Domestic implementation of EU regulations in Estonia: a flawed methodology or necessary transposition?

Abstract:

One of the main conditions of accession established for candidate countries such as Estonia, is the transposition into domestic law, of the acquis communautaire. This includes the implementation of Community Regulations, since these are not yet 'directly applicable' in Estonia, within the meaning of Article 249 (ex 189) EC Treaty. The Estonian Government intends to repeal (or otherwise cancel), on the date of accession, all legislation previously enacted by it to give effect to various Regulations. The justification for this proposed repeal procedure (which was also used, for example, by Finland and Sweden on their accession to the EU), is the application of the principle of direct applicability under Community law, whereby domestic measures of adoption or transformation are rendered superfluous and may be unlawful.

It is argued that such a repeal procedure is entirely unnecessary unless co-existence with the relevant Community Regulations makes it difficult or impossible for individuals to ascertain their rights, or in cases when the transposition into domestic law is inconsistent or incomplete. On the contrary the extensive legislative efforts of Estonia may be regarded as making explicit, rather than obscuring, the application and effect of relevant Community Regulations. Furthermore the principles of direct effect and of supremacy of Community law (as applied by the Estonian courts after accession) should be sufficient to give effect to any provision of EU Regulations which were found to be in conflict with Estonian law. Such incompatibility is unlikely because of the continuous monitoring by the European Commission of compliance by the candidate countries with the Community acquis, prior to accession.

Requiring the legislature of candidate countries to undo what has been done by them specifically to give effect to Community law is arguably unnecessary and wasteful of energy and resources. It is based on an erroneous interpretation of the case law of the European Court of Justice.