European integration, import of EU legislation and practical solutions for shaping benefits, OP-ED

The body of the EU’s regulations gradually immigrates to the national legislation. This process is not only gradual, but also continuous. Initiated more actively after 2010, the import of the EU norms extended and intensified with the dialogue on the liberalization of the visa regime in 2010 and the subsequent implementation of the Association Agreement, starting with September 2014. The European norms began to be transposed to the national legislation about eight years ago and the process will continue as long as the European integration will remain a national priority, either enshrined in the country’s Constitution or not (IPN, December 18, 2017).

As the relationship with the EU was formalized in a new agreement, the citizens are now more advantaged than at the start of 2000. However, the number of real benefits is smaller than the number of European norms reflected in the national legislation in one form or another. This shows that the level of Europeanizing the legislation is no way proportional to the positive impact hat this generates for society at present.

On the one hand, the government is trying to offset the handicap of low internal legitimacy by exploiting the relations with the EU. On the other hand, the effects of the European integration are limited. The often human exodus from public institutions, the political will that is usually detached from the public interest and the emptying of public funds that was last time caused by the banking fraud create a series of systemic constraints. As a result, the attempts to extract as many practical benefits as possible from the European integration for the citizens who are determined to remain in the county or are yet poorly equipped to emigrate are thwarted.

“Door” through which EU legislation enters

The approximation of the national legislation to the EU norms results from the commitments assumed by Moldova through the Association Agreement with the EU. In accordance with settlements reached with Brussels, the Moldovan authorities individually decide the order of the European norms that should be merged with the existing national legal framework.

There are two key conditions that dictate the pace of transposition of the Community acquis (European legislation): (1) calendar agreed by Chisinau through the Association Agreement and (2) regular legislative transformations inside the EU.

The first condition consists in the multiple obligations for the Moldovan side to obey the time limits stipulated in the Agreement. Moldova is yet fully entitled to ask for and negotiate a new calendar whenever it considers necessary. Even if the Agreement envisions the political and economic integration with the EU, Brussels shows flexibility in agreeing new calendars and the volume of assumed commitments. The inclusion of the EU directives in the annexes of the Association Agreement, not in the body of the document, favors the modification of schedules. The political ambitions expressed by the Moldovan government during the initial negotiation of the Agreement and the incorrect assessment of the institutional capacities led to the acceptance of unrealistic time limits for transporting the agreed Community acquis. The irrationality of the political factor, complexity of the assumed commitments and deficiencies of the public sector can lead both to the rearrangement of deadlines and to the incorrect transposition of the EU norms.

The second condition refers to the own metamorphoses through which the European legislation goes, influenced by the events inside the EU (financial crisis, sector developments). The supranational manifestations of the European Commission, the more frequent interventions by the European Parliament and the negotiations between the national governments also contribute to the diversification of the European acquis. Based on these changes, Moldova has to adjust the national legislation that was earlier aligned with the European norms. Owing to this dynamic harmonization, it is possible to ensure an updated national legal framework identical to the renewed European one.

Moldovan legislation aligned with European parameters

The reflection of the European provisions in the legislative process in Moldova became a strict norm. Besides the contractual obligations deriving from the Association Agreement and the initiative to “constitutionalize” the European course, the government led by the Democratic Party managed to naturalize the principle of “Europeanization” in the process of making Moldovan legislation. Thus, the new law on regulatory documents (Art.3, p. 3), adopted at the end of last December, provides that the regulatory documents (laws, Government decisions etc.) should comply with the Constitution, international treaties and the legislation of the European Union. The same law (Art. 31) says the European norms are transposed in accordance with the commitments undertaken through the Association Agreement and other international treaties signed with the EU.

The given law also introduces the “EU monogram” in legislative usage. The use of the monogram will enable to make a distinction between the bills designed to ensure the harmonization with the EU acquis and the other draft laws. Also, a concordance table will be used for these specific types of bills. If need be, an “analysis of compatibility” with the European legislation can be conducted when drafting the law.

This way, the EU legislative practice is turned into a model source of inspiration when thinking up the concept, the structure of the draft law and the substantiation concerning the necessity of particular bills.

Even if the European norms acquire an extended role in the lawmaking process as a result, this law wasn’t boycotted by President Igor Dodon, the Socialists, the Party of Communists or other political forces interested in limiting the proportions of the European integration.

Transition from “Europeanization” of legislation to molding of daily reality

The legislative stage of the European integration is an important initial stage. For changes to be brought about, the “Europeanized” legislation should be finally implemented. This aspect is very sensitive, being blocked by systemic constraints, such as limited resources, vulnerable institutions and volatile political will.

The instruments used to stimulate reforms related to the European agenda, including the transposition of the European legislation, contain a common deficiency. The same National Action Plan for implementing the Association Agreement developed by the Government or the Association Agenda structured together with the EU focuses mainly only on the adoption of laws and derivative actions. For now, there was instituted no instrument for supervising the quality of implementation.

Therefore, most of the results were achieved recently in the banking sector, where the International Monetary Fund de facto follows how new the legislative measures are implemented. The introduction of particular conditions for releasing the €100 million in macro-financial assistance also puts the adoption of laws at the forefront.

The laws harmonized with the European norms will yet bring maximal benefits to the citizens when they are implemented. A complex instrument from the EU is thus needed. Exactly as in the case of the Plan of action used by the EU to liberalize the visa regime for Moldova, the given instrument at the first stage would include the monitoring of the adopted legislation, while at the second stage the quality and sustainability of implementation.

Thus, the EU can develop action plans for the crucial sectors of the Association Agreements, with multiplication effect, such as justice, infrastructure, competition and food security. In the absence of such Action Plans for the Association Agreement and of two stages of monitoring on the part of the EU, the European integration will be reduced to the “Europeanization” of the legal framework, making the implementation of the Agreement a secondary action.

The meeting of the EU – Moldova Association Council scheduled for April 2018 is an occasion for discussing such an instrument that could generate palpable effects for the citizens and in the country, in general.

Instead of conclusion...

In 2018, it will be two years of the coming into force of the Association Agreement and four years of provisional implementation. But this generated isolated successes only and for rather narrow categories of citizens. 

Being in a vulnerable position, including because of the electoral year and the assessments for the macro-financial assistance, the government could be willing to accept a new instrument with which the EU would be able to assess not only the level of transposition of the Community acquis, but also the quality of implementation of the legislation.

The malfunctions in Moldova can be removed not just by “Europeanizing” the national legal framework, but also by extracting benefits for the public at the stage of implementing this.