Drafting a new law, or amending existing legislationThe Albanian rules and the Albanian legal drafting practice offers several elements thatthe drafter have to have in mind while deciding whether to draft a new law of amend theexisting one. It is important that the drafter realise how much is going to be changed interms of quality and quantity. If more than half of the procedures are changed because ofthe amendments, or new rules of behaviour are introduced, the drafter should considerdrafting a new law rather than amending existing one. Other aspects relate to theprocedure of enactment and the consistency of legal system. For instance laws subject toan enhanced majority procedure must be modified by laws enacted by the same procedureand not by the simple majority generally required. Similar legal issues should be regulatedin the same law rather than being spread over several laws. The drafter should ensure thata law is consistent with the existing legal order and ensure, by amendment or repeal, thecoherence of legislation by eliminating conflicts between different legislative provisions asthey arise.When it comes to approximation of legislation, the practice of the last ten years showsthat when introducing new policy areas covered by EU legislation or when Albanianlegislation develops to fill in existing gaps, the adoption of new laws rather than amendingexisting ones has proven a more efficient approach to approximation. It must be noticedthat although Albanian legislation relies extensively on the Codes (e.g. criminal, civil,administrative codes), approximation to EU law has been done through introduction of anew law a fact that at times has caused conflict. Therefore, the drafter should either opt tointervene directly in the provisions of the Code or in any case ensure that new laws are inharmony with the existing legislation (be it code or another law). Does approximation of an EU legal act correspond to only one national legal act?In choosing the best possible domestic legal act for transposition of each EU lawprovision, the national legislator should consider the cases in which intervention in morelegal acts is necessary. This is often the case when the national legislation in that field isalready developed through different legal acts. However, the inverse logic is noticed aswell: in some cases one Albanian law is considered to be an approximation of several EUpieces of legislation. This is not a correct understanding of approximation to EU acquis. Example The table of concordance of the law on integrated waste management shows that Law No. 10 463, date 22.09.2011 “on integrated waste management is approximated fully with Directive 2008/98/EC “On waste managemet which replace” Directive 75/439/EEC, 91/689/EEC and 2006/12/EC and is partially approximated with: 51
1. Decision 2000/532/EC; 2. Directive 1999/31/EC; 3. Directive 2000/76/EC; 4. Rregulation (EC) 1069/2009; 5. Directive 94/62/EC; 6. Directive 2002/96/EC ; 7. Directive 2000/53/EC; 8. Directive 2006/66/EC; 9. Directive 2006/21/EC; 10. Dirrective 96/59/EC; 11. Directive 86/278/EEC 12. Directive 78/176/EEC; 13. Rregulation (EC) 1013/2006; 14. Directive 2000/59/EC.Another issue noticed in the recent experience of approximation concerns theinconsistencies in use of terminology in different legal acts approximating one piece ofEU law. There cases in which definitions of the same concept differ in various laws andothers in which the definition of a concept provided in the bylaw is more accurate thanthat of the law which prevails on it. Example With the Law on Fishery No. 64/2012 dated 31.05.2012 as amended, together with the Council of Ministers Decision No. 402 dated 08.05.2013 “on management measures for sustainable exploitation of fishery resources” Albanian authorities have made an effort to approximate the Albanian legislation with the Council Regulation (EC) No1967/2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea. However, both pieces of the Albanian legislation give definitions of the same terms used differently. As an example, in the Law on Fishery dredges are defined separately per type, while in the Decision a single definition appears. This can create confusion when implementing the national legislation and therefore, the unification of definitions and to have them in the Law is necessary. 52
2. Legal Approximation: Step by Step 53
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