SMEI III Guidelines for Law Approximation

GUIDELINESS FOR LAW APPROXIMATION Adam Lazowski Cezar Herma Julija Brsakoska Bazerkoska Aida Gugu BushatiSeptember 2016 1

About SMEI IIISupport to the European Union Integration Process (phase III, SMEI 3) is a technicalassistance project dealing with the horizontal issues of management of Europeanintegration in Albania. It is not just a successive (third) project of such kind delivered tothe Government of Albania via its Ministry of European Integration. Such projects arerather common among the candidate and potential candidate EU countries and typicallysupport strengthening of functions for which the main institution for co-ordination ofEU integration affairs is in charge. While to some degree covering all horizontalEuropean integration management functions in Albania, SMEI 3 technical assistanceproject especially supports strengthening of legal approximation, capacity building viatraining and improvement of institutional and inter-institutional management ofEuropean integration demands and last but not least public information about Europeanintegration. These issues form also the building blocks (components) of SMEI 3 project,according to which the results to be achieved were formulated.The overall objective of this project is to achieve adequate progress in the EU Integrationprocess of the Albanian government based on a long term strategy before accession.The SMEI 3 project is financed under IPA 2010 National Programme for Albania and isimplemented by a consortium led by Fineurop Support (Italy), in association with Collegeof Europe (Belgium), East West Consulting (Belgium), Eurecna (Italy). A contract withthe European Union delegation was signed on 23 December 2011. The project has startedits activities on 30 January 2012.The main areas of support planned through the SMEI 3 technical assistance project arestrengthening of legal approximation (Component 1), capacity building via training andimprovement of institutional and inter-institutional management of European integration(Component 2) and public information about European integration (implementation ofthe Government’s EU communication strategy – Component 3). 2

Table of ContentIntroduction.................................................................................................................................... 4Chapter 1: Law Approximation ................................................................................................... 5 1. Legal Basis for Approximation with EU Law in Albania ........................................ 5 2. What is Approximation? ................................................................................................... 6 2.1. General Requirements for EU Legal Approximation............................................ 9 2. 2. What is the Deadline for the Approximation?...................................................... 11 3. Planning of the Approximation Process..................................................................... 11 3.1. The Inter-institutional Working Group for European Integration .................. 15 3. 2. National Plan for European Integration................................................................ 16 3. 3. The Structure of the National Plan for European Integration ........................ 19Chapter 2: Sources of EU Law and their Implementation Methods.................................... 22 1. Primary Law ....................................................................................................................... 22 2. The General Principles of European Union Law .................................................... 23 3. International Agreements............................................................................................... 25 4. Secondary Law................................................................................................................... 26 5. EU Approximation Tools and Techniques ............................................................... 33 6. Where and how to Search for EU Law?...................................................................... 41 7. The Official Journal of the European Union ............................................................ 43Chapter 3: Choice of the Right Legal Instruments of Approximation with EU Legislation........................................................................................................................................................ 45 1. Sources and Hierarchy of the Albanian Legal Acts................................................. 45 2. Legal Approximation: Step by Step ............................................................................. 53 3

IntroductionThe main purpose of this manual is for the Albanian policy and law makers, which arefamiliar with the domestic legal system, to become familiar with some basic techniques oflegal approximation. Its main aim is to support Albania in the process of approximationwith the EU legislation in the pre-accession period.When it comes to the EU law implementation, the EU member states cooperate in manycases with each other and with the European Commission at this stage. In this context apre-accession country situation is less favourable. However, a candidate country, in somecases, can take into account the years of experience of EU member states in order tominimize costs and burdens and to maximize benefits and efficiency in implementing andapplying of certain EU legal acts. It is thus recommended for Albania to benefit from EUmember states experience, especially in most difficult sectors (e.g. agriculture and foodsafety, environment, liberalization of transport, telecommunication and energy sectors).In that regard, this manual aims at giving comprehensive guidelines through theapproximation process which is not only consisted of drafting the national legislation inline with the EU law, but also by the planning process before and the properimplementation afterwards. Before drafting the Albanian policy and law makers have toplan – who does what and when – and after drafting proper implementation is needed.This manual is divided in three main chapters. The first chapter is dealing with theprocess of planning the law approximation, the main challenges and methods used. Thesecond chapter provides the reader with the information on the sources of EU law andtheir implementation methods. The third chapter focuses on answering the question –which is the right legal instrument for the approximation of the Albanian legislation withthe EU legislation. 4

Chapter 1: Law Approximation1. Legal Basis for Approximation with EU Law in AlbaniaThe Stabilisation and Association Agreement between Republic of Albania on one sideand the European Community and its Member States on the other was signed in June2006 and entered into force in April 2009. The SAA aims at supporting the strengtheningof democracy and the rule of law; contribution to political, economic and institutionalstability in Albania; providing a framework for political dialogue; support to transitioninto a functioning market economy and creation of a free trade area between the EU andAlbania. Moreover, particular importance is attached to the rule of law, the reinforcementof institutions at all levels in the areas of administration, particularly law enforcement andadministration of justice. The aim is to strengthen the independence of judiciary andimprovements of its efficiency, as well as improvement of functioning of police and otherlaw enforcement bodies, fight against corruption and organised crime.Albania presented its application for membership of the European Union on 28 April2009. Following a request by the Council, the Commission submitted its Opinion onAlbania’s application in November 2010. In its Opinion, the Commission assessed thatbefore accession negotiations could be formally opened, Albania still had to achieve anecessary degree of compliance with the membership criteria and in particular to meet the12 key priorities identified in the Opinion.In October 2012, the European Commission recommended that Albania be grantedcandidate status subject to the completion of key measures in the areas of judicial andpublic administration reform and revision of parliament’s rules of procedure.The Commission once again recommended that Albania be granted candidate status in its2013 Progress Report and identified 5 key priorities for the opening of accessionnegotiations. Those priorities are: public administration reform; the independence,efficiency and accountability of judicial institutions; fight against corruption; fight againstorganized crime; protection of human rights (including of Roma, anti-discriminationpolicies, as well as implementation of property rights).The European Council granted the candidate status to Albania on 27 June 2014, which isan important political signal for Albania and its citizens, showing that the country ismoving to the next phase of the European integration process.Albania, as a country willing to join the European Union, has an obligation to accept EUlaw in its entirety. The Preamble of the SAA affirms the commitment of Albania toapproximate its legislation in the relevant sectors to that of the Community, and toeffectively implement it. The process of the approximation of Albanian legislation withthe acquis communautaire is one of the principal obligations stemming from the SAA. 5

This process requires that Albanian laws be drafted in conformity with the EU acquis,reflecting its principles or standards in their text.According to the SAA, the process of the approximation of legislation with the EU acquiswill be developed in two phases for a ten year period (Articles 6 and 70 of the SAA).During the first phase (the first five years), the approximation will be concentrated on thebasic elements of the internal market acquis. That is, the legislation related to the fourfreedoms, as well as in other important fields such as competition and state aid,intellectual, industrial and commercial property rights, public procurement, standards andcertification, financial services, land and sea transport - devoting special importance tosecurity and environmental standards, as well as to social aspects, the legislation oncommercial companies, accounting, consumer protection, data protection, health andsafety in the workplace and equal opportunities. During the second phase (the second fiveyears), Albania will focus on the remaining parts of the acquis. With the end of the firstphase, the Stabilisation and Association Council will evaluate the progress made byAlbania and will decide whether this progress is sufficient to pass to the second phasewhere the aim is achieving full association.The progress of the implementation of the SAA is regularly assessed by EU Commissionwith the annual progress reports on Albania.Article 70 of the SAA has to be considered as an obligation to transpose the relevant EUlegislation into the Albanian legal order to the fullest extent possible as a condition sine quanon for EU membership. This is the reason why the SAA requires in any case a processthat is not complete with the adoption of the approximated law formally, but extends tothe implementation and enforcement of that law.The future accession treaty will expand the scope of application of the EU acquis toAlbania. During accession negotiations a candidate country may request some transitionalperiods and, in very exceptional cases, for permanent derogations in areas where the fullimplementation of EU law on the day of accession would be too difficult for economic,social or political reasons.2. What is Approximation?The law approximation is a unique obligation of the European Union membership. Thecountries aspiring to join the European Union must align their national laws, rules andprocedures in order to give effect to the entire body of EU law contained in the acquiscommunautaire.Primarily, the countries by choosing the most appropriate national mechanism to reflectUnion obligations need to change their national laws, rules, and procedures in order tofully incorporate the requirements of the relevant EU law. This is a process known astransposition, where countries have considerable discretion in choosing the appropriatenational legal act to transpose the EU legislation. 6

Afterwards, the country needs to have the institutions and budgets necessary to carry outthe laws and regulations, also known as the implementation or practical application of theEU law.Finally, in order to comply with the EU legislation fully and properly, the country needsto provide the necessary controls and penalties to ensure the enforcement of the rules.The pre-accession approximation is an opportunity for the countries to organize theirinstitutions and procedures and to train their staff for the daily processes andresponsibilities of the European Union law making, implementation and enforcement. Inthe broadest sense legal approximation means the transposition of provisions of EU lawinto the national legislation, implementation of the provisions of such national legislationby the national competent public authorities and their enforcement by the courts and lawenforcement agencies.The closer the candidate country’s legislation to EU law, the better its starting position inthe accession negotiations. A detailed analysis of divergences combined with a thoroughregulatory impact assessment are sine qua non conditions for preparing negotiationpositions and securing national interests during accession negotiations. This should becarried out well before the commencement of negotiations, together with a convincingand objective justification of requests for transition periods, otherwise an accedingcountry risks not identifying the approximation obligations that are too demanding for itseconomy or other areas of state policy. In some cases, Albania may decide to keep inforce, for various reasons, some domestic provisions not harmonized with the EU law.This should always be, however, a conscious decision taken at the political level, but not aresult of negligence. 7

Example from Poland–EU accession negotiationsUnder the Polish road transport legislation in force in 1999, themaximum allowable single axle load limit was 80 kN (100 kN on 6%of the total road network of Poland), whereas EU Council Directive96/53/EC permitted a limit of 115 kN. The Polish road networkhardly sustained even 80 kN weight limits, which was evidenced bysystematic, accelerated degradation. The upgrading works wereunable to catch up with this process. The enormous scope ofnecessary investments and the related financial outlay of theadjustment of Polish road infrastructure to Community requirementsand limited capacity to increase investment in the area forced Polandto apply for a long-term transition period as far as the 115 kN loadlimit was concerned (as well as allowing some types of heavy vehiclesto use the Polish road network). 8

During accession negotiations, firstly a transition period until 10 December 2010 to implement fully Directive 96/53/EC in Poland was agreed. Secondly, some heavy vehicles were allowed to use indicated Polish transit road infrastructure freely and some other road sections for special fees.From the other side, Albania has been obliged since 2009 “to ensure that its existing laws andfuture legislation shall be gradually made compatible with the Community acquis.” (Article 70 ofSAA). After accession to the EU Albania as an EU member state: o will be obliged to implement and apply EU law efficiently; it must take all appropriate measures to ensure the fulfilment of the obligations arising from this, in particular: • EU law requiring implementation needs to be transposed in legal acts of general application, • domestic provisions conflicting with EU law shall be repealed, • national courts and national law enforcement authorities shall give EU law priority over conflicting domestic law and they should interpret domestic law with due account of the EU law (the “pro-European interpretation” principle). o will be responsible to individuals for any harm caused through violations of Union law (by legislative, administrative and judicial acts and failures to act), o may be sued for not respecting EU law by the European Commission and the Court of Justice of the EU, and the Court can impose financial sanctions on the member state (Art. 258-260 TFEU). Under certain conditions EU law provisions will have a direct effect on the domestic legal system of Albania even if domestic law is not harmonized with the acquis.2.1. General Requirements for EU Legal ApproximationEU legal approximation is (or should be) an integral element of the ordinary legislativeprocess, both at the governmental and parliamentary stages. To include integration policyand the context of EU law from the very beginning of legislative works, the European 9

departments/directorates should be involved in the drafting of legislation in all lineministries. Approximation obligations resulting from Article 70 of SAA, as well aspolitical obligations, should be taken into account when planning, drafting and decidingupon all national legislation.EU legal approximation may be combined in one or more legal acts with changesresulting from domestic reasons. However, one should be aware that discrepancies inproblems not linked to EU law slow down the legislative process and thus the wholeprocess of approximation. It is thus recommended, for reasons of efficiency, not to joinsensitive legislative revisions of an internal character with drafts limited to EU lawapproximation.Following Article 70 SAA, priority areas of legal approximation are: • fundamental elements of the Internal Market acquis, • competition, • intellectual, industrial and commercial property rights, • public procurement, • standards and certification, • financial services, • land and maritime transport, • company law, • accounting, • consumer protection, • data protection, • health and safety at work and equal opportunities.A national expert (legislator) or a group of experts responsible for drafting national law incertain areas should be familiarized, besides relevant national and international law,legislative procedures and practice and domestic sector policies, with: • EU legislation binding upon Albania on the basis of EU-Albania agreements, • EU approximation requirements resulting from legal and political obligations (e.g. SAA and recommendations from SAA institutions), and from EU recommendations as well (e.g. annual Progress Reports from the European Commission, European Partnerships), • EU draft legislation (draft directives, regulations and decisions) that might be adopted by EU institutions soon, • Some examples of implementation methods applied in EU member states, • EU laws that will be binding for Albania as a member state of the EU.The implementation of some EU legal acts and principles requires more thanharmonization of one area of national law only. The full transposition of some EU acts of 10

horizontal character, especially directives, should include checking and if need beamending numerous domestic legal acts. For example, to implement services directive1one should eliminate from the legal system all the restrictions in providing services by EUcitizens and enterprises that are not compatible with it. The other example is the directiveon recognition of qualifications2 that requires introduction of rules on recognition ofqualifications to all domestic legal acts regulating professions.As EU approximation is a comprehensive, continuous and long term process thatrequires thorough knowledge of both domestic and European law, the coordinatingministry and all line ministries should develop/strengthen their relevant administrativecapacities. A possibility of designing appropriate plans for recruitment of furtherpersonnel as well as for the training of new and existing staff should be analyzed. Thegovernmental administration will rely on these capacities during the screening process,accession negotiations and final preparations to accession.An acceding country should set up and update a database with domestic legal acts alreadyharmonized with EU law and – for purposes of accession negotiations – identifyharmonization problems.2. 2. What is the Deadline for the Approximation?According to Article 70 of the Stabilisation and Association Agreement, theapproximation will start on the date of signing of the Agreement, and will graduallyextend to all the elements of the Community acquis in the period of ten years after theAgreement entered into force. The national laws, regulations and administrativeprocedures which are needed to give effect to the existing body of EU law must beadopted by the date of accession.3. Planning of the Approximation ProcessThe law approximation is a major exercise, since the Albanian national law needs to beapproximated with around 20 000 EU legal acts. For the legal approximation to besuccessful, it requires a lot of co-ordination, self-discipline and planning. The planning ofthe whole process is essential. The main aim of creating a plan for legal approximation isto have the acquis allocated between the chapters that are used for the accessionnegotiations and to set the deadlines which are realistic. Those deadlines should be basedon a regulatory impact assessment as well as clear division of tasks.Namely, the planning process should give an answer to the question – Who does Whatand When? And moreover, to answer the question who is in charge for co-ordination ofthe whole process.Primarily, the allocation of acquis between different line ministries is of pivotalimportance. However, since the EU law is a moving target and it changes continually, the1 Directive 2006/123/EC of 12 December 2006 on services in the internal market.2 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on therecognition of professional qualifications 11

Plan needs to be amenable to regular updates, taking into account developments in EUlaw. The Plan needs to set clear deadlines and clear responsibilities, esspecially in the caseswhen the responsibilities overlap between ministries. Example: The EU acquis falling under Chapter 19 – Social Policy and Employment needs to be carefully allocated among the different relevant line ministries. This chapter covers a broad area of law and therefore, several ministries need to be included in the approximation process. The main responsibility is within the Ministry of Social Welfare and Youth, but the approximation process will include other line ministries as well. Those are: Ministry of Education and Sports: Ministry of Health; Ministry of Urban Development and Tourism; Ministry of Internal Affairs; Ministry of Justice; Ministry of Finance; Ministry of Economic Development, Trade and Entrepreneurship; Ministry of Energy and Industry; Ministry of Foreign Affairs; Ministry of Transport and Infrastructure; Ministry of CultureWhen allocating the acquis between different line ministries, it is very important to takeinto consideration what different areas of EU law cover. Example: When allocating the EU acquis the Albanian law drafters should be very careful not to confuse the different areas of the EU law. For example, the EU acquis on immigration, visas, asylum should not be confused with EU legal acts dealing with free movement of persons. They have different scope, legal basis and apply largely to EU citizens only.Depending on different chapters, the Albanian law drafters should take into considerationprimarily the basic act in that particular area and afterwards all the connected technicaland detailed acts. Example: Within the Common Agricultural Policy, which is under the EU 12

competence and covered only by Regulations, there is one basic Regulation - Regulation (EU) No.1306/2013 on the financing, management and monitoring of the common agricultural policy, which gives the basis for the European Agricultural Fund for Rural Development. The issues connected with the rural development are afterwards regulated in the Regulation (EU) No.1305/2013 on support for rural development by the European Agricultural Fund for Rural Development. Moreover, the transitional provisions provided within Regulation (EU) No.1310/2013 laying down certain transitional provisions on support for rural development by the European Agricultural Fund for Rural Development shall be taken into consideration.Furthermore, when planning the approximation process, it has to be made clear whichpieces of EU legislation needs to be transposed in the Albanian national legislation andwhich pieces only refer to the EU Member States and therefore, need to wait until themoment when Albania becomes an EU Member State. Example: Regulation (EU) No.1219/2012 on establishing transitional arrangements for bilateral investment agreements between Member States and third countries at this point of time is irrelevant to Albania, since Albania itself is a third country and not a Member State of the European Union. The Albanian law drafters should identify the EU legislation that only refers to the Member States and exclude it from the planning process.Additionally, the Albanian law drafters need to pay attention to the constant changes ofthe EU legislation and the ongoing reforms that might cause certain changes in thelegislation in the future. Example: Due to the reforms in the Common Fisheries Policy, and the establishment of the new fund for the EU's maritime and fisheries policies for the period 2014-2020: the European maritime and fisheries fund (EMFF), numerous Regulations in this area are or will be repealed in the future. 13

One example is the Commission Regulation (EC) No.2065/2001 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 as regards informing consumers about fishery and aquaculture products will be repealed as of 31 December 2014. Therefore, there is no need for the Albanian law drafters to approximate with this Regulation.When the Albanian law drafters start the process of approximation with certain piece ofEU legislation, they need to take into consideration the text of the act and all the relatedones. It can happen in many occasions to have one national law that will include morethan one EU secondary legal act which are interconnected. Moreover, the implementingmeasures should also be considered when needed. Example: The Directive 2006/112/EC on the common system of value added tax contains rules on VAT which, until this moment in some cases, were subject to interpretation by the EU Member States. Both amendments to Directive 2006/112/EC and implementing measures should be checked. For example, the Council Implementing Regulation (EU) No 282/2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax should be considered in order to apply VAT system correctly before accession. Otherwise the application of the VAT tax will not be fully in line with EU legal requirements.And finally, the last question that needs to be considered when planning theapproximation process is when certain pieces of EU law should be transposed in theAlbanian legislation. The process of transposition of EU legislation into the Albaniannational legislation is highly dependent on the resources and institutional capacitiesavailable for its implementation and enforcement afterwards. Example: The most recent experience of the Croatian accession in the EU shows that like with the previous accession rounds, the candidate countries get several long transitional periods. One of the areas where the countries got the transitional periods is the environmental law area. Some of the transitional arrangements will remain for even 10 years after the accession. Taking into account the complexity and the 14

economic impact the transposition of EU acquis may have in this area; this fact is not so surprising after all. The transitional periods for Croatia include EU environmental horizontal legislation, as well as EU acquis on air quality, waste management, water quality, integrated pollution prevention and control and chemicals.3.1. The Inter-institutional Working Group for European IntegrationIn order to improve the management of coordination of the EU integration process, thePrime Minister issued two orders at the beginning of 2014 – one on the composition andfunctioning of the Inter-institutional Working Groups for European Integration and theother on the preparation and revision of the National Plan for European Integration2014-2020.The Order No.107 of 28.02.2014 “On setting up, composition and functioning of theInter-institutional Working Groups for European Integration” reorganized the alreadyestablished Inter-institutional Working Groups (IWGs) set up for each acquis chapter.This Working Groups have redefined competencies, which include preparation andupdate of the National Plan for European Integration. The scope of the Inter-institutional Working Groups:  Ensure the inter-institutional cooperation and communication at technical level aimed at implementing the commitments under the policy documents related to EU Integration;  Oversee the implementation of the Stabilisation and Association Agreement (SAA);  Assist in the preparation of SAA Committee and Subcommittee meetings and ensure follow-up and implementation of the recommendations provided in these meetings;  Together with the Ministry of European Integration co- ordinate annual revisions of the National Plan for European Integration 2014-2020 in respective chapters as well as ensure consistency of the National Plan with the Annual Legislative Plan of the Government and National Strategy for Development and Integration (2014- 2020) and other national/sectorial strategies;  Co-ordinate and oversee the law approximation process, including compliance with deadliness set forth in the National Plan for European Integration 2014-2020;  Co-ordinate and ensure timely updates to allocation of EU acquis between line ministries and other relevant authorities and 15

serve as a forum for settlement of inter-ministerial disputes on the allocation of acquis;  Regularly monitor developments in EU law, including proposals for new legislation, newly adopted legislation as well as relevant case-law of the Court of Justice of the European Union;  Regularly inform relevant personnel in the line ministries, expert services of the parliament as well as other relevant authorities about recent changes to EU acquis;  Periodically analyse the institutional capacities in the relevant fields and make recommendations;  Set priorities and monitor the implementation plan for translation of EU acquis;  Identify strategic priorities and needs related to the EU integration process to formulate proposals for assistance from the EU and other donors in close cooperation with the Ministry of European Integration and responsible department within the Council of Ministers;  Develop and submit recommendations to Inter-institutional Coordination Committee for European Integration.Each group is chaired by the deputy Minister of the lead Ministry for the relevant chapterand coordinated by the Director of the EU Integration Unit of that Ministry. The Inter-Institutional Working Groups for European Integration consist of representatives of thePrime Minister’s office, line ministries, their subordinate institutions and publicinstitutions as per the EU acquis field. Irrespective of the EU acquis chapter,representatives of the Ministry of European Integration and the Ministry of Finance areparticipating in the meetings of all IWGs.The Order No.107 provides that the Inter-Institutional Working Groups for EuropeanIntegration hold regular monthly meetings to take stock of developments and decide onthe course of action. The Working Groups can also meet on ad hoc basis if there is aneed for it.The Secretariat of IWG is composed of members of the lead institution for each chapterof the acquis. The IWG Secretariat’s responsibilities include technical assistance andinformational flow within the IWG.3. 2. National Plan for European IntegrationThe Order No 108 of 28.02.2014 “On drafting and revision of the National Plan forEuropean Integration 2014-2020” gives the legal basis for the preparation of the NationalPlan for European Integration (NPEI). The preparation of the Plan was launched by the 16

Inter-ministerial Committee for European Integration (KNIE) on its meeting on 3 March2014. On 6 March, the Minister of European Integration summoned the Inter-institutional Coordination Committee for European Integration (KKNIE) to providedetailed instructions on the drafting and timetable of the NPEI.Albanian Government has adopted its National Plan for European Integration 2014-2020in July 2014. The Plan is a basis for planning of the Albania’s EU Integration process.Moreover, the Plan will serve as an instrument of enabling and ensuring the coordinationof all Governmental activities in the accession process but also as a tool for monitoringthe progress. It was updated twice, in 2015 and in 2016.The preparation of the National Plan for European Integration 2014-2020 and its annualupdates is coordinated by the Ministry of European Integration in co-operation withInter-institutional Working Groups for European Integration. It is the Minister ofEuropean Integration that provides guidance and methodology for preparation andannual updates of the National Plan for European Integration.The National Plan for European Integration replaced the National Plan for theimplementation of SAA. The NPEI is much broader in its scope than the SAAImplementation Plan as it is taking into account the entire acquis and all reforms in orderto fulfil the accession criteria. The Plan is an excellent groundwork for the screeningphase and will be the main tool used once the negotiations start.The National Plan for European Integration defines strategic objectives and developmentneeds, as well as the policies, reforms and measures needed to realise those objectives.The National Plan should serve as a starting point for planning the future budget as wellas identifying the gaps that can be filled by the IPA and additional foreign funding.The National Plan is the basis for monitoring the fulfilment of tasks in terms of theirtimeframe and content. Since it contains the data for all published legal acts, linked withthe corresponding acquis data base, the National Plan for European Integration gives thepossibility to see the level of implementation by the responsible bodies at any time. The preparation of the National Plan for European Integration goes beyond just a pure technical law approximation exercise. Several important aspects of the Plan should be taken into consideration:  The NPEI defines the country’s national priorities through developmental and strategic objectives;  The NPEI formulates policies, reforms and measures needed for the implementation of these objectives;  It gives a comprehensive plan of the law approximation; 17

 The NPEI helps in indentifying the needs for the capacity building of the institutions involved and  With a comprehensive National Plan it is easier to determine the need of additional donor fundingThe priorities specified in the National Plan have been defined on the basis of a numberof sources and those sources shall be used when updating the plan, including theAlbanian Annual Legislative Plan of the Government, the SAA, the SAA ImplementationPlan, the European Partnership, the assessments of Albania’s progress contained in theEuropean Commission’s Report. The five priorities for opening of accession negotiations are:  to continue to implement public administration reform with a view to enhancing professionalism and depolitisation of public administration;  to take further action to reinforce the independence, efficiency and accountability of judicial institutions;  to make further determined efforts in the fight against corruption, including towards establishing a solid track record of proactive investigations, prosecutions and convictions;  to make further determined efforts in the fight against organised crime, including towards establishing a solid track record of proactive investigations, prosecutions and convictions;  to take effective measures to reinforce the protection of human rights, including of Roma, and anti-discrimination policies, as well as implement property rights.Additionally, Albania needs to bring its institutions, management capacity andadministrative and judicial systems up to EU standards. This will contribute towardsimplementing the EU legislation effectively in good time before accession. A veryimportant part of the approximation process that will be closely monitored by theEuropean Commission is the actual implementation of the enacted legislation. Specialemphasis is put on the administrative structures for the implementation of the legislation, 18

namely establishing new or reforming existing institutions and ensuring an adequatenumber of trained employees.3. 3. The Structure of the National Plan for European IntegrationThe National Plan for European Integration is consisted of three main parts: i)introduction and management of the European integration process, ii) political andeconomic criteria and iii) plan for approximation with EU acquis 2014-2016.The third part, which refers to the short term and medium term planning of theapproximation process is the most technical, but in the same time the mostcomprehensive and important part of the plan. It is consisted of 33 sub-chapters thatreflect every chapter of the accession negotiations under which Albania will be monitored.The sub-chapters are consisted of a short introductory part that is supposed to reflect thecontent of the chapter, the Albanian situation on that particular field and the list of subissues in the cases of complicated chapters. Afterwards, the second part, which presentsan overview of the current situation follows. It is supposed to give the summary of theSAA requirement and EU acquis, the main legislative achievements and the mainresponsible institutions for that particular chapter. The second part also contains anindication of the financial allocations for that chapter, which is very important parameterthat determines the pace of the planning and the implementation of the Plan. The thirdpart is important and should be considered very carefully, since that is the part thatsummarizes the main priorities for the countries in the area. It is especially significantduring the planning process to emphasize both the short term and long term priorities fordifferent chapters.The most comprehensive part of every sub-chapter is the part referring to the actual planof action, both for short term planning – the year for which the Plan is updated, andmedium term planning – for the following two years. It is consisted primarily of two setsof tables that are supposed to measure the progress, that is to state what has beenaccomplished so far.As it can be seen from the photo beneath, the first table is supposed to reflect the existingpolicy framework in the area. It should present information on the existing strategies,action plans or policy papers, which is the lead institution that adopts and implementsthem and the reference period they address. Afterwards, the inventory of existing legalmeasures needs to be created. In that table, the starting point is the EU legislation. Theoverview of the Albanian legislation adopted, the leading institutions and the level ofapproximation is given according to the first part of the table. Since the Plan is used topresent progress, it has to reflect the level of the approximation with EU law. Therefore,it is irrelevant to put national legislation in the Plan that has nothing to do with theprocess of legal approximation with the EU. Finally, both the date of adoption and thedate of entry into force are important to give a clear picture of the progress made. Thesedates should be given in the following format – dd.mm.yyyy. 19

The second pair of tables refers to the planning process. The division between policy andlegal framework is once again evident and present. In this way, it is much easier for theAlbanian law drafters to differentiate the strategies, action plans and policy papers thatgive general policy guidelines from the legal measures which are used to transpose the EUlaw. Once again, in the table with the planned legal measures, the starting point is the EUlegislation. There is a clear distinction between the short term planning referring to theyear in which the update is done and the medium term planning that refers to thefollowing two years. What needs to be emphasized in this part is that since the process oftranslation of both the EU legislation in Albanian and Albanian legislation in English isessential for the continuation of the accession process and afterwards for thenegotiations, there is a separate part of the table that considers that particular information.The Plan can be used in the process of planning the pace of translation of the legislation.According to the Plan, the translation can concentrate on the pieces of legislation that willbe approximated faster than the others. 20

21

Chapter 2: Sources of EU Law and their Implementation Methods1. Primary LawEU primary law consists of: • treaties establishing European Communities and the European Union (now: Treaty on the European Union, Treaty on the functioning of the EU and Treaty establishing the European Atomic Energy Community); • treaties revising these treaties (Single European Act, Maastricht Treaty, Amsterdam Treaty, Lisbon Treaty); • accession treaties; • Charter of Fundamental Rights; • some other treaties concluded by member states (e.g. budgetary treaties, Greenland Treaty); • protocols and annexes to all of the above.All other acts of EU law have to conform with the treaties. The legal status andimportance of these acts make them equivalent to constitutional law in national legalorders.Treaty provisions imposing obligations and according rights to individuals (privatepersons, enterprises, social partners, etc.) and some general principles of the EU lawshould be taken into account when harmonizing the national law of a pre-accessioncountry with European law. For example, the principle of non-discrimination on the basisof gender should be implemented well before accession to the EU, but implementation ofthe principle of non-discrimination on the basis of nationality is not obligatory beforeaccession. In some exceptional cases the Stabilization and Association Agreement clearlyextends EU treaty provisions to Albania (e.g. Art. 71 on competition and State aid rules) After accession to the EU Some treaty provisions imposing clear obligations or granting clear rights to individuals may have a direct effect. This means that national courts and the public administration are obliged to apply them even if they have not been transposed into national law. Examples Article 110 TFEU (ex Article 90 TEC) No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. 22

Article 45 TFEU (ex Article 39 TEC) 1. Freedom of movement for workers shall be secured within the Union. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Article 18 (ex Article 12 TEC) Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.2. The General Principles of European Union LawGeneral principles of EU law have their roots in both national legal orders of the memberstates and in European Union law. Some general principles are provided for in the treatiesthemselves (e.g. the principle of proportionality and the principle of non-discriminationon the basis of nationality), some others result from the jurisprudence of the Court ofJustice of the EU (e.g. the principle of liability of a member state for infringement of EUlaw and the principle of non-discrimination on the basis of age). The concept of generalprinciples of EU law is not very clear and leads to diverging opinions in academic circleshowever, and it is next to impossible to make an exhaustive list of them.Some general principles of EU law may be implemented by an acceding country on avoluntary basis before accession to the EU (e.g. the principle of non-discrimination onthe basis of age). But the nature of some other general principles makes them impossibleto apply at the pre-accession stage (the principle of liability of a member state forinfringement of EU law and the principle of priority of the EU law).The manual will deal with the two fundamental principles of EU law – the principle ofsupremacy and the direct effect principle. These two principles are only applicable to theEU Member States. The EU law does not have direct effect and does not have primacyover the national law of the candidate countries. However, these principles should betaken into consideration since they will be applicable to Albania once becoming an EUMember State. Moreover, Albanian law drafters should be familiar with these principles inorder to have better understanding of the language used in the EU Regulations andDirectives, and in the case law of the Court of Justice. • The Principle of SupremacyAccording to the case law of the ECJ, the supremacy of the EU law is a cornerstoneprinciple of the EU law. The principle of supremacy means that EU law takes precedenceover domestic law of the Member States. This principle is supposed to guide the MemberStates in case of conflicts between their national legislation and EU legislation. There isno provision within the Treaties that deals explicitly with supremacy. Declaration No 17annexed to the Founding Treaties refers to the existence of the supremacy principle in thecase law of the European Court of Justice and is thus reaffirming its importance. 23

The principle supremacy is not inscribed in the Treaties, but has been enshrined by theCourt of Justice in Costa v. Enel case. The Court held that the legislation adopted byEuropean institutions should be integrated into the legal systems of the Member Statesand they are obliged to comply with them. Therefore, the European law has precedenceover national laws. With the fact that the EU legislation is superior to national law, theprinciple of supremacy ensures that citizens are uniformly protected by a European lawassured across all EU territories.Additionally, the principle of supremacy applies to all EU acts that have a binding force.Therefore, Member States may not apply a national rule which contradicts to Europeanlaw. This principle guarantees the superiority of European law over national laws. Bothprimary and secondary EU legislation has precedence over the national laws. As for thedirect effect principle, the Court of Justice is responsible for ensuring the precedenceprinciple is respected.The absolute supremacy of EU law is needed to guarantee a coherent legal standardwithin the European Union. When a piece of EU law is adopted, the rules must beenforced in national courts, even where this involves intervening in the rules produced bydomestic law-making institutions.The creation of a new legal order of EU law and its supremacy means that EU institutionsmay create rules affecting the legal order of the Member States. According to the Court ofJustice, the supremacy of the EU law is absolute and extends to all domestic legislation,including the constitutions of the Member States. • Direct Effect of EU lawOne of the fundamental principles of the European Union law alongside with theprinciple of supremacy, is the direct effect of European law. The direct effect principleensures the application and the effectiveness of the European Union law in the MemberStates. The direct effect principle enables individuals to immediately invoke EuropeanUnion law before the national courts. This can be done independent of whether thenational law exists. As in the case of the principle of supremacy, this principle wasenshrined by the Court of Justice in the Van Gend en Loos judgment by recognizing thatthe European law not only produces obligations for Member States, but also gives rightsto individuals. The Court defined several conditions for the legal act adopted by the EUinstitutions to be immediately applicable. Moreover, the direct effect may only refer torelations between an individual and a Member State or to relations between individuals. Inthis respect, there are two aspects to the direct effect: vertical and horizontal. Therelations between individuals and the Member States are affected by the vertical directeffect, which means that the individual can invoke a provision of the EU law in relationto the State. Furthermore, when it comes to the relations between individuals in aMember State, they are affected by the horizontal direct effect. Accordingly, oneindividual can invoke a provision of EU law in relation to another individual. 24

When it comes to the EU primary legislation, the principle of the direct effect as definedin the Van Gend en Loos judgment, laid down the condition that the obligations must beprecise, clear, unconditional and that they do not call for additional measures. Inthe cases of the acts from secondary legislation, the application of direct effect dependson the type of act. While regulations always have direct effect, since they are directlyapplicable in the Member States; the Court of Justice recognizes in some cases the directeffect of directives in order to protect the rights of individuals. When the directive’sprovisions are unconditional and sufficiently clear and precise, it can have direct effect.However, it can only have direct vertical effect and it is only valid if the Member Stateshave not transposed the directive by the deadline. Decisions can have direct effect whenthey refer to a Member State as the addressee and the Court of Justice recognizes only adirect vertical effect. Opinions and recommendations do not have legal binding force andconsequently they are not provided with direct effect.3. International AgreementsThe European Union and Euratom are parties to a number of international agreements.Depending on the topics covered, they are concluded by the European Union solely ortogether with the member states on the one side and a third party on the other. Thoseagreements are part of the EU acquis and are binding on both the member states as wellas the European Union. As a rule, a pre-accession state is not requested to harmonize itslaw with the agreements concluded by the EU and its member states with third countriesand other international organizations. On the other hand, a pre-accession state is expectedto join some international conventions, which is considered as one of the accessionconditions. After accession to the EU A member state: • is obliged to adjust its legislation to agreements concluded by the EU itself with third countries and international organizations (e.g. trade agreements) • accedes automatically to agreements concluded by the EU member states among themselves (e.g. conventions on elimination of double taxations) • is obliged to accede to “mixed agreements” concluded jointly by the EU and its member states with third countries and international organizations (e.g. association agreements, partnership and cooperation agreements, data protection agreements) and adjust its legislation accordingly • must accede to certain international agreements concluded by the EU member states directly related to EU 25

competences and goals (e.g. some agreements concerning fisheries) • is obliged to adjust international agreements concluded before accession to the obligations resulting from EU law, which means in some cases (e.g. free trade agreements) an obligation to withdraw from certain agreements (reasonable transition periods will be foreseen). Provisions of EU international agreements may, under certain conditions specified by the CJEU, produce a direct effect on the legal systems of the member states.34. Secondary LawThe categories of secondary legislation are listed in Article 288 TFEU (regulations,directives, decisions) and Article 25 TEU (CFSP decisions). Directives, regulations anddecisions are adapted by the EU Council, the European Parliament and the EuropeanCommission (and, more rarely, by the European Central Bank and European Council) indifferent procedures provided for in the treaties. They can only be adopted within thescope of competence of the EU institutions conferred on them by the member states. Forthe purpose of harmonization and transposition, a legislative, delegated or implementingdirective, regulation or decision adopted in any procedure has the same legalcharacteristics and effects.Secondary legislation in the Area of Freedom, Security and Justice should be alsomentioned. Prior to the entry into force of the Treaty of Lisbon we had a separatecatalogue of secondary legislation (former Article 34 TEU for the Police and JudicialCooperation in Criminal Matters – commonly known as the “Third Pillar of the EU”).This is no longer the case as the Treaty of Lisbon extended the catalogue of sources ofsecondary legislation to this area; however, the pre-Lisbon legislation remains in force aslong as it is not amended, repealed or replaced by new instruments. Thus some of thepre-Lisbon decisions, framework decisions and conventions remain in force. • RegulationsRegulations unify the law of all member states. They apply directly and in full andproduce a direct effect on their national legal systems. From the date of their publicationin the EU Official Journal they can serve as a basis for individual claims, both against themember states as well as individuals.4 Thus they replace – or should replace - nationalprovisions having the same scope of application, if there were any. A member state isdeprived of the competence to legislate in the area covered by a regulation, unless theregulation provides for, in rare cases, a clear implementation obligation.3 Case C-265/03 Igor Simutenkov v. Ministerio de Educación y Cultura, ECR [2005] I-2579.4 Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v FrumarLtd and Redbridge ProduceMarketing Ltd, ECR [2002] I-7289. 26

As the regulations apply directly only to the territories of the member states, a pre-accession country should harmonize its law with selected relevant regulations as if theywere directives. As regulations are written in a way suitable for direct application, theirprovisions may in most cases be copied into the national laws of a pre-accession state(with due respect to national legal concepts and circumstances). Regulations do notindicate national institutions responsible for their applications, so a pre-accession state (aswell as member states) needs to indicate relevant national authorities and establishrespective procedures if necessary. After accession to the EU The member states must not transpose or copy regulations into national law. Thus, domestic laws of an acceding state transposing EU regulations into national law shall be repealed by the day of accession. A special database with all provisions of that kind could be very useful during the last phase of legislative preparations before EU accession. The direct applicability of regulations in the legal systems of the member states means that their courts and public administration are bound directly by the regulations’ provisions and have to apply them as they would apply national laws. The member states are obliged to adopt domestic legislation to facilitate the direct application of EU regulations and enforce them properly, i.e.: • indicate domestic institutions empowered to apply a regulation and establish necessary procedures; • introduce necessary sanctions; • eliminate from their domestic laws provisions and practices contrary to the regulations; • eliminate from their domestic laws provisions having the same scope of application as the regulations do. • DirectivesDirectives harmonize the law of the member states but do not replace domestic laws. Adirective is binding on the member states as regards the objective to be achieved but it isfor them to decide on how this objective is to be transposed into their legal systems. Theroom for manoeuvre of the member states depends on how detailed the provisions of adirective are and what method of harmonization does certain provision of the directiveprovides for.There are so-called framework directives (e.g. Directive 2009/28/EC on the promotion of theuse of energy from renewable sources), but most directives harmonize the law of the memberstates in a quite technical way (e.g. Directive 2009/81/EC of the European Parliament and of the 27

Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts,supply contracts and service contracts by contracting authorities or entities in the fields of defence andsecurity).Some directives and/or their provisions that provide for so called “minimumharmonization” lay down a set of minimum common rules which must be implemented,but allow the national legislator to introduce higher standards or other measures toachieve intended objectives provided that they are compatible with the directive and,generally, EU law. The result of minimum harmonisation is that divergences betweennational laws continue to exist. Example Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees Article 1 1. The purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market. Article 8 2. Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.In the case of “maximum/complete/total harmonization” the domestic legislation shouldaccurately reflect the directive provisions. Member states may only derogate from theprovisions of a complete harmonisation directive if the directive expressively permits. Example Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (2) This Directive should therefore lay down standard rules for the common aspects of distance and off-premises contracts, moving away from the minimum harmonisation approach in the former Directives whilst allowing Member States to maintain or adopt national rules in relation to certain aspects. (7) Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders (...) The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be 28

eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union. Article 4 Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.In many cases directives contain facultative provisions or list of measures from which anational legislator shall select one or more. Example Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community Article 10 3. (...) At least 50 % of the revenues generated from the auctioning of allowances (...) should be used for one or more of the following: (a) to reduce greenhouse gas emissions (…) (b) to develop renewable energies (…) (c) measures to avoid deforestation and increase afforestation and reforestation in developing countries (…) (d) forestry sequestration in the Community; (e) the environmentally safe capture and geological storage of CO2 (…) (f) to encourage a shift to low-emission and public forms of transport; (g) to finance research and development in energy efficiency and clean technologies in the sectors covered by this Directive; (h) measures intended to increase energy efficiency and insulation (…); (i) to cover administrative expenses of the management of the Community scheme.If the harmonization of national laws laid down in a said EU directive is not efficient andintended goals cannot be achieved, the European Commission frequently proposes toreplace the a minimum harmonization directive with total harmonization directive orrather with directly binding regulation. 29

General principles of directives implementation: • Directives are to be transposed into legally binding domestic measures (not into soft law or administrative practices only – the legal certainty principle), in one or several domestic legal acts. The choice of domestic measure implementing a directive depends on the system of legal sources in each state. In case of frequently revised directives (especially implementing or delegated directives), the delegated legislation is widely used in EU member states and should be taken into consideration. • Directives’ provisions should be transposed with due respect to domestic legal concepts and traditions (the “copy-paste” method is to be avoided unless the directive is very technical), but terms and definitions having an autonomous and unified meaning in EU law should be implemented precisely. • Directives are to be transposed before a date provided for in each directive. An average transposition period is 1-2 years.5 • Directives are addressed to the member states. As a rule they do not impose obligations or confer rights on individuals. • All national authorities (central, regional and local) are obliged to implement directives efficiently.Pre-accession countries obliged to bring certain areas of national legislation in line withEU law (as Albania is under article 70 SAA) generally transpose directives in the same wayas the EU member states do. Example In accordance with Article 76 SAA Albania is obliged to “ensure (…) the harmonization of legislation of consumer protection in Albania on that in force in the Community”. This obligation includes the transposition of all EU consumer protection directives into Albanian law. The same applies to the protection of personal data (article 77 SAA). After accession to the EU • Member States shall abstain, even before the end of the transposition period, from any measures which could hinder achieving the objectives of the directive.5 In the case 102/79 Commission v. Belgium (ECR [1980] 1473), the Court of Justice held that a mereadministrative practice will not suffice. In a subsequent judgment in case 239/85 Commission v. Belgium(ECR [1985] 3645), the ECJ confirmed that transposition by a circular will constitute a breach of Article288 TFEU. In the case C-144/99 Commission v. The Netherlands (ECR [2001] I-3541), the Court ofJustice held that it will not be sufficient for the purposes of effective transposition if the aims of adirective are achieved by reduction of disparities between a national law and a directive by the courts’interpretation. 30

• The lack of timely transposition as well as incomplete transposition constitutes a breach of EU law. This may lead to an infraction case based alternatively on Articles 258, 259, 260 TFEU and the imposition of a financial penalty. • If a member state has not transposed a directive on time or not transposed it correctly, some of its provisions might have a direct effect under the jurisdiction of this member state and may allow individual claims. • As for all other provisions of the EU law, directives’ provisions having a direct effect have priority of application over conflicting national law. • Domestic legal acts must indicate directives they are implementing together with their publication data (special footnote to the title6) • The full transposition of each directive should be notified to the European Commission via a special electronic database. • DecisionsMost decisions of the EU institutions are of individual applicability. They are directlybinding on those to whom they are addressed (i.e. particular member states andindividuals). Decisions are widely used in the competition and state aid area7 and in EUbudget management. By this measure the EU institutions can require a member state oran individual to perform or refrain from an action, or can confer rights or imposeobligations on them. The member states are only obliged to enforce them in theirdomestic legal systems. In some rare cases decisions need to be transposed in a waysimilar to the transposition of directives.Numerous decisions not specifying any addressee are of EU internal application(nominations, rules of procedure of EU organs, procedural decisions, etc.). After accession to the EU Not enforcing (or in some cases not implementing) a decision may lead to an infringement case based alternatively on Articles 258, 259, 260 TFEU and imposition of a financial penalty. It may also lead to individual claims.6 For example: “This law transposes (into the domestic legal system / into the national legal order) Council Directive91/308/EC of 10 June 1991 on (…), published in the Official Journal of the European Communities no. L 108 ofApril 24, 2002.”.7 Fines for a breach of Articles 101 or 102 TFEU are imposed by the decisions of the EuropeanCommission addressed to particular undertakings. Another example are decisions of the EuropeanCommission requesting the recovery of state aid which had been granted contrary to Article 107 TFEU. 31

• Soft lawSoft law instruments are non-binding measures, but they may influence interpretation ofEU law and shall be taken due account of when implementing EU legislation. EUinstitutions (mainly the European Commission and the Council) adapt various types ofsoft law measures, among them recommendations, opinions, communications, guidelines, frameworksand codes of conduct. Some recommendations and guidelines are designed to distribute andpromote EU member states best practices on EU law implementation.ExamplesGuidelines on the implementation of the birds and habitats directives in estuariesand coastal zones with particular attention to port development and dredging,European Commission, January 2011Commission Recommendation of 12 July 2004 on the transposition into nationallaw of Directives affecting the internal market (2005/309/EC)The Court of Justice held that some kind of recommendations cannot be ignored bydomestic institutions interpreting EU law.8 European Commission soft law actsinterpreting competition and state aid law are of special importance.8 Case C-322/88 Grimaldi (ECR [1989] 4407). 32

• Judgments of the Court of Justice of the European UnionThe judgments of the Court of Justice of the European Union (which includes the Courtof Justice, the General Court and the specialized courts) do not have the status ofprecedence in the meaning of the common law. However, they play an extremelyimportant role in the implementation and everyday application of EU law. Manyimportant principles of EU law such as supremacy, direct effect or state liability havebeen developed in case law. Some judgments of the Court significantly develop EU lawprovisions, while others clarify the way they should be implemented.The legal status of principles laid down in well established jurisprudence of the CJEU ismore reminiscent of EU primary law than secondary law. Taking the jurisprudence of theCJEU into account is an obligation of national legislators drafting legal acts implementingEU law. After accession to the EU • The CJEU is the institution with the ultimate authority to interpret EU law • Ignoring CJEU judgments may result in an infringement procedure of the European Commission against the member stateAll CJEU judgments are accessible on the CJEU webpage:http://curia.europa.eu/juris/recherche.jsf?language=en5. EU Approximation Tools and TechniquesDrafting legal acts approximating domestic law to EU law doesn’t differ significantly fromordinary legislative drafting. There are, however, some characteristics, requirements andtools a national legislator should bear in mind or apply when preparing draft actsimplementing EU law or bringing domestic law in line with it. • Explanatory memorandum/report to a draft lawAn explanatory memorandum, beside other ratio legis, should clearly state approximationobligations (for example resulting from SAA) and indicate EU legal acts implemented ortaken into account.One might also consider including information on provisions or groups of provisions thatshould be repealed by the date of accession of the country to the EU. This might beindicated in the concordance table as well. 33

• Concordance tablesThe concordance table is a measure, widely applied in EU member states, helping totranspose EU law completely and correctly; they also facilitate scrutiny ofimplementation, planning and reporting. From the beginning of accession negotiationsthe European Commission will request detailed concordance tables for all directives (inEnglish). One specified model of concordance tables should be used by all ministries andits attachment to each draft law implementing EU law should be compulsory.A legal drafter responsible for the draft legal act shall fill in the concordance tablegradually from the very beginning of the legislative works. There should be one separateconcordance table for each directive and – in the pre-accession period – for each EUregulation if its transposition is needed. As an EU legal act can be implemented in manydomestic acts, a concordance table annexed to a draft law should indicate all of them(both those already adopted or planned). After adoption of all implementing acts theresponsible line ministry should prepare one final version of the concordance table (bothin Albanian and in English) that should be stored by a designated authority for planningfuture legislative works and for reporting purposes. Updated concordance tables are thebasic tool showing the level of compliance of domestic legislation with EU law.The correct use of this measure greatly simplifies transposition and enhances thepossibility of assessing gaps between Albanian and EU law. The concordance tables shalli.a. clearly indicate EU law provisions, implementation of which is postponed till the dayof accession or till any later date. Thus the concordance tables allow early identification ofaccession negotiation problems and simplify the preparation of negotiation papers as well.The concordance tables also help identifying gold-plating (e.g. higher standards, moreobligations to businesses/citizens) when implementing EU law and taking – at thepolitical level – decisions whether it is justified or not. Thus the concordance table shallalso indicate provisions of the draft that are not required by EU law and are proposed fordomestic reasons. This is of special importance for draft laws combining provisionsimplementing EU law with provisions implementing purely domestic policies.The concordance tables shall be presented to the parliament together with all the draftlaw implementing EU law. They help the parliamentary services and the members of theparliament to identify the limits of parliamentary amendments in bills implementing EUlaw a fulfilling pre-accession obligations of Albania. After accession to the EU Preparing the concordance tables for some directives and submitting them to the European Commission will be required by EU law and obligatory for all EU member states. This will be clearly provided for in the preamble or in the final provisions of the relevant directive. 34

Example Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ L 009, 14.1.2009, p.12) “Article 48 1. Member States shall adopt and publish, not later than 1 January 2010, the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 April 2010. They shall forthwith communicate to the Commission the text of such laws, regulations and administrative provisions together with a table showing the correlation between them and this Directive.” Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes “(53) In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.”Another issue that is equally important is the translation of the EU acquis in Albanian andthe translation of the Albanian legislation in English. The translation of the EU acquis ismaking the approximation process easier and it helps in creating the appropriateterminology. The translation of the Albanian legislation in English on the other hand isimportant because of the need for the European Commission to evaluate the progressbased on the adopted policy and legal acts that can read. Table of concordance should bedone both in English and in Albanian, which will accelerate the translation process.The specimen of the Table of concordance below shows all the details that the tableneeds to contain. 35

• Regulatory impact assessment (RIA)The drafting of acts implementing EU law should be preceded by a thorough impactassessment. RIA is not required by the EU law or any pre-accession obligations, butshould be carried out also for EU approximation law for the sake of national interest, as itis practiced in the case of purely domestic legislation.In the context of EU law, RIA is the basis for selecting the best option for EU lawtransposition. The simplest RIA should identify impacts of draft regulation by issue type: • Economic (e.g. small businesses, competition) • Financial (public expenditure at central, regional and local levels) • Social (e.g. human rights, access to professions or services, equality) • EnvironmentalRIA shall indicate estimated costs and benefits of the implementation of a legal act formain groups falling within the scope of its application as well as public finance costs and 36

administrative burden. Thus RIA also enables the identification of economic/financial,social or other problems justifying conscious delays in approximation or a long phase-inperiod of harmonization (approximation in stages). On the basis of RIA a candidatecountry might consider requesting transition periods during the accession negotiations.RIA can be carried out by many different methods depending on the sector to beregulated and on the draft legal act, but the RIA related methodological questions fall outof the scope of these guidelines. In many cases preparation of a complex RIA requiresspecific, even scientific expertise. • Opinions on complianceThe opinion on compliance of all draft laws and bylaws with EU law issued by theMinistry for European Integration is an obligatory component of the legislative procedure(Decision No. 584 of 28 August 2003 “On the Approval of the rules of the Council ofMinisters). The draft legal act shall be submitted to MEI legal department together withthe table of compliance, explanatory memorandum and other preparatory acts. In case ofmajor amendments to the draft at the later stages of the legislative process, it should beresubmitted to MEI for an updated opinion. The same should apply at the parliamentarystage in case of any doubts on conformity of deputies’ amendments with EU law.Main value added of MEI opinion is twofold. Firstly, even if the responsible line ministryis familiar with relevant chapters of EU law, the legal analysis carried out by MEI takesalso info account other areas of EU law, its general principles and horizontal rules and thecase law of the Court of Justice of the EU that might be relevant for the draft legal act.Secondly, an independent opinion on compliance allows taking decisions on keeping inforce or introducing provisions that are not in conformity with EU law. Decisions of thiskind might be in some cases necessary for economic, social or political reasons but shallbe always taken consciously and at the high political level. • Gold - plating and overregulation Example Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC “Clause 8: Final provisions 1. Member States may apply or introduce more favourable provisions than those set out in this agreement.” Directive 2010/41/EU of the European Parliament and of the 37

Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self- employed capacity and repealing Council Directive 86/613/EEC “(23) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions.” • Approximation of law in phasesTo facilitate the smooth introduction of new obligations arising from EU law,approximated domestic legislation can enter into force in phases before the date ofaccession, by the date of accession or even afterwards, if agreed during the accessionnegotiations. This is of special importance in areas where new costly obligations forenterprises and citizens are introduced (environmental law, food safety law, consumerprotection), or where businesses of an acceding state might not able to compete with EUenterprises (e.g. the step by step liberalization of the transport, energy andtelecommunication sectors). In some cases even transition periods of many years mightbe agreed. • Importance of EU acts preambles, explanatory memorandums and relevant soft lawBefore and during legal drafting national legislator should familiarize with the documentsaccompanying EU legal act and facilitating its implementation. Among them theemphasize shall be put on preambles, explanatory memorandums and onrecommendations from the EU institutions on their implementation.In EU law, the “Preamble” means everything between the title and the enacting terms ofthe act, namely the citations, the recitals and the solemn forms which precede and followthem. For transposition purposes, a national legislator should concentrate on recitalsstating the reasons for the act (the statement of reasons begins with the word“Whereas:”). They don’t contain normative provisions, but state the relevant points offact and of law justifying the adoption of measures set out in the enacting terms.An analysis of the preambles simplifies the process of identifying the goals of EU legalacts and main measures of their achievement. EU acts’ preambles should first be takeninto account at the beginning of legislative drafting when the main goals and principles ofa domestic legal act are set.The order of recitals corresponds, as a rule, to that of the normative provisions of an act,and their purpose is to outline the reasons for the enacting terms. Particular care needs tobe taken with the recitals’ reasoning derogations, departures from the general scheme ofrules and exceptions to general principles.The explanatory memorandums are in most cases prepared by the European Commissionand attached to draft directives, regulations and decisions submitted to the EuropeanParliament and to the Council. The explanatory memorandums: 38

• indicate general purpose and detailed goals of the EU legal act; • indicate the legal basis and the competence of the Union for the adoption of the act; • describe reasons for legislative activity at the EU level in said area (problems that are to be solved and why they cannot be solved well enough by the Member States themselves – so called subsidiarity principle test); • summarize results of earlier EU laws, if there were any and experience of the Member States with their implementation; • summarize the process leading to the adoption of the draft legal act (European Commission white and green papers, its consultations with stakeholders and experts, etc.).The explanatory memorandums are always attached to the draft EU legal acts (COMdocuments) published in C series of the EU Official Journal. A national legislator shalltake into account that explanatory memorandums relate to drafts and not to final versionsof regulations, directives and decisions, that might be significantly amended during theEU legislative process.After the adoption of the EU legal acts the European Commission (in rare cases the otherEU institutions as well) frequently publishes soft law documents on their implementationby the Member States. It is especially common in the case of directives. This kind ofrecommendations, guidebooks end communications are aimed to facilitate properimplementation of EU directives. On the other hand the reports published by theEuropean Commission some years after the adoption of the directive describe the ways oftheir implementation in the Member States, relevant problems and solutions. Theyfrequently present benchmarks that might be taken into account by the Albanianauthorities when taking key decisions on the implementation of important directives. • Transposition of definitionsFor the sake of legal clarity and uniform application, EU legal acts frequently define thewords they use. That is necessary for example where a term has several meanings butmust be understood in only one of them or if, for the purposes of the act, the meaning isto be limited or extended with respect to the normal meaning given to that term. If themeaning of such terms is different in domestic law it is obligatory to transpose EU legaldefinitions exactly. From the other side, a national legislator should draft transpositionprovisions with due regard to national legal traditions, language and concepts. Takingboth above recommendations into account can be difficult and even impossible in somecases. • Different languages of EU law 39

The EU legislation is drafted in several languages and the different language versions areall equally authentic. An interpretation of a provision of EU law thus involves acomparison of the different language versions. This is of special importance if theinterpretation of one language version is not clear.If the comparative analysis is not helpful the relevant provision must be placed in itscontext and interpreted in the light of the whole legal act (and in the light of theprovisions of EU law as a whole as well) with due regard to its objectives defined in thepreamble. • SanctionsEfficient implementation of EU law requires that appropriate sanctions for breaking ofthe rules resulting from it are introduced. EU law harmonizes sanctions in exceptionalcases only. It is up to Albania to decide to a certain degree what kind of sanctions shouldbe introduced in each case. They must, however, be similar to the sanctions securingenforcement of domestic law applicable in comparable situations.According to EU law general rule on sanctions they must also be efficient, proportionateand deterring. Transposing EU law without sanctions or without efficient sanctionsbreaks one of the general principles of EU law – the principle of EU law efficiency. After accession to the EU An EU member state has to introduce in its domestic law sanctions for breaking of directly applicable EU law provisions, mainly the provisions of EU regulations (most other provisions ‘implementing’ EU regulations need to be repealed after accession). • Quotations and references to EU law actsReferences to EU law introduced into domestic law should precisely indicate the EU legalact referred or quoted. The title, number and publication data should be given in full. Example Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140, 5.6.2009, p. 16–62. Guidelines on national regional aid for 2007-2013 (2006/C 54/08), OJ C 54, 4.3.2006, p. 13. 40

6. Where and how to Search for EU Law?All EU legal acts are published in the Official Journal of the European Union (OfficialJournal of the European Communities before entry into force of the Lisbon Treaty). TheOfficial Journal is the official compendium of EU legislation (L series) and other officialdocuments of the EU institutions, bodies and agencies (C series and its supplements). It ispublished in all official languages of the EU. Since 1 July 2013 electronic editions of theOJ published on EUR-lex portal (http://new.eur-lex.europa.eu) have legal force.The EUR-lex portal offers both simple access to OJs and documents and advancedsearching possibilities. The simplest way to find a single EU legal act is searching by its“natural number” (consisting of year of adoption and individual act number). 41

The advanced searching possibilities can be found on:http://new.eur-lex.europa.eu/advanced-search-form.htmlThe table below shows several examples of the natural numbers of the EU secondarylegislation that can be used when doing the simple search on the EUR-lex portal. Examples (natural numbers in bold) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC Commission Decision of 25 April 2013 concerning the non-inclusion of formaldehyde for product-type 20 in Annex I, IA or IB to Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market (2013/204/EU) Regulation (EU) No 228/2013 of the European Parliament and of the Council of 13 March 2013 laying down specific measures for agriculture in the outermost regions of the Union and repealing Council Regulation (EC) No 247/2006When searching for acts of a certain EU law area (or all EU law governing a certain area)it is advisable to use the “Directory of European Union legislation in force” or the“Directory of European Union consolidated legislation” and browse by one of 20 mainareas of EU law:http://new.eur-lex.europa.eu/browse/directories/legislation.htmlhttp://new.eur-lex.europa.eu/browse/directories/consleg.htmlThe EUR-lex links EU legal acts and other documents related to each other. After havingfound an EU act, one may use the “linked documents” feature to find acts on which it isbased, acts amended or repealed, acts amending, implementing or mentioning the first actand the judgments of the Court of Justice of the EU related to it.EUR-lex also offers access to EU preparatory documents such as draft regulations anddraft directives, for example:http://new.eur-lex.europa.eu/collection/eu-law/pre-acts.htmlMore on EUR-lex portal:http://new.eur-lex.europa.eu/content/help/faq/intro.html#topAnother important source on the most recent developments in the EU law is the SMEIIII (Support to the European Union Integration Process in Albania) web page. The EULaw Weekly refers to the recent developments in EU law covering new legislation, caselaw of the Court of Justice of the European Union, together with the new proposals 42

presented by the European Commission. All issues of EU Law Weekly can be found onthe following link:http://smei3.mie.gov.al/en/pages/EU%20Law%20Weekly7. The Official Journal of the European UnionThe EU legislation as it was originally adopted is afterwards published in the OfficialJournal. It should be emphasized that the Official Journal does not consolidateamendments to the original legislation. It is published in all of the official EU languagesand it has several sub-series, of which the most important are L, C and S.  Official Journal L (Legislation) contains the text of adopted legislation and details of international agreements, conventions etc. entering into force. Within the L series there are two sections: Acts whose publication is obligatory (includes Regulations) and Acts whose publication is not obligatory (includes Directives).  Official Journal C (Information & Notices) contains brief details of the Court of Justice and General Court actions and judgments; draft legislation; notices from the European Commission and European Parliament minutes. It does not contain opinions of the Advocates-General.  Official Journal S (Supplement) contains invitations to tender for public contracts.The Official Journal is published daily. Each issue is numbered and each series has itsown numbering sequence which starts anew each year. In order to find a particular pieceof information, the year, the series and the issue number is needed. After 1st July 2013,the electronic editions of the Official Journal have legal value. The paper version only haslegal value if the electronic version cannot be published. 43

44

Chapter 3: Choice of the Right Legal Instruments of Approximation with EULegislationThere are no strict rules in the EU or in the Albanian legal system that indicate therelevant type of legal instrument to be used for the approximation of EU legal acts duringthe pre-accession phase. Choosing among exiting legal instruments is at discretion ofAlbanian drafters. However the legal instrument intended for implementation of the EUlegislation into national law needs to be binding and effective.While approximating the Albanian legal acts with the EU acquis, lawmaking authoritiesshould simultaneously take into consideration two important aspects: 1) the nature andthe scope of the EU legal acts regulating a policy; 2) the nature and the scope of theavailable legal acts that can be used for approximation.Albanian legal drafting rules cannot be neglected during approximation of legislation, onthe contrary they should guide the legal drafting as consequence of approximation.Several aspects of the law-drafting process discussed below should be taken into accountwhen aligning to EU legislation.1. Sources and Hierarchy of the Albanian Legal ActsWhile the nature and the scope of different kinds of EU legal acts is clearly presented inthe previous parts of this manual, this part aims at presenting the sources and the natureof the Albanian laws. A common understanding of the definition of existing Albanianlegal acts is a must for approximation at pre-accession and post-accession phases. A closeobservation of constitutional and legal rules related to the law making process isimportant for meeting two main principles of EU law and Albanian law: rule of law andlegal certainty.The general legal drafting and law making rules are foreseen in the Albanian Constitution,by law 9000 dated 30.1.2003 “On the Organisation and Functioning of the Council ofMinisters” and in the Rules of the Council of Ministers (DCM 584, of 2003 ad amended). The sources of law and the hierarchy of norms Article 116 of the Albanian Constitution: 1. Normative acts that are effective in the entire territory of the Republic of Albania are: • Constitution, • ratified international agreements; • laws; • normative acts of the Council of Ministers. 45

2. Acts that are issued by the organs of local power are effective only within the territorial jurisdiction exercised by these organs. 3. Normative acts of ministers and steering organs of other central institutions of the state are effective in the entire territory of the Republic of Albania within the sphere of their jurisdiction.In addition to the legal acts listed in article 116, Article 101 of the Albanian Constitutiongives the right to the Council of Ministers to issue Normative Acts on an emergencysituation and following a special procedure.  Can normative acts of the Council of Ministers be used for the approximation with EU acquis? Normative acts of the Council of Ministers Article 101 of the Constitution The Council of Ministers, in cases of necessity and emergency, may issue, under its responsibility, normative acts having the force of law for taking temporary measures. These normative acts are immediately submitted to the Assembly, which is convened within 5 days if it is not in session. These acts lose force retroactively if they are not approved by the Assembly within 45 days.There are no rules that forbid the Albanian law drafters to use normative acts for theapproximating the EU law. However the particular nature and the procedure of thisinstrument - implying emergency and temporary vision - needs to be taken intoconsideration if ever considered for the approximation of EU law.  Does the Albanian Constitution define the various legal instruments?Unlike the EU treaty, the Albanian Constitution does not provide any specific definitionof the Albanian legal acts. The main underlying principle of the Albanian constitutionaland legal system is that all legislation is adopted by the Assembly. Albanian laws aredirectly applicable and they should be drafted in a way that provides clear rights andobligations to the addressees.In certain instances the Assembly may delegate to the Government the duty to providemore detailed and technical regulations. These instruments are considered subordinatelegal acts and are clearly defined by the Constitution and law 9000 dated 30.1.2003 “Onthe Organisation and Functioning of the Council of Ministers”. 46

Subordinate legal acts Article 118 of the Constitution 1. Subordinate legal acts (bylaws) are issued on the basis of and for implementation of the laws by the organs provided in the Constitution. 2. A law must authorize the issuance of subordinate legal acts, designate the competent organ, the issues that are to be regulated, as well as the principles on the basis of which these subordinate legal acts are issued. 3. The organ authorized by law to issue subordinate legal acts as specified in paragraph 2 of this article may not delegate its power to another organ.  What types of subordinate legal acts exist in Albanian legislation?The Albanian Constitution does not specifically list the kind of subordinate legal acts.However reading through the articles on the normative act of the Constitution we candistinguish the following: • Decision of the Council of Ministers • Order of the Prime Minister • Order of the Minister • Order of the central institutions • Rule of the Prime Minister, of Ministers and central institutionsThe definition of normative acts is provided by Law No. 9000, dated 30.1.2003 “On theOrganisation and Functioning of the Council of Ministers”. Law 9000 distinguishesbetween subordinate acts of normative nature and subordinate acts of individual nature. Types of acts Law 9000, Article 28 Types of acts of executive institutions are: a) normative act, which is the act adopted by the Council of Ministers pursuant to Article 116 of the Constitution; b) the Decision of a normative character, which is the legal act of the Council of Ministers regulating the relationship defined by law, setting general rules of conduct; 47

c) the Decision of an individual character, which is a legal act of the Council of Ministers that regulates a specific relationship, or is addressed to one or more subjects of the right, individually determined; d) the Instruction, which is the legal act of the Council of Ministers, the Minister or the director of central institution under the Prime Minister or the Minister, has an explanatory character, which sets forth in detail all the commandments of the law or decision of the Council of Ministers; e) the Order, which is the by-law of Prime Minister, minister or of the head of the central institution under the Prime Minister or Minister, which has an internal character, and may establish rules of conduct, general, or may regulate a specific relationship.  Can all sub-legal acts be used for approximation of legislation?There are two important elements to be considered by the Albanian drafter while usingsubordinate acts for approximation of EU laws: their character and the obligation topublish them in the official journal.It must not be forgotten that not all the subordinate legal acts are of normative nature.Some of them are acts of individual or internal character. As a rule, an act of individual orinternal character cannot be used for approximation of EU laws.  Publication of the legal actsWith regard to the publication of legal acts the following rules are provided:Publication of legal actsArticle 117 of Constitution 1. The laws, normative acts of the Council of Ministers, ministers, other central state institutions, acquire juridical force only after they are published in the Official Journal. 2. The promulgation and publication of other normative acts is done according to the manner provided by law. 3. International agreements that are ratified by law are promulgated and published according to the procedures that are provided for laws. The promulgation and publication of other international agreements is done according to law.Publication of laws 48

Article 29 of the Law 9000 1. Normative acts with the force of law, of the Council of Ministers are published immediately in the Official Gazette. 2. Decisions of Council of Ministers take legal effect after publication in the Official Gazette. 3. Instructions of the Council of Ministers and the Minister take legal effect after the publication in the Official Gazette. 4. Orders of the Prime Minister, Minister or the director of central institution under the Prime Minister or the Minister, enter into force immediately, are announced to stakeholders and posted for at least 3 days in a conspicuous place of the respective institution.Albanian law drafters cannot use orders of the Prime Minister, Ministers or of directors ofcentral institutions to approximate EU legal acts because they are acts of individualnature, they do not provide rights and duties of a general character and there is noobligation to publish them on the official journal.  What are the rules of Council of Ministers and Ministers and of central institutions?The response is provided by the Albanian Constitution. Article 119 of the Constitution 1. The rules of the Council of Ministers, of the ministries and other central state institutions, as well as orders of the Prime Minister, of the ministers and heads of other central institutions, have an internal character and are binding only on the administrative entities that are subordinate to these organs. 2. These acts are issued on the basis of law and may not serve as a basis for taking decisions connected with individuals and other subjects. 3. The rules and orders are issued on the basis of, and for implementation of, acts that have general juridical force.  Questionable methods of approximation: the cases of approximation of EU law through regulations adopted with order of MinistersThe Albanian legal approximation practice of the last ten years shows that many of EUregulations and directives are approximated by regulations which themselves are adoptedwith order of Ministers. These are very common in the areas of free movement of goods, 49

consumer protection, transport and other aspects of internal market acquis. The spirit ofthe constitutional provisions entails that regulations/rule of minister serve the purpose ofself organisation and functioning of the institution. The orders are generally decisions ona specific/narrow issue. Therefore, their use to approximate fundamental EU pieces oflegislation such as regulations and directives into national legislation should be viewed asinappropriate. Example Regulation 854/2004/EC is approximated with Order of Minister no.21, date 25.11.2010 approving the regulation on “On specific rules for the organisation of official controls on products of animal origin” Directive 96/23/EC is approximated with Regulation of Minister No 1 of 17 March 2000 “On measures to monitor certain substances and residues thereof in live animals and animal products”  Approximating with a law or with subordinate legal actsThe Albanian Constitution does not foresee general provisions limiting the degree ofdetail that may be contained in the provisions of a law, nor does it limit the extent towhich a law may grant delegated legislative competence to the executive. However, theConstitution does specify that legislating for certain purposes and in certain areas isexclusively reserved to the Assembly and cannot be delegated to the Government. This isthe case for legislation restricting human rights (Article 17), imposing taxation (Article155) and other matters. Considering the hierarchy of legal acts in Albania, the Decision ofCouncil of Ministers should be considered as an appropriate instrument when it comes todelegated approximation of EU legislation. Following this logic, generally laws shouldrather be used for approximation with EU Regulations (which in EU Member States aredirectly applicable without transposition) and with Directives, which include generalprinciples of the specific area or horizontal directives. Laws should also be used fordirectives which confer the rights and obligations to natural and legal persons and for alllegal acts whose transposition is intended for amending the existing laws or has politicalimplications. In return, bylaws should rather be used for approximation of technicallegislation and other legislation when new institutions, new rights and obligations orpenalty provisions are not needed. As a rule, new obligations, new institutions and penaltyprovisions cannot be introduced with a bylaw. 50