Accession: the challenge for the States and for businesses

1. Dr Marta Sendrowicz, Allen & Overy, A. Pędzich sp. k. Accession: the challenge for the States and for businesses

2. Awareness and preparedness as main determinants in the accession process • Accession is a lengthy process both for the State and businesses • Association Treaties • Constant scrutiny of a Member State in the negotiation phase by the European Commission • Ensuring incorporation of the acquis into the national legal system vs. considering its impact on various business transactions

3. Awareness: the process may be painful as the Polish case shows • Three groups of MPs challenged the Accession Treaty in 2003 • A wide range of accusations that the Accession Treaty does not comply with the Polish Constitution (such as the dynamic nature of the development of EU legislation, loss of sovereignty, undermining the judiciary’s independence) • Pro-European ruling by the Polish Constitutional Tribunal

4. Incorporating the acquis • Visible part : incorporating harmonisation directives • Less visible : directly applicable EU law • Invisible : general principles, ECJ case law

5. Legal Framework: effective application • Legislative, Executive • at all levels : national, regional, local • Judiciary • Marleasing, Köbler • Art. 234 of the EC Treaty: right/obligation to refer to ECJ • interpretation • validity

6. Transitional provisions? • Limited in time and scope and with a specific timetable to apply the acquis • Candidate countries • strong national pressure (eg a limitation on land purchase in Poland) • phasing out state aid • The Union: fear for regional or sectoral disturbances (eg free movement of workers, protection of IP rights for pharmaceutical products)

7. State aid: accession arrangements • Relevant provisions of the Accession Treaty • On accession, a crucial definition is a definition of “existing aid”: • aid granted before [agreed with the Union] • aid on list appended to Accession Treaty • aid on list to be submitted to Commission before accession (involves national notification)

8. Accession arrangement: issues for clients • Implications of “existing aid” • no notification or suspension obligations • no risk of recovery • For beneficiaries and lenders: • ensure that possible state aid will be “existing” • otherwise a breach of suspension obligation after accession may lead to recovery orders from the Commission or national courts

9. Poland after five years, what has been accomplished as far as legal transformation is concerned? • Well trained and gifted judges that have no fear of referring preliminary questions to the European Court of Justice • Greater understanding of the acquis by governmental agencies (the Polish Competition Authority is an example of one which has undergone significant conceptual changes), while there is still room for improvement • Good understanding of relevant legal issues that have an impact on everyday business transactions by clients from various industries

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