The Selective Harmonization Impact of the Coordination Policy

Abstract

The strong interdependence of Member States’ legal orders was the reason why Member States decided for coordination and for monitoring each other’s legislative activity. Over the years, the Contracting States and the Union legislature have established more and more obligations referring to national legislatures in this respect. The most common of these are the well-known duties to transpose directives into national law. These EU legal acts contain substantive law, rights and/or obligations for individuals, and thus encompass material provisions that can be subject to a transposition process. However, this EU-wide harmonization is not the only way to influence national legal orders. This article deals with the kind of formal obligations which compel Member States to consult EU institutions on draft laws during their national legislative procedures. These obligations are of a procedural nature, with the outcome of the consultation procedure resulting in substantive law. This article shows that in respect to the Information Directive, the Court applies different criteria of inapplicability than it does for ‘typical’ or harmonizing directives. The Court examines the breach of the obligation to notify contained in the Information Directive, particularly if the criterion constituting a ‘substantial procedural defect’ renders such technical regulations inapplicable so that they may not be enforced against individuals. The Information Directive used to enjoy great attention from legal scholars and national courts as well as the Court of Justice of the European Union. The latter confirmed the Information Directive’s direct applicability in several cases. Sometimes it did not heed opinions of the General Advocates and established settled case law in this regard. In other cases, however, it declined the enforcement of this directive in proceedings between private parties. The goal was to avoid disruptions of the internal market. It thus limited the impact of the unconditional procedural obligations resulting from the Information Directive to cases impacting the internal market only. This may have been necessary since obligations to consult constitute unconditional duties and all Member States’ draft laws are supposed to be notified with no difference as to whether they refer to the internal market or not. The wording of the obligations to consult EU institutions rules that the Member State issuing a new law may act and – if it so desires – enforce the new national law. However, the state is not completely free in doing so: it cannot conduct the legislative process from beginning to end.