Complexity of EU Law in the Domestic Implementing Process

This article highlights how the complexity of EU secondary law (other than self- executing acts) can cause real difficulties at the stage of its transposition at national level. Two practical examples, involving the intervention of the Commission, illustrate the problem. It is assumed, on the one hand, that the general principles of law (legal certainty, legitimate expectations and transparency) require the EU legislator to ensure intelligibility and drafting quality, and on the other hand that these features are of the essence not only for citizens and for business, but also to enable the national authorities to adopt domestic implementing measures in an effective and timely manner. In that perspective, the article outlines some tentative methodological suggestions, while addressing, in the light of the ECJ case-law, the methods of interpreting EU law, the role of recitals, the Commission’s use of soft-law instruments to guide national implementing measures, as well as the proactive attitude from Member States within and outside the Council. A practical suggestion is made to establish a close connection at national level between the personnel taking part in the drafting of an EU legal act (upstream phase, i.e. those people contributing to the draft of legislation at the Council level) and the personnel engaged in the process of implementing that act at the domestic level (downstream phase). Linking the two phases so as to rely on the same national staff for advising on both appears to be a quite simple scheme to ensure better understanding of the EU legal texts and to sound a warning wherever there is a risk of an infringement due to inadequate implementation.