Characteristics of harmonisation
Harmonisation is usually not comprehensive but partial, in that it does not seek to create a sole authority of law on a particular subject. This is because measures to harmonise law cannot go further than that which is necessary. [3]
Harmonisation is unsystematic. The directives of the European Union do not focus on or contain comprehensive regulation of the entire law. The directives regulate some very specific issues and they regulate them only for particular situations or circumstances and only for particular types of parties. This is most prevalent in European Union contract law. [4]
Harmonisation generally takes place on two levels of governance, the overarching body and each of the members individually. Taking the European Union, the two levels are the European level and national level. Although both European and national legislators share the legislative responsibilities, neither of these bodies has final responsibility for the whole. Also, there is no superior political authority which has the final say on who is responsible for what, i.e. no overarching authority over the European and national legislators. The European Court of Justice may however determine the extent of harmonisation when determining cases. [4]
Harmonisation is dynamic, in that the instruments of harmonisation aim at change, in particular improving and establishing consistent conditions for the operation of legal principles. [4]
Harmonisation versus unification
The unification and harmonisation of laws are similar in the sense that both involve approximating several legal systems and both are also oriented towards establishing some level of integration from a previous situation characterized by diversity. [5] On the other hand, unification and harmonisation have different fundamental aims. The former works towards complete unity in substance and detail whereas the latter avoids complete uniformity, [6] and is primarily concerned with approximating the fundamental principles of national laws. [7] In unification, for example, a new law completely replaces the national laws that have existed before. A harmonisation law on the European level does not exceed mere approximation [8] and leaves the national differences in place as long as they are not expressly regulated by the harmonising law. [7] Here, national laws merely become closer but not identical. [9]
Unification also focuses on substituting or combining two or more legal systems and replacing them with a single system. Harmonisation on the other hand seeks to co-ordinate different legal systems by “eliminating major differences and creating minimum requirements or standards”
“Unlike unification which contemplates the substitution of two or more legal systems with one single system, harmonisation of law arises exclusively in comparative law literature, and especially in conjunction with interjurisdictional, private transactions. Harmonisation seeks to ‘effect an approximation or coordination of different legal provision or systems by eliminating major differences and creating minimum requirements or standards’ [10] ”. [11]
Harmonisation can be seen as a step towards unification and, in a way, harmonisation aims or strives towards unification.
Efforts to achieve harmonisation
Harmonisation is not a new concept. However, the problem is that no harmonisation project has ever reached completion. That is due to the nature of harmonisation, it is designed to incorporate different legal systems under a basic framework.
This is the appeal of harmonisation, it takes into account the local factors yet applies general principles to make a consistent framework of law. It generally incorporates local factors under a relatively unified framework. [12] An example of harmonisation can be drawn from the European Union and the use of Directives.
Directives require transposition into the domestic legal system of the Member State in order to become effective. If a Member State fails to transpose the Directive in a timely manner or fails to do it at all, the Directive will take 'direct effect', that is, individuals are able to derive rights from that Directive directly despite not being transposed into domestic law. [13] A Directive could be transposed through enactment under legislation from the national parliament or through agreement by reference. [14] The Directives are flexible to the extent that the national authorities of the Member States have the choice of the form and method of the implementation of the Directive. This takes into account the fact that Member States have differing legal systems. [15] Hence this allows the establishment of a harmonised framework of laws whilst preserving the established national laws of each member. This is the major appeal of harmonisation over unification.
Harmonisation can be achieved in two ways, actively or passively. The most common is the active pursuit of harmonisation usually through the enactment of legislation which incorporates the harmonised principles into the local law. Passive harmonisation may occur through non-legislative agreements or a convergence of case law. So far, passive harmonisation is the least successful since the non-legislative agreements tend to be voluntary. The convergence of case law is more promising since:
"All that matters is that the courts of different European States achieve similar results in the same cases, regardless of which norms, doctrines or procedures they apply in order to reach this end." [16]
Harmonization of substantive criminal law
The competence of the EU with regard to substantive criminal law is limited to only include the establishment of minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crimes with a cross-border dimension. Therefore, the EU may outline the specific criminal conduct and the minimum sanctions for an offence that a Member State must criminalise within their domestic system. Common minimum rules are allowed in areas concerning the definition of criminal offences and sanctions of particularly serious crimes with a cross-border dimension, resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These serious crimes are terrorism, human trafficking, sexual exploitation of women and children, drug trafficking, arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
The EU has assumed some competence to ensure harmonisation of laws where these address ‘particularly serious crimes with a cross-border dimension’. So far, the legislation adopted by the EU has focused on harmonising the definition of offences, sanctions and questions of jurisdiction.
Harmonisation of criminal procedural law
Harmonisation of criminal procedural law only entails adapting national law to European requirements, not completely replacing national law with European standards. Adopting appropriate measures regarding the fight against crime should be undertaken to achieve the objective of the EU to provide an area of freedom, security and justice, where the EU has shared competence with Member States. The EU has the power to act only as far as the Member States cannot sufficiently do themselves and must not go beyond what is necessary to achieve the objectives of the Treaties.
Minimum rules may be prescribed by a Directive in the areas of mutual admissibility of evidence, rights of individuals in criminal procedure and the rights of victims of crime. In other aspects of criminal procedure, legislation to harmonise must be unanimously decided by the Council and approved by the European Parliament.
A directive is a legal act of the European Union that requires member states to achieve particular goals without dictating how the member states achieve those goals. A directive's goals have to be made the goals of one or more new or changed national laws by the member states before this legislation applies to individuals residing in the member states. Directives normally leave member states with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of legislative procedures depending on their subject matter.
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
Gold-plating is a term used to characterise the process whereby the powers of an EU directive are extended when being transposed into the national laws of a member state.
Minimum harmonisation is a term used in European Union law.
Maximum harmonisation is a term used in EU law.
The European Public Prosecutor's Office (EPPO) is an independent body of the European Union (EU) with a juridical personality, established under the Treaty of Lisbon between 24 of the 27 states of the EU following the method of enhanced cooperation. The EPPO was established as a response to the need for a prosecutorial body to combat crimes affecting the financial interests of the European Union (EU). The idea of establishing the EPPO gained momentum with a legislative proposal put forth by the European Commission in 2013. After lengthy negotiations and discussions within the European Council, the European Parliament, and Member States, Regulation (EU) 2017/1939 was adopted on October 12, 2017, formalizing the creation of the EPPO. The EPPO Regulation is the EPPO's legal basis, as it outlines the objectives, structure, jurisdiction, and operational procedures. Directive (EU) 2017/1371, also known as the PIF Directive, specifies the criminal offences affecting the EU's financial interest falling under the EPPO's jurisdiction. The EPPO's primary mandate is to investigate and prosecute offences such as fraud, corruption, and money laundering that harm the financial interests of the EU, as defined by the PIF Directive. The EPPO represents a significant step towards a more integrated and effective approach to combating transnational crimes within the EU, fostering collaboration and coordination among member states to protect the Union's financial resources. As an independent EU body, the EPPO plays a crucial role in ensuring the rule of law and safeguarding the integrity of the EU's financial system. The EPPO is based in Kirchberg, Luxembourg City alongside the Court of Justice of the European Union (CJEU) and the European Court of Auditors (ECA).
The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. It is a simplified cross-border judicial surrender method, and has replaced the lengthy extradition procedures that used to exist between member states. The EAW has been in force since 1 January 2004 in all Member States.
The Unfair Commercial Practices Directive 2005/29/EC regulates unfair business practices in EU law, as part of European consumer law. It requires corresponding laws to be passed that incorporate it into each member state's legal system. It is intended to provide a level playing field in the single market, reducing trade barriers.
Government procurement or public procurement is undertaken by the public authorities of the European Union (EU) and its member states in order to award contracts for public works and for the purchase of goods and services in accordance with principles derived from the Treaties of the European Union. Such procurement represents 13.6% of EU GDP as of March 2023, and has been the subject of increasing European regulation since the 1970s because of its importance to the European single market.
The European driving licence is a driving licence issued by the member states of the European Economic Area (EEA); all 27 EU member states and three EFTA member states; Iceland, Liechtenstein and Norway, which give shared features the various driving licence styles formerly in use. It is credit card-style with a photograph. They were introduced to replace the 110 different plastic and paper driving licences of the 300 million drivers in the EEA. The main objective of the licence is to reduce the risk of fraud.
The Trade Marks Directive 2015 harmonises trade mark rights in European Union law.
European tort law, as a term, is not strictly defined and is used to describe a number of various features concerning tort law in Europe. The concept developed alongside other major historic developments of European integration.
The European civil code (ECC) is a proposed harmonisation of private law across the European Union.
In the context of European integration, Europeanisation of law may be interpreted as
The area of freedom, security and justice (AFSJ) of the European Union (EU) is a policy domain concerning home affairs and migration, justice as well as fundamental rights, developed to address the challenges posed to internal security by collateral effects of the free movement of people and goods in the absence of border controls or customs inspection throughout the Schengen Area, as well as to safeguard adherence to the common European values through ensuring that the fundamental rights of people are respected across the EU.
Victims' rights are legal rights afforded to victims of crime. These may include the right to restitution, the right to a victims' advocate, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.
Mutual recognition occurs when two or more countries or other institutions recognize one another's decisions or policies, for example in the field of conformity assessment, professional qualifications or in relation to criminal matters. A mutual recognition agreement (MRA) is an international agreement by which two or more countries agree to recognize one another's conformity assessments, decisions or results. A mutual recognition arrangement is an international arrangement based on such an agreement.
European company law is the part of European Union law which concerns the formation, operation and insolvency of companies in the European Union. The EU creates minimum standards for companies throughout the EU, and has its own corporate forms. All member states continue to operate separate companies acts, which are amended from time to time to comply with EU Directives and Regulations. There is, however, also the option of businesses to incorporate as a Societas Europaea (SE), which allows a company to operate across all member states.
The Directive on the accessibility of websites and mobile applications also known as Directive (EU) 2016/2102 was adopted by the European Union (EU) in 2016. This Directive applies to public sector organizations of member states of the European Union. The goal was to ensure that all public sector organizations were accessible for the 80 million people with disabilities in the EU.
