this has significantly changed since then. Bogdandy, A von et al, ‘Legal Instruments in European Union Law and their Reform: A Systematic Approach on an Empirical Basis’ (2004) 23(1) Oxford Yearbook of European Law 91 CrossRefGoogle Scholar.
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28 European Parliament and Council Directive (EC) 2000/36  OJ L197/19.
29 For some policy areas, such as criminal law, directives have been prescribed (see inter alia Art 82, para 2; Art 83 TFEU). This may not explain, however, why the choice of legal acts depends on the policy area, as the TFEU mostly refers to ‘measures’, thereby leaving it to the discretion of the EU legislature to opt for either regulations or directives.
30 European Parliament and Council Directive (EC) 2005/29  OJ L149/22.
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32 See eg Carlo Tedeschi v Denkavit Commerciale s.r.l., C-5/77, EU:C:1977:144.
34 The effects have therefore been described as a horizontal transfer of sovereignty: KA Nikolaïdis, Mutual Recognition Among Nations. The European Community and Trade in Services (1993) PhD thesis, Harvard, p 491.
35 The existence and the scope of the European Union’s powers and influence on national criminal law has been the focus of intense academic debate. See Mitsilegas, V, EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe (Hart Publishing, 2016)Google Scholar, ch 2 (in particular 2.IV).
36 This must be seen as a guarantee for the Member States that lost their veto powers.
37 On the basis of the Court decision in Commission v Council, C-176/03, EU:C:2005:542, which has received much critique in legal doctrine.
38 Cf Art 82 TFEU.
39 Council Framework Decision (EC) 2001/220/JHA  OJ L82/1; European Parliament and Council Directive (EC) 2012/29 OJ L315/57.
40 APAV/Victim Support Europe, Victims in Europe: Implementation of the Framework Decision on the Standing of Victims in the Criminal Proceedings in the Member States of the European Union (2009) Project Victims in Europe Report, http://ec.europa.eu/justice/news/consulting_public/0053/project_victims_europe_final_report_en.pdf.
41 Art 2 Directive (EC) 2012/29.
42 Council Framework Decision (EC) 2002/584/JHA  OJ L190/1.
43 Although the Framework decision itself is silent on the issue, the Court nevertheless concluded that Member States could not include refusal grounds that are not mentioned in the Framework decision: Wolzenburg, C-123/08, EU:C:2009:616.
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48 The Radu decision is the most notable example: Radu, C-396/11,EU:C:2013:39.
49 The above mentioned decision in Radu is a case in point here, as is the Melloni decision of the Court: Melloni, C-399/11, EU:C:2013:107.
50 Joined cases Aranyosi and Căldăraru, C-404/15, EU:C:2016:198.
51 Bob-Dogi, C-241/15, EU:C:2016:385.
52 Dworzecki, C-108/16 PPU, EU:C:2016:346 and Poltorak, C-452/16 PPU, EU:C:2016:858 respectively.
53 T van den Brink, ‘Horizontal Federalism, Mutual recognition and the Balance Between Harmonization, Home State Control and Host State Autonomy’ (2016) 1(3) European Papers 938.
54 Council Framework Decision (EC) 2002/475/JHA  OJ L164/3.
55 Art 205 Dutch Code on Criminal law.
56 Even though at the level of policy, initiatives such as European Commission, Global Approach to Migration and Mobility (COM (2011) 743 final) and Council of the European Union, European Pact on Immigration and Asylum (Council Document 13440/08, 24 September 2008) have been developed and adopted, no such an integrated approach to migration exists at the level of legislation. The latter pact contains a call for concrete measures in relation to a set of common principles labelled as ‘basic political commitments’ ( Carrera, S and Guild, E, ‘The French Presidency’s European Pact on Immigration and Asylum: Intergovernmentalism vs. Europeanisation? Security vs. Rights?’ (2008) September (170) CEPS Policy Briefs, p 3 Google Scholar.
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57 Researchers: Council Directive (EC) 2005/71  OJ L289/15; EU family members: European Parliament and Council Directive (EC) 2004/38  OJ L158/77; seasonal workers: European Parliament and Council Directive (EU) 2014/36  OJ L94/375; asylum seekers: European Parliament and Council Directive (EU) 2011/95  OJ L337/9.
58 Prechal, S and van den Brink, T, Methoden en Technieken van Omzetting van EU-recht (Research report for the Dutch Council of State), p 18, https://www.raadvanstate.nl/assets/publications/publicaties/rvs_methoden_omzetting-2.pdf Google Scholar.
59 The term ‘balance’ is used here in a neutral way. This implies that no normative judgement is made whether the balance that has been struck is ‘optimal’, but simply that these interests have played a role in the policy choices that have led to the eventual acts. Obviously, there has been a lot of debate on the rightness of these choices.
60 Council Directive (EC) 2008/115  OJ L348/98; Council Directive (EC) 2001/40  OJ L149/34; Council Directive (EC) 2003/86  OJ L251/12; Council Directive (EC) 2003/9  OJ L31/18.
61 Council Directive (EC) 2008/115  OJ L348/98, Art 5.
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63 Of particular relevance here is the report by Groenendijk on the implementation in a number of Member States, Groenendijk, K et al, ‘The Family Reunification Directive in EU Member States. The First Year of Implementation’ (2007) 1 Nijmegen Migration Law Working Papers Series Google Scholar.
64 This regime is laid down in European Parliament and Council Directive (EC) 2004/38  OJ L158/77.
65 COM(2008) 610 final, Report from the Commission to the European Parliament and the Council on the application of Directive 2003/86/EC on the right to family reunification, p 4.
66 K and A, C-153/14, EU:C:2015:453. See also S Peers, ‘Integration Requirements for Family Reunion: The CJEU Limits Member States’ Discretion’ (Euanalysis, 9 July 2015) http://eulawanalysis.blogspot.nl.
67 European Parliament v Council, C-540/03, EU:C:2006:429, consideration 59. For a more detailed and elaborate analysis of the relation between the Directive and international legal provisions, most notably Art 8 EConHR, see: Boeles, P et al, European Migration Law (Intersentia, 2009), pp 183–187 Google Scholar.
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69 See note 67 above.
70 Ibid, para 105.
71 See Boeles et al, note 67 above, p 193.
72 Council Directive (EC) 2003/86  OJ L251/12, Art 4(2).
73 Ibid, Art 3(5).
74 Boeles et al, see note 67 above, p 202.
75 European Parliament and Council Directive (EC) 2006/123  OJ L376/36.
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78 Stelkens, U et al, ‘General Comparative Report on the Research Project ‘The Implementation of the Services Directive in the EU Member States’ of the German Research Institute for Public Administration Speyer’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012)CrossRefGoogle Scholar.
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81 Trybus, M and Berger, A ‘The implementation of the Services Directive in the United Kingdom’ in U Steklens et al, The Implementation of the EU Services Directive: Transposition, Problems and Strategies (T.M.C. Asser Press, 2012), pp 636–644 Google Scholar.
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83 These exceptions may be found in Art 2-2a of the Directive.
84 Femarbel, C-57/12, EU:C:2013:517.
85 Zahn has criticized this wide measure of national discretion for leading to a lack of legal certainty: Zahn, R, ‘The regulation of healthcare in the European Union: Member States’ discretion or a widening of EU law? Femarbel and Ottica New Line’ (2014) 51(5) Common Market Law Review 1521 Google Scholar.
86 Consideration 40 of the Decision.
87 See eg Prechal et al, note 82 above, p 447.
88 Davies, see note 77 above, p 236.
89 Opinion of Advocate General Szpunar in Trijber and Harmsen, joined cases C-340/14 and C‑341/14, EU:C:2015:505. The Court referred in these cases to the existence of a possible cross-border dimension, thus leaving the answer open to the fundamental question on the application of the Directive in purely internal situations.
90 The Court avoided the issue in the Trijber and Harmsen cases but it is currently at stake again in pending cases Visser Vastgoed, joined cases C-360/15, X and C-31/16, EU:C:2017:397.
91 COM(2004) 2 final, Proposal for a Directive of the European Parliament and of the Council, Art 16.
92 Griller, S ‘The New Services Directive of the European Union Hopes and Expectations from the Angle of a (Further) Competition of the Internal Market’ in HF Köck and MM Karollus (eds), The New Services Directive of the European Union, (2008) III FIDE proceedings, p 391 Google Scholar.
93 If this Chapter would apply to purely internal situations, this would make for a significant difference with primary law, as was discussed above.
94 Cf GT Davies, note 77 above.
95 In the absence of case law on the matter, it is however still a point of discussion whether the Court will still allow Member States to rely on other grounds derived from the public interest, see eg Barnard, C, ‘Unraveling the Services Directive’ (2008) 45(2) Common Market Law Review 323 Google Scholar, pp 366–368.
96 Griller, note 92 above, p 415.
97 Davies, note 77 above, p 245.
98 Stelkens et al, note 78 above, p 18.
99 This does imply however, that the burden of proof on the legality of such national rules has shifted which does impact national discretion: Griller, note 92 above, p 415.