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]
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 Data Protection Directive, officially Directive 95/46/EC, enacted in October 1995, was a European Union directive which regulated the processing of personal data within the European Union (EU) and the free movement of such data. The Data Protection Directive was an important component of EU privacy and human rights law.
The Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, procedure number 2002/0047 (COD) was a proposal for a European Union (EU) directive aiming to harmonise national patent laws and practices concerning the granting of patents for computer-implemented inventions, provided they meet certain criteria. The European Patent Office describes a computer-implemented invention (CII) as "one which involves the use of a computer, computer network or other programmable apparatus, where one or more features are realised wholly or partly by means of a computer program".
The main European legal instruments covering the mutual recognition of professional qualificationsis: Directive 2005/36/EC on the recognition of professional qualifications. The directive covers the European Economic Area and has been amended several times. The directive provides a modern EU system of recognition of professional experience and promotes automatic recognition of professional experience across the EU. The qualifications of some professions, such as doctors and architects, have been extensively harmonised by Directive 2005/36/EC. The directive offers more general guidelines for other professions, that have not been specifically regulated this Directive, or other specific rules. Any form of work that would normally be restricted in a member state to people who had gained a professional qualification in that member state are also open to nationals of the EU who have gained a similar professional qualification in another member state.
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.
Maximum harmonisation is a term used in EU law.
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.
Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs is a European Union directive in the field of industrial design rights, made under the internal market provisions of the Treaty of Rome. It sets harmonised standards for eligibility and protection of most types of registered design.
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 2018, and has been the subject of increasing European regulation since the 1970s because of its importance to the European single market.
The Burgerlijk Wetboek is the Civil Code of the Netherlands. Early versions were largely based on the Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of natural persons, legal persons, patrimony and succession. It also sets out the law of property, obligations and contracts, and conflict of laws. Proposed amendments will add a Book on intellectual property.
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.
Information technology risk, IT risk, IT-related risk, or cyber risk is any risk relating to information technology. While information has long been appreciated as a valuable and important asset, the rise of the knowledge economy and the Digital Revolution has led to organizations becoming increasingly dependent on information, information processing and especially IT. Various events or incidents that compromise IT in some way can therefore cause adverse impacts on the organization's business processes or mission, ranging from inconsequential to catastrophic in scale.
The European Telecommunications Standards Institute (ETSI) is an independent, not-for-profit, standardization organization in the field of information and communications. ETSI supports the development and testing of global technical standards for ICT-enabled systems, applications and services.
In the context of European integration, Europeanisation of law may be interpreted as
Alternative Investment Fund Managers Directive 2011 is a legal act of the European Union on the financial regulation of hedge funds, private equity, real estate funds, and other "Alternative Investment Fund Managers" (AIFMs) in the European Union. The Directive requires all covered AIFMs to obtain authorisation, and make various disclosures as a condition of operation. It followed the global financial crisis. Before, the alternative investment industry had not been regulated at EU level.
European organisational law is a part of European Union law, which concerns the formation, operation and insolvency of public bodies, partnerships, corporations and foundations in the entire European Union. There is no substantive European company law as such, although a host of minimum standards are applicable to companies throughout the European Union. 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 Principles of International Commercial Contracts 2016 is a set of 211 rules for international contracts. They have been drawn up since 1984 by an international working group of the inter-governmental organization UNIDROIT, and they were ratified by its Council representing 64 governments of member states.
The general principles of European Union law are general principles of law which are applied by the European Court of Justice and the national courts of the member states when determining the lawfulness of legislative and administrative measures within the European Union. General principles of European Union law may be derived from common legal principles in the various EU member states, or general principles found in international law or European Union law. General principles of law should be distinguished from rules of law as principles are more general and open-ended in the sense that they need to be honed to be applied to specific cases with correct results.
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.
