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German Research Institute for Public Administration

Problems in implementation of EU law through national law due to misjudging the national leeway

The Brexit-referendum and Europe critical or hostile tendencies in EU member states influence considerably the discussion on Europe's future and show up the fear of both "european uniformisation" and loss of national political and administrative leeway. Yet the national politics undervalues the existing political and administrative leeway within the European legal frame and reclaims the control over political fields, of which it has never renounced.

The project focalises on the problems of implementation of EU law in the national legal systems by the misunderstanding of national leeway (margin of appreciation) and explores the question of the misinterpretation or undervaluation of potential leeway allowed by the EU legislation to the domestic administrations and legislators. Indeed, the german administration cannot sufficiently recognize and use the leeway, in particular by preparing transposition acts. When a member state overinterpret EU guidelines in the light of regulatory density and depth in order to deduce constraints which do not exist, that could lead to overfilling of EU guidelines ("unintentional Gold-Plating").

The consequence of this phenomenon is the existing difference between legislation (law) and legal studies in the EU member states. They have developed their own routine and work manner in understanding and interpreting statutes, judgments and other legal. Yet the respective access to legal instruments is so internalized that it could be rarely reflected: it concerns obviously presupposed implicit knowledge considering the respect of member states' methodical approach and their traditions. Thus, the significance (meaning) of the same word order (phrase constructions) in a statute text is understood in particular way from both legal scholars and domestic administrations.

Based on this consideration it is clear that the German legal methodology bears a serious risk of misunderstanding of national leeway which effects could appear without hesitation in the process of EU law implementation. In the case of misinterpreting the EU law by the german legal scholars, it is possible to conclude that the difficulties of the EU law implementation may not derive from the EU legal framework to be implemented as such. Rather, the problems may lie on the national level and lead to excessive strict application of EU law even then when the text allow the exercise of a leeway. Decisions of the European Court of Justice could not be interpreted in the same way as judgments and decisions of German national courts. So, corresponding to its praxis, the European Court of Justice responds only to questions, asked in the concrete procedure, so that the motivation elements do not generally have any impact. In contrast to this praxis, the motivation of decisions of the federal German courts as well the Federal Constitutional Court are formulated in order to show, based on the concrete case, both the abstract understanding of the concrete questions and their place in the legal system. The motivation of german courts contains important information which significance exceeds the concrete case. Exactly this claim is not present in the juridical praxis of the European Court of Justice and general law principles could not be immediately deduced from its decisions.

Political and administrative leeway is not used, when a political agenda of "minimalistic transposition" exists and also when the objective is to avoid all possible changes, despite the duty of implementation. This is problematic in particular when there is no aim to protect a specific national political concept. The impossibility to modernize various legal areas and the misunderstanding of national leeway result in the reluctance to change the domestic legal system through implementation of EU legislation. This rejection could cause unnecessary internal divisions (and considerable difficulties) in the legal systems of EU member states.

Based on case studies, answers of these questions will be explored in order to formulate recommendations for the administrative praxis.

Senior Fellow

Prof. Dr. Ulrich Stelkens



Ass. iur. Melanie Payrhuber