Page 179 - Секретаријат за законодавство

When transposing the EU secondary legislation in national law, very
often, the experts concentrate only on the binding provisions and arti-
cles of the legal act, but in this process it is important not to neglect the
preamble in which the background and the main goal of the EU legal
act is elaborated. When transposing the legal drafter should take into
account and consider different approximation measures.

Minimum approximation means that the EU legal act provides the le-
gal framework and sometimes very detailed rules on the subject mat-
ter, but EU Member States are free to introduce higher standards. As
an example we can refer to the Council Directive 2003/9/EC of 27
January 2003 laying down minimum standards for the reception of
asylum seekers. This directive gives the Member States option to in-
troduce or retain more favourable provisions in the Þeld of reception
conditions for asylum seekers.

Maximum approximation, on the other side means that a particular EU
legal act provides for the provisions, which are not subject of choice
or change. Therefore the EU Member States shall transpose such pro-
visions without amending them or reformulating them in such a way
that the provisions in question lose their meaning or the standards set
by the EU instruments are not met.

In EU law, the provisions requiring the maximum approximation are
used in speciÞc areas, where the uniform approach of all EU Member
States should be ensured. As an example we can refer to the Directive
2006/42/EC of the European Parliament and of the Council of 17 May
2006 on machinery prescribing essential safety and health require-
ments for this category of products which should be prescribed in the
national laws of all Member States.

When transposing EU legal instrument into national law the legal draft-
ers should especially take into account following recommendations:
• Choose the most effective form of national legal measures;
• Use legally binding measures;

• Ensure publication of implementing measures;
• Individuals should be able to ascertain the full extent of rights
envisaged in EU legal act, from the national provisions;

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