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Legislation and statutory interpretation.

Module A: Introduction to legislation.

Chapter 6: Implementing supranational legislation

The EU dimension: national implementing measures
The principle of autonomy is balanced by the equally important principles of subsidiarity, proportionality, adequacy, synergy and adaptability (the “five tests”).

Selecting the normative level
In choosing the form for the national implementing measures, one should consider:
 * the extent of legislative intervention required for full transposition
 * the type of the main EU instrument for transposition, and
 * the object of the national implementing measure.

Quality of EU and national implementing measures
Two aspects of quality (Jean-Claude Piris): quality in the substance of the law and quality in the form of the law. EU drafting rules can be classified into three categories: rules concerning the substance of the legislative text, rules related to the legislative process which leads to their passing, and rules relevant to technical drafting issues.

Implementing international agreements
Treaties including offences require national implementation even in the monist scenario. Even in the dualist scenario treaties remain binding and are applied in good faith irrespective of national implementation: ‘pacta sunt servanta’ under Article 26 of the Vienna Convention on the Law of Treaties.

In theory, effect to international treaties is given via four methods:
 * A
 * National implementing legislation may not refer to the international agreement, although it is advisable to clarify that its purpose is to give effect to the agreement;


 * B
 * National implementing legislation may refer to the international agreement and may give effect to it via separate substantive provision;


 * C
 * National legislation may include the international agreement in a schedule for information purposes only; or


 * D
 * National legislation may set out the agreement in a schedule and award it, or part of it, force of law.

In practice, effective implementation can lead the drafter to four choices:
 * 1) Do nothing, if there is no need for further legislation; or
 * (B, D above) Pass an Act of Parliament incorporating the treaty wholly (for example the Diplomatic Privileges Act 1964) or partially (for example the Human Rights Act 1998); or
 * 1) (A) Pass an Act of Parliament that contains the necessary powers
 * 2) (C?) Comply with the obligations arising from the treaty without necessarily incorporating the treaty itself; or pass delegated legislation to combine reception of a number of treaties.