Few Remarks on the Duty to Notify National Law Drafts to a European Institution

Since the establishment of the European Union, Member States do not have complete free reign over their legislative activity. The influence of the EU institutions on new national laws has become stronger with the passage of time. Over the years, the Contracting States and the Union legislature have established an increasing number of obligations for national legislatures. The most common practice is the well-known duty to transpose directives into national law. These EU legal acts contain substantive law, rights and/or obligations for individuals, and thus encompass material provisions that can be subject to a transposition process. However, this is not the only way to influence national legal orders. A similar but far more complicated tool constitute procedural obligations to consult EU institutions on national draft laws. These obligations provide EU institutions with extraordinary powers to exercise their influence over national legal orders. Recently EU legislature established with Two-Pack ex ante control of national budgetary laws, a further obligation to notify Member States’ law to the Commission. A judicial review of these procedural duties runs also in an extraordinary way. While the Court of Justice of the EU introduced the terminus technicus “substantial procedural defect”, I would like to coin the term general preliminary ruling and principle of accessory division of competences.