National level

TABLE OF CONTENTS

 

Introduction

European level: factors coded

National level: factors coded

Limitations

Coding method 

Example of coding

Visualisation

B. National level

a) National transposition technique

Assumption: the transposition of a directive through satellite laws or specialized codes leads to more convergence than its transposition through civil codes.

This variable entails that if a national legislator chooses to implement European legislation by means of a specialized code or satellite law, the rules are likely to retain their European identity. On the contrary, if new consumer rules derived from the European level are taken over into the national web of the civil code, it is likely that they will have to fit the existing framework and thus the converging force might be weaker. One argument supporting this view is that when integrated into a civil code, rules on consumer protection must follow the terminological pattern already provided by the civil code. This danger is lessened in the case of specialized codes, given their focus on special law, such as that covering consumer protection. In the case of satellite laws terminology is not necessarily an issue, since as it has been shown in Chapter 2, national legislators using satellite laws to implement European law have a tendency to use a copy-paste approach to the content of the obligations. This factor has been inspired, among others, by the Consumer Law Compendium analysis, which thoroughly assessed how consumer directives were transposed by Member States in their national legislation.

b) Reception of selected novel concepts

Assumption: incorporating European legal concepts into national legislation correctly leads to a higher level of convergence.

European terminology is an essential aspect of a unified European legal order. To start with, it can be held that any term used in a European context adds to this supranational terminology. The present factor focuses on a defined selection of so-called ‘novel concepts’. Novel concepts are understood to mean notions that give rise to legal rights or obligations, independent from any similar rights or obligations existing at national level. The reason why this factor is part of the Convergence Index is because it can be easily coded on the basis of the theoretical analysis already covered in Chapter 2. In the light of the articles indicated for every directive, a selection of novel concepts is made. Although this selection might seem rather subjective, it is by no means arbitrary and it reflects the essential features of each directive, equally discussed in Chapter 2.

c) Reception of selected open-ended norms

Assumption: incorporating open-ended norms into national legislation correctly leads to a higher level of convergence.

As indicated above, this study takes open-ended norms to mean behavioural and moral standards that parties are held to respect in a given contractual situation, with circumstantial content that is determined on a case-by-case basis. This factor is partially connected to terminology, just like the novel concepts variable. Similarly to the latter, a selection of open-ended norms is made on the basis of directive-based characteristics. The contribution this factor makes from a convergence perspective lays in the fact that Member States transplanting European open-norms into their national legal framework indirectly ‘download’ the separate European terminology. What is also important to mention is that this terminology comes with a separate content, which should ideally be treated independently from whatever equivalents might exist in national law. This is a flexible indicator, meaning that it goes beyond a terminological match, and it takes into account functional equivalents of the open-ended norms mentioned in the European instrument.

d) Reference to European law in end legislation

Assumption: reference to the European instrument made in transposing legislation leads to more convergence.

This factor focuses on European law awareness and it entails that explicit reference to the European instrument can signal the source of the rules. Being aware that specific consumer rules stem from the European legislator helps practitioners to interpret them in the light of European law, instead of mistaking this identity for a national framework. In the light of the assumption this factor entails, it is not necessary to focus on the official publication journals, but to select generally-accepted trustworthy online databases which practitioners normally use on a day-to-day basis.

e) Timely transposition (date of national legislation)

Assumption: transposing a directive within the time frame established by the European legislator leads to more convergence.

This variable has two dimensions: an objective one, reflecting the dates when Member States enacted transposing laws; but also a subjective one, reflecting one of two situations – the national legislator was either unable or unwilling to comply with the implementation obligations. Regardless of which situation a Member State may be in, untimely transposition can be considered to hinder harmonisation. As such it has been said that failure to implement the Directive by a specified date entails that national courts need to interpret national law in the light of the purpose of the Directive, as mandated by direct effect. However, sometimes it might prove difficult for national courts to do just that. In such a case, the consumer is only left with having to take recourse against the Member State, which might have a deterring effect. Although untimely transposition may also be the subject of infringement procedures, many applications started in this sense may be removed from the Registry of the Court because the Member States in question have, in the meantime, enacted implementing legislation. So in order to avoid the bias of overlooking these cases, only the dates of initial implementation will be taken into account instead. Similarly to the ‘Transposition techniques’ factor, choosing timely transposition as a variable was equally inspired by the analysis included in the Consumer Law Compendium, where timely transposition was also discussed for the directives under scrutiny. Moreover, the Internal Market Scoreboard also tracks timely transposition in one of the tools it offers.

f) Infringement procedures

Assumption: transposing a directive correctly leads to more convergence.

Similarly to timely transposition, infringement procedures are one way of looking at Member State behaviour when assessing willingness to engage in harmonisation efforts. Infringement procedures may be taken against a Member State pursuant to Article 258 TFEU for the failure to fulfill an obligation under the Treaties, be it regarding the untimely adoption of implementing measures, or issues regarding the conformity and correct application of these measures. However, this last factor only takes into account resilience to harmonisation, manifested in the incorrect transposition of European law. To avoid any overlap with timely transposition, only those infringement procedures resulting in CJEU decisions on incorrect transposition will be taken into account. I acknowledge there might be a bias in what concerns infringement procedures, since it is not always clear how the Commission chooses the Member States it wants to bring before the Court. However, infringement procedures are still relevant to the Convergence Index in spite of this issue. Regardless of how they are selected, infringement procedures for incorrect transposition can still be interpreted to show that the Member State in question has not complied with the desired harmonisation outcome.