1. Introduction. – 2. Analysis of approved laws and table of concordance. – 3. Understanding of community law and the preparation of domestic legislation analysis. – 4. A comparative perspective of the EU integration process of Western Balkan countries. – 5. Conclusions.
1 INTRODUCTION
The harmonisation of domestic legislation with European legislation is one of the main obligations established by the Stabilisation and Association Agreement (SAA).3 This process began in the early 90s through the signature and implementation of the Trade and Economic Agreement.4 This Agreement established the harmonisation of domestic legislation with that of European legislation in economics.5
Though the process of approximation and the establishment of the specialised structures responsible for its functioning intensified much later in 2003. The institutional evolution of this process and the legal framework that handles it developed as follows:
•Establishment of the Directory of Harmonisation of legislation at the Council of Ministers in 1999,
•In 2000, transferee of the Directory of Harmonisation of Legislation from the Council of Ministers to the Ministry of Justice,6
•Establishment of the European Integration Ministry (MIE) and transfer of the Directory of Harmonisation of Legislation from the Ministry of Justice to the MIE in February 2004,
•Establishment of the Committee for Inter-Institutional Coordination of Integration,
•Establishment of the Inter-Institutional Working Groups by the Prime Minister Order No. 46, dated 10.04.2006,
•Establishment of the Sector for Harmonisation of Legislation at the Parliament,
•Establishment of the European Integration Units at the Line Ministries, by the Council of Ministers Decision No. 179, dated 22.02.2006,7
•Approval of Decision No. 119, dated 07.03.2007, “On procedures of Translation the Legislation in Albanian and of Albanian legislation in any of EU languages,”8
•Approval of Law No. 15, dated 05.03.2015, “On the role of the Parliament in the integration process of the Republic of Albania in the EU,”9
•In 2017, the transfer of the staff of the Ministry of Integration to the Ministry for Europe and Foreign Affairs, and
•In 2022, the transfer of the staff dealing with integration issues to the Minister of State and Prime negotiator.
The first Directory of Harmonisation of Legislation was set up at the Council of Ministers in 1999. The staff and its competencies were limited. In 2000, the Albanian government decided to give more priority to the integration process, and so decided that this Directory should be transferred to the Ministry of Justice. The number of sectors for this Directory increased from two to three in total. In 2004, it established the Ministry of Integration (approximately 75 employees). The reason for its establishment was the fulfilment of the negotiation process for the Stabilisation and Association Agreement (SAA) between the EU, its member states, and Albania. Following this, in 2006, the Committee for Inter-Institutional Coordination of Integration and the Inter-Institutional Working Groups (structures dedicated to specific fields of negotiations) were established. During the first stages of the harmonisation of domestic legislation with that of the EU (1999 till 2006), Albanian institutions held a relatively poor level of knowledge of this process. The harmonisation process, including the obligation to harmonise draft acts with EU legislation, was hardly understood by central institutions. The staff of legal directorates in these institutions were not aware of the European legislation and the website.10 Only after several years of trainings held by the European Commission through the Technical Assistance and Information Exchange (TAIEX) program and other technical assistances dedicated to integration and harmonisation of legislation issues, did the Albanian administration attain better knowledge of this matter and draft a law on harmonisation with EU legislation.
Since 2006, the process of harmonisation of domestic legislation with that of the EU is established by SAA. This obligation, the evolution of the entire integration process, and the impact of the study of European law in schools enabled a deepening of public administration knowledge. In this regard, a sector for harmonisation of legislation was established in the Parliament; every ministry has its own integration unit. Once the harmonisation of legislation became an obligation established by the article 70 of the SAA, it was approved under Decision No. 119, dated 07.03.2007, “On procedures of Translation the Legislation in Albanian and of Albanian legislation in any of EU languages,” establishing the translation procedure and its fees.
According to the SAA implementation, the Albanian Parliament must hold a leading role in the integration process, especially regarding harmonisation of legislation. To fulfil this obligation, it was approved under Law No. 15, dated 5.03.2015, “On the role of the Parliament in the integration process of the Republic of Albania in the EU.” In 2017, the staff of the Ministry of Integration was transferred to the Ministry for Europe and Foreign Affairs (internal decision of governance). In 2022, the staff handling integration issues transferred to the Minister of State and Prime negotiator. This structure was created after the EU General Affairs Council opened accession negotiations with the Republic of Albania on March 25 of 2020, accounting for the progress achieved in reforms and the fulfilment of conditions.
According to the DCM No. 179, dated 22.02.2006, the European Integration Units at the Line Ministries hold a supporting role for their institutions regarding the harmonisation of laws. Their tasks are identified as follows:
1.External institutional coordination and coordination of work between the Ministry of European Integration and the Line Ministries in the process of approximation of national legislation with the EU legislation and in the recording of normative acts that adopt EU legislation, under the framework of TAIEX program.
2.Internal institutional coordination for the arrangement of the reports on the European integration process.
3.Monitoring and recording within the Ministry related to European integration issues.
4.Distribution of data on the European integration process between the Ministry of European Integration and Line Ministries.
5.Evaluation of the activity carried out by the Ministry in proportion with the progress in the European integration process, proposing the functional mechanisms for the sector reforms’ implementation.
6.Suggesting priorities, distribution of the human resources, and planning activities for the institutional support of the European integration process.11
The role of the Parliament in the process of SAA is regulated by Law No. 15 of 05.03.2015, “On the role of the Parliament in the integration process of the Republic of Albania in the EU.”12 The procedure for reviewing the compliance of domestic legislation with that of the EU in Parliament is detailed in an act of the Albanian Parliament and in Law No. 15/2015, dated 5.03.2015.13 These acts stipulate that draft laws aimed at the approximation of Albanian legislation with that of the EU must be accompanied by an explanatory report and compliance tables (approximation instruments). The bodies of the Parliament (Speaker of the Parliament) and the Commission for European Integration may return to the initiator of the draft laws when they find deficiencies in the documentation accompanying the draft law.
The draft laws proposed to Parliament that direct the harmonisation are reviewed by the Commission for European Integration. When examining the compatibility of the draft law with the EU acquis, the Commission analyses the compliance tables accompanying the draft law, comparing the text of the draft act with the secondary legislation under which the draft act is aligned. After the review, the appropriate member of Parliament compiles the relevant report, which contains the degree of harmonisation of the proposed draft law with the EU acquis, as well as the relevant amendments to improve the articles of the draft act for harmonisation of legislation. Then, it is sent to the responsible commission and plenary session. In a plenary session, the review of the draft act’s compliance with the EU acquis occurs according to the usual legislative procedure.
2 ANALYSIS OF APPROVED LAWS AND TABLE OF CONCORDANCE
This chapter presents an analysis on some approved laws, their table of concordance, EU legislation that should be approximated, law reports, and some general comments on the aforementioned topics.
Our analysis starts with Law No. 10480, dated 17.11.2011, “On the general safety of non-food products.”14 The institution that proposed this law is the Ministry of Economy, Trade, and Energy.
The content of the law, “On the general safety of the non-food products,” aims to protect consumers and the public. It defines the operators’ obligations and identifies responsible structures to guarantee product safety. It also foresees the imposition of administrative penalties, such as fines, in the case of infringements performed by commercial operators.
This law is partially approximated with the Directive No. 2001/95/CE of the European Parliament and the Council, of 03.12.2001, “On general safety of products.”15
In addition, it partially approximates the Regulation 765/2008/CE of the European Parliament and the Council on 09.07.2008, “Setting out the requirements for accreditation and market surveillance relating to the marketing of products.”16
By analysing the above-mentioned law, one determines that the law No. 10480, dated 17.11.2011, meets the formal legal requirements for the approximation process. The Integration Committee has conducted the formal control of the approximation process, and according to it, this law partially approximates two EU secondary laws.
This finding of the Integration Committee is accurate because, as it results from the content of law, it identifies different definitions from those in the directive 2001/95/EC and Regulation 765/2008, and it has not fully reflected the goal and articles of Regulation 765/2008. The determination of the compatibility level of domestic laws with that of European legislation belongs to the Albanian institutions, which should explain and motivate the compatibility level of the Albanian law (partial or full approximation) in any case. The lack of preliminary analyses of law benefits creates a challenge when assessing whether the institution is ready to ensure full alignment. The accompanying report of the law has shortcomings in terms of this analysis.17
The second law we will analyse regards the approximation procedures of Law No. 27 in 2018, “On Cultural Heritage and Museums.”18 This Ministry of Culture proposed this law. We will present a model of the table of concordance filled with the information of two articles and their levels of compatibility with the EU legislation.19
|
Directive 2014/60/EU of the European Parliament and of the Council of 15 May, 2014, on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 OJ L 159, 28.5.2014 |
Law on Cultural Heritage and Museums Compliance rate: Partially compliant |
||||
|
1 |
2 |
3 |
4 |
5 |
6 |
|
Article |
Text |
Article |
Text |
Compliance |
Notes |
|
Article 1 |
This Directive shall apply to the return of cultural property classified or designated by a Member State as a national treasure, as referred to in point (1) of Article 2, which has been unlawfully removed from the territory of that Member State. |
Article 122, para 1 |
Principles related to illegal departure outside territory 1. National treasures which have been issued illegally, within the meaning of point 45, article 5, will be returned according to the provisions of this law and international agreements. |
Fully complied |
The scope of the directive is integrated in chapter 2 of the draft law (Articles 121-131), which regulate the international circulation of international assets |
|
Article 2, para 2 |
2) ‘Illegally removed from the territory of a Member State’ means: a) removed from the territory of a Member State in breach of its rules on the protection of national treasures or in breach of Regulation (EC) No. 116/2009; or b) did not return at the end of a certain period, from the time of lawful and temporary removal, or violation, of another condition. |
Article 122, para 2 and 3 |
Principles regarding the illegal removal of movable cultural assets outside the territory of the Republic of Albania 2. It is considered illegal to leave the territory of the Republic of Albania with the cultural values provided in this law in the following cases: a) When they are removed from the territory of the Republic of Albania in violation of the rules for the protection of movable cultural property defined in this law. b) When it is not returned at the end of a certain period from the time of lawful, temporary departure, or of any other violation. 3. Those cultural assets for which the temporary exit is authorized, but for which the conditions and measures reflected in the exit license have not been applied, are also considered illegal. |
Fully complied |
|
The table of concordance is a crucial element to the harmonisation process. Understanding its importance is necessary for inclusion of the tables of concordance of draft laws in the body of the draft act, and not as an annex of it. This ensures the existence of the table as an integral part of the act for the following years without risking the disappearance of this important part of compatibility. The same procedure is implemented in the drafting procedures of EU countries.
Special attention in the process of harmonisation of national legislation with that of the EU is dedicated to the issue of EU acts for translation. Based on the planning and prioritisation of the EU’s legal acts that will be harmonised with the corpus of domestic law, the Albanian institutions must prepare the annual plan for the translation of the relevant acquis. The process of translation of the acquis must be regulated by a special decision of the Council of Ministers. During the process of harmonisation of legislation, the need of a manual or data base with well-defined legal terminology in English and Albanian increases. This database should define the basic terms used in the field of harmonisation of internal legislation. It will be used by all persons involved in this field of translation with the aim of utilising a unified terminology for the complete harmonisation of legislation.
3 UNDERSTANDING OF COMMUNITY LAW AND THE PREPARATION OF DOMESTIC LEGISLATION ANALYSIS
The first step in the process of clarification of the EU legislation’s objective is the identification of its legal framework. The directive, part of EU secondary legislation, is composed of three components:
•the legal bases;
•the preface (preamble);
•the articles.20
Another important step is the identification of the administrative provisions. The Directive should determine an administrative body responsible for performing certain control functions. The Directive also must provide the following:
1.Determination of the problems related to terminology issues
Directives may identify a concept which does not have an Albanian equivalent. This lack of terminology could derive from the fact that the equivalent Albanian legal term has a slightly diverse definition, or simply because an Albanian term does not exist. This issue could be resolved by the national legislator who may choose the best terminology option. In such cases are the Directives required to foresee partial or non-mandatory harmonisation.21
2.Determination of the type of harmonisation
The preface of the Directive will indicate the type of harmonisation required. There are three types of harmonisation:
*Partial harmonisation; in this case, the Directive does not prevent stricter national rules. Directives of this type are often used in policy areas, such as consumer and environmental protection, where the objective is to ensure a certain EU-wide minimum protection.
*Full harmonisation; in this case, the national law strictly follows the articles of the Directive’s text. This is the case when technical requirements for products are harmonised to avoid barriers of trade.
*Non-mandatory harmonisation; this is a tailor-made harmonisation accounting for items such as the size, specific work areas, and norms to be fulfilled by enterprises.
3.Determination of the initial Directives to be implemented prior to others
Directives of the internal market may require prior implementation from Directives in other areas, as part of Copenhagen Criteria,22 such as the functioning of democratic institutions, rule of law and human rights implementation, and the ability to take on the obligations of membership. In Albania’s case, starting on December 1, 2006, the EU implemented the Interim Agreement on Trade and Commercial Cooperation between the European Community and the Republic of Albania, Law No. 9591, dated 27.07.2006, in order to implement the SAA agreement in the field of trade and commercial cooperation prior to other fields.
4.Determination of the domestic acts to be revised in compliance with the Directive
During the process of approximation of legislation, the existing Albanian legislation should transpose the Directive that corresponds to the same subject matter. In some cases, new laws will be needed, such as amended Law No. 9947, dated 07.07.2008, “On industrial property.”23 The approval of this law was an EU demand to include in the progress reports for Albania in 2006, especially regarding the alignment of Albanian intellectual property rights with EU legislation in this field.
However, in such cases, the Directive could also incorporate into existing laws that deal with identical topics.
5.Implementation of the principles of the Treaties and ECJ decisions
The Constitution of EU (Treaty) establishes the EU’s functioning pillars. In this document are foreseen objectives and policies implemented by the secondary legislation of the EU. The application of the general principles of community law is more complicated than the implementation of only the Directives’ text: it requires a greater general and extensive knowledge of European legislation and case law.24
Case laws of the European Court of Justice are an important source of interpretation of the EU’s legislation. The judges of new member countries have an important task regarding the recognition and implementation of the EU legislation during the legal disputes.25 Familiarity with the case laws of the European Court of Justice, with procedures implemented in these decisions and with the EU’s legislation, simplifies the work for the member countries’ judges.
4 A COMPARATIVE PERSPECTIVE OF THE EU INTEGRATION PROCESS OF WESTERN BALKAN COUNTRIES
The integration process for Western Balkan countries was established at the Thessaloniki Summit, held on 21 June, 2003. Its implementation was proposed by EU to potential candidate countries, such as Albania, Bosnia and Herzegovina, Croatia, North Macedonia, Serbia, and Montenegro. This process was implemented independently to Western Balkan countries.
The table below presents data regarding the most important milestone of the integration processes in the Western Balkan countries. Referring to these data, Albania started this process relatively late in comparison with the other countries. The continuity of the reforms, especially in the field of rule of law and the fight against corruption, was the primary concern of the EU. Also, the increase of economic growth was directly related to the achievement of the European standards.
In Albania’s case, the integration process was not hindered by war conflicts or non-respect of minority rights as in other Western Balkan countries (Serbia, North Macedonia). The slow development of its economy, the conduction of free elections, and corruption in high levels were the main problems during Albania’s long road of integration into the EU.
Regarding the progress of Albania’s integration process, during the last years, the country has depended on the progress of the North Macedonian reforms as well as the will of some EU member states to slow down the European integration process of this country. The SAA in other EU-aspirant countries took around 10 years to implement. In Albania’s case, 16 years have lapsed since its signature. In the North Macedonian example, it took 21 years for full implementation after its signature. Referring to the data found in the table, the fastest moving country in the EU integration process is Montenegro. Even though this country signed the SAA one year after Albania, Montenegro opened membership negotiations with the EU in 2012, while Albania opened membership negotiations 10 years later. This delay in the European integration process for Albania is related to the lateness in the reform implementation, the high level of corruption, and drug trafficking. From 2012 to now, Montenegro has opened all 33 screened chapters (harmonisation of legislation of every chapter) and closed three chapters already. Albania opened the screening process together with Macedonia in 2022. As mentioned above, Albania still has a long road ahead in the screening process. Although Albania’s European integration process has been long and difficult, it is important to note that this country was the first in the Western Balkans to implement the re-evaluation process of judges and prosecutors (vetting process). In 2016, the legal package was approved by the Albanian Parliament to start the transitional re-evaluation process of judges and prosecutors. This reform was undertaken under the conditions at that time when the judiciary system suffered from corruption among judges and prosecutors. Three independent bodies were established to realise this process.
To date, 64% of the vetting dossiers processed have resulted in dismissals, resignations, or termination of mandate of vetted magistrates.26 This process was monitored by the international experts of the EU.
|
Country |
Beginning of the relations with EU |
Signature of the SAA with EU |
Entry into force of the SAA |
Candidate country status |
Opening of accession negotiations with EU |
Inaugural meeting of the screening process |
|
Albania |
2004 |
2006 |
2009 |
2014 |
2022 |
2022 |
|
Bosnia and Herzegovina |
2005 |
2008 |
2015 |
2022 |
||
|
North Macedonia |
2001 |
2001 |
2004 |
2005 |
2022 |
2022 |
|
Montenegro |
2006 |
2007 |
2010 |
2010 |
2012 |
all 33 screened chapters opened (three of them provisionally closed) |
|
Serbia |
2005 |
2008 |
2013 |
2012 |
2014 |
22 out of 35 chapters opened |
|
Kosovo |
2005 |
2014 |
2016 |
5 CONCLUSIONS
During the first stage of SAA implementation, the harmonisation of legislation is focused on the most important fields, such as free movement of goods. A smooth harmonisation of legislation is established through starting with the most immediate field and followed by the other more complicated fields. The harmonisation of legislation is a demanding process because it focuses on two issues. The first one is the transposition of EU legislation in domestic laws. The second issue is related to the establishment of structural and administrative capacities. It requires a dedicated extra budget and trained staff to return to the issue of harmonisation of legislation. Regarding the first issue, it is important that the text of the transposed EC Directive be inserted in the table of concordance. The same EU act that is expected to be transposed should also be mentioned in the preface of the draft proposal, as European countries put into practice. The second requirement is essential, in the case that the table of concordance may be lost after some years, the mention of the EU legislation in the preface of the act serves as a memory of the transposed legislation in the domestic law.
After the approval of the harmonised national legislation with that of EU law, its implementation and enforcement are imperative. This obligation is established by the SAA. The approval of harmonised laws is not the only importance. The most important part of the harmonisation of legislation is the impact these laws will have after their implementation.
In addition, a data base on EU Terminology of Albanian and English languages for the Treaty Establishing the EU and European Community, the SAA, the Interim Agreement, European Partnership, etc. must be created. With this database, it will be possible to monitor uniform translation of Albanian legislation.
The most important issue Albania must address regarding its internal market legislation is not the approximation of their legal texts, but the adaption of their internal mechanisms in order to implement it wholly. This requires establishment of the necessary administrative institutions, adequate professional administrative capacities, and increased budget resources. The presence of enforcing authorities is crucial to provide certainty to other members of the community that legislation is properly implemented.
REFERENCES
1.Craig P and Burga G de, EU law: Text, Cases and Materials (OUP 2011). 194
2.Daci J and Mustafaj I, ‘The Process of Integration of Albania into the European Union from an International and an European Law Perspective’ (2011) 4(2) Revista shqiptare për studime ligjore 168.
3.Demi L, European Enlargement and the Integration of Western Balkans (Dudaj 2009). 49
4.Fejzulla E dhe Gugu A, ‘Vlerësimi i përputhshmërisë së ligjeve me acquis e BE-së dhe roli i Kuvendit në këtë proces’ (2012) 3 Buletini të Qendrës së Studimeve Parlamentare 1.
5.Kellermann A, ‘Raport mbi procedurat për përafrimin e Legjislacionit Shqiptar me acquis communautaire’ (2007) 38 E Drejta Parlamentare dhe Politikat Ligjore 12.
6.Zajmi I, E drejta Evropiane (EKD 2010). 38
References
1.Craig P and Burga G de, EU law: Text, Cases and Materials (OUP 2011). 194
2.Daci J and Mustafaj I, ‘The Process of Integration of Albania into the European Union from an International and an European Law Perspective’ (2011) 4(2) Revista shqiptare për studime ligjore 168.
3.Demi L, European Enlargement and the Integration of Western Balkans (Dudaj 2009). 49
4.Fejzulla E dhe Gugu A, ‘Vlerësimi i përputhshmërisë së ligjeve me acquis e BE-së dhe roli i Kuvendit në këtë proces’ (2012) 3 Buletini të Qendrës së Studimeve Parlamentare 1.
5.Kellermann A, ‘Raport mbi procedurat për përafrimin e Legjislacionit Shqiptar me acquis communautaire’ (2007) 38 E Drejta Parlamentare dhe Politikat Ligjore 12.
6.Zajmi I, E drejta Evropiane (EKD 2010). 38
1 Ph.D. (Law), Lecturer at the Private Law Department, Wisdom College University, Tirana, Albania erjolaxhuvani@wisdomuniversity.eu https://orcid.org/0009-0003-0555-7596
Corresponding author, responsible for writing, data curation and methodology.
Competing interests: Any competing interests were included here. Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations.
Translation: The content of this article was translated with the participation of third parties under the authors’ responsibility.
Funding: The authors received no financial support for the research, authorship, and/or publication of this article. Funding of this publication was provided by authors.
Managing editor – Mag. Yuliia Hartman. English Editor – Nicole Robinson.
Copyright: © 2023 E Xhuvani, N Mecalla. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
How to cite: E Xhuvani, N Mecalla ‘Case Study On Integration Process Of Albania Towards EU: Harmonization Of Domestic Legislation With That Of EU’ 2023 4(21) Access to Justice in Eastern Europe. https://doi.org/10.33327/AJEE-18-6.4-a000404
2 Ph.D. (Law), Assistant Professor at the Public Law Department, Wisdom College University, Tirana, Albania naimmecalla@wisdomuniversity.eu https://orcid.org/0009-0009-8040-7831
Co-author, responsible for responsible for writing and conceptualization. Competing interests: Any competing interests were included here. Disclaimer: The co-author declares that his opinion and views expressed in this manuscript are free of any impact of any organizations.
3 Office of the European Union, ‘Stabilisation and Association Agreement with Albania: Summaries of EU Legislation’ (EUR-Lex, 05 April 2019) <https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=legissum:4314911> accessed 15 May 2023.
4 Leonard Demi, European Enlargement and the Integration of Western Balkans (Dudaj 2009) 49.
5 Ligj Nr 9590, datë 27.7.2006 ‘Për ratifikimin e “Marrëveshjes së Stabilizim-Asociimit ndërmjet Republikës së Shqipërisë dhe Komuniteteve Europiane e shteteve të tyre anëtare”’ <http://qbz.gov.al/eli/ligj/2006/07/27/9590> accessed 15 May 2023.
6 Ministria e Drejtësisë dhe EURALIUS, Manual i Hartimit të Ligjeve: Një Udhërrëfyes për Procesin Legjislativ në Shqipëri (Pegi 2010).
7 Vendim i Këshillit të Ministrave Nr 179, datë 22.2.2006 ‘Për krijimin e njësive të integrimit europian në ministritë e linjës’ <http://qbz.gov.al/eli/vendim/2006/02/22/179> accessed 15 May 2023.
8 Vendim i Këshillit të Ministrave Nr 119, datë 7.3.2007 ‘Për përcaktimin e procedurave të përkthimit të legjislacionit të Bashkimit Europian në gjuhën shqipe dhe të përkthimit të legjislacionit shqiptar në njËrën nga gjuhët e bashkimit europian’ <http://qbz.gov.al/eli/vendim/2007/03/07/119> accessed 15 May 2023.
9 Ligj Nr 15/2015 ‘Për rolin e Kuvendit në procesin e integrimit të Republikës së Shqipërisë në Bashkimin Europian’ <http://qbz.gov.al/eli/ligj/2015/03/05/15> accessed 15 May 2023.
10 European Union: Official website <https://european-union.europa.eu> accessed 16 August 2023; EUR-Lex: Access to European Union law <https://eur-lex.europ