The harmonization of legislation with Acquis Communautaire and Kosovo

Av. Jordan Daci

Capacity Building Adviser to the Office for International Financial and Economic Cooperation, Ministry of Finance and Economy

The harmonization of legislation with Acquis Communautaire represents one of the major challenges for European Union (EU) candidate countries. This includes those who aspire to join the EU in the coming years such as the so-called Western Balkan Countries. The harmonization of legislation is also one of the three main EU membership criteria also known as the Copenhagen Criteria (1993). In June 2003, the Thessaloniki Summit again reconfirmed the EU membership perspective for Western Balkan Countries - including Kosovo. Nevertheless, the pending final status of Kosovo remains one of the major barriers in terms of advancing relations between Kosovo and the EU and creates additional difficulties for the harmonization of legislation with Acquis Communautaire.

The term Acquis Communautaire was used for the first time in an Opinion of the EU Commission of 1 October 1969, in relation to the application for membership of the United Kingdom, Denmark, Ireland and Norway. In a clearer manner, this has been used in Article 2 of the European Union Treaty, known also as the Maastricht Treaty. In simple words, Acquis Communautaire means the ensemble of rules that form the legal functioning framework of the European Community. Indeed, seen from a legal point of view, the process of harmonization of legislation with Acquis Communautaire de jure is not a legal obligation for Kosovo as long as the latter is not a member and does not yet have any contractual relations with the European Union. Nevertheless, the current cycle for the approval of laws and sub statutory laws requires the certification of their compatibility with Acquis Communautaire. The certification document is issued by the Agency for European Integration at the

Prime Minister’s Office.

The harmonization of legislation with Acquis Communautaire inter alia means the adoption of legal norms of Acquis Communautaire into the domestic legislation. The adoption is not a mechanical process, in other words

is not a literal approximation of legal text, but an approximation of standards. There are three types of harmonization:

a)     complete harmonization,

b)     partial harmonization and

c)     harmonization not applicable.

The third variant is valid for matters that do not fall under the jurisdiction of the EU institutions, while the second case includes matters that partially fall under such jurisdiction. In parallel with the harmonization, all candidate members should translate the entire Acquis Communautaire into their national language, which is approximately 95.500 – 105.000 pages. The translation is a pre-condition for EU membership and the cost of the translation must be borne by the countries themselves. In 2005 Croatia spent over one million Euro translating this document, while FYROM18 spent about 360,000 Euro. The translation methodology involves the establishment of a Translation and Coordination Unit – (TCU) and the work is generally outsourced. After translation the text is revised by linguistic experts and lawyers with knowledge of foreign languages, then the text is submitted to a database provided by TAIEX and communicated to the EU Commission. However, Kosovo, FYROM and Albania have the opportunity to decrease translation costs. The Ohrid Agreement obliges FYROM to translate the Acquis Communautaire in both Macedonian and Albanian languages meaning the three countries can share the costs of translation. Firstly though, they would need to draft a common glossary that will unify the legal understanding of terms. However, it should not be forgotten that according to Ahtisaaris proposal, Serbian is also an official language in Kosovo. Therefore, Kosovo should also consider reaching an agreement with Serbia regarding the translation of Acquis Communautaire.

The sources of Acquis Communautaire are:

·        Primary legislation

·        Secondary legislation

·        Judgments of the European Court of Justice and the First Instance Court

·        Other courses.

The primary legislation includes: a) EU and Community Treaties, b) International Agreements singed by the Community with third parties and c) Stabilization and Association Agreements (their legal base is the article 310 of the European Community Treaty (former Article no. 238)). Meanwhile, the sources of the secondary legislation are defined in Article 249 of the European Community Treaty and include: a) Regulations, b) Directives, c) Decisions and d) Recommendations and Opinions. Other sources include: Acts adopted by member states representatives in the Council Meetings, General principles of law, General principles of international law and Domestic legislation of member states.

The experiences of other candidate countries have shown that this process is a very difficult one that requires a highly qualified public administration and a good national strategy including adequate financial support. In the case of Kosovo, the process of harmonization represents a real challenge for the newly established administration taking into account the general lack of experience, the lack of qualified human resources, and the lack of funds. Therefore, in order to successfully prepare itself for the initiation and completion of the harmonization process, Kosovo needs to immediately revise the existing civil service legal framework in order to create a sustainable base for capacity building and make the public administration attractive and at the same time accessible to highly qualified young graduates that are currently studying abroad in western universities.

This is the right moment for Kosovo to initiate and successfully complete a deep re-evaluation of the present civil service system in order to be prepared in advance for the challenge of the harmonization process and other interdependent and interrelated processes. The Kosovo public should understand that the European Integration provides a framework for development and common ground for all communities in Kosovo as well as countries in the region. In this respect it can help the region to overcome the conflicts of the past and those of present. Thus, the process of harmonization of legislation with Acquis Communautaire is one way for co-operation in the Western Balkans.