The Copy/Paste Approach to Transpose EU Directives

EU members frequently transpose EU directives by using a copy/paste approach, therefore introducing the full text of the directive into national law without adapting it. This approach allows a common legal framework in Member States, but it also creates problems. On one hand, new legislation resulting from a copy/paste approach may be a less effective piece of legislation due to its non-resemblance to the national legislative framework on the subject. On the other hand, clarity may also be at stake because interpretation may be more difficult due to the use of different legal terms from the national ones. Finally, it provides room for conflicts if the new legislation does not fit into the national framework.
In this intervention, we will be discussing the pros and cons of the copy/paste approach taking into consideration each of the above-mentioned issues and how does the need to ensure the effectiveness of the EU law, interpretation and clarity of legislation impact over this subject.

How to reconcile the drafting rules and practices of the Member-States with the rules and practices of the EU?

Many of the challenges in ensuring a harmonised application of EU legislation are connected to issues of intelligibility and quality of the drafting. However, problems also stem from the differences between the EU’s and the Member States’ legislative drafting rules. These include, eg, the rules regarding definitions or lengthy complex sentences. As most of the EU legislation must be implemented by the Member States, the differences can be problematic. In several cases, the practices of the EU are integrated into the Member State’s drafting rules. This leads to a harmonization of the structure of the legal acts themselves as well as of the legal drafting techniques. The loss of diversity of national drafting traditions and the possibility of the adoption of solutions not suited for a particular Member State can be problematic. When harmonization is not possible, the differences can also be considered as inducing non-compliance, unrelated to any opposition to the substance of the rules.

Multilevel legislation in the Brazilian Federation: recent case law on decentralization and the emergence of conditioned federal funds transfers

One key aspect of Brazilian federalism is the shared legislative authority between the Union and the States on issues such as environment, health care and education. It adopts a general clause which commands: “In the concurrent areas of legislation, the authority of the Union shall be restricted to general norms”.
Our intervention is focused on the case law of the Brazilian Supreme Court about the extend of that “general norms” clause. In the Covid-19 crisis, several decisions were delivered on the topic, restricting federal authority specially on the health care policies.
As a response to the recent case law, a new trend in the federal legislation is emerging creating conditions to federal public funds transfers to States and Municipalities, related to legislation reforms according to federal standards of good governance and transparency. We will discuss how far these conditions can be constitutionally admissible and how States and Municipalities are complying with it.

Discussant

Commentator and discussant of the papers.

Discussant

Commentator and discussant of the papers.

Implementation and monitoring of supra-state binding legal instruments: lessons learned from United Nations Conventions in Portuguese Speaking Countries

The point of departure of our analysis will be three-folded: (a) the reality of the legal framework in Portuguese Speaking Countries; (b) the United Nations Convention against Transnational Organized Crime, the main international instrument in the fight against transnational organized crime; and (c) the United Nations Convention against Corruption, the only legally binding universal anti-corruption instrument. These Convention’s far-reaching approaches and the different characters of their provisions (mandatory in some cases), combined with the instruments prepared to support their implementation and monitoring, and the different stages of development of the legal frameworks of Portuguese Speaking Countries, make this specific universe a toolbox from where we can extract different lessons for a better implementation of supra-state binding legal instruments and, through it, enable us to prepare better legal responses to global problems.