Cyprus Mail
Legal View Opinion

Why do we have to be so late?

European Commission

The deadline for transposing yet another EU directive has passed

Dr Louisa Borg Haviaras

Once again we are late with yet another European Union (EU) Directive, that of the 5th Anti-Money Laundering Directive (AMLD5) which is an update to the EU’s AML legal framework. First published in the Official Journal of the EU, it came into effect on July 9 2018.

As a deadline for Member States to transpose provisions into their national laws the set date was before January 10. For those who are not familiar with the term ‘directive’ it is important to say that an EU directive is an act of legislation that establishes a common goal for all EU Member States to adopt.

A period of time is given to each Member State so that they have the necessary flexibility to devise their own laws and frameworks on how to meet the goals of the directive. Failure to adhere to EU directives brings possible fines and other punitive measures. While the transposition deadline for this Directive elapsed Cyprus still has not met its requirements.

Last October the Commission sent a reasoned opinion to Cyprus for failing to transpose the directive into national law. To make matters worse, if Cyprus does not take action, the Commission may decide to refer the case to the Court of Justice of the EU. However, this may not be the only reasoned opinion that Cyprus will receive as the AMLD5 was followed in November 2018 by the 6th Anti-Money Laundering Directive (AMLD6) with a deadline to be transposed by December 3, 2020 at the latest, while it must be implemented by financial institutions by June 3, 2021.

This is not the first time Cyprus is failing to comply in time with its obligations under EU law.

The Directive 2009/50/EC (Blue Card Dir.) on the entry conditions and residence of Third Country Nationals for highly qualified employment purposes was implemented via National Law N41 (I) 2012 setting a legislative framework regulating the recruitment of HS migrants for the first time again with a considerable delay. EU Member States had to incorporate it into national law by June 19, 2011.

In an increasing global competition for talent, Cyprus has set the admission volumes on the basis of the Blue Card Directive to zero and does not grant any HS employment permits, taking into account the economic crisis, the fiscal adjustment imposed on the country in 2011 and the high unemployment levels in Cyprus during that time.

As a result there have been no practical arrangements as of today, with regards to the issuance/statistical info of EU Blue Cards. In addition very little research exists on the subject of HS migration in Cyprus with the notable exception of a study on HS Indian migrants in the country in 2013. Regarding Directive 2003/109/EC concerning the Third Country Nationals’ status who are Long Term Residents this, was implemented via National Law N8 (I) 2007.

Following a Commission’s warning letter to Cyprus, the fees for issuing and renewing Long Term Residence permits were reduced, as well as the number of documents requested for renewal. The restrictive reading of the Directive’s provisions and the reasoning of the case of Cresencia Cabotaje Motilla v. Republic of Cyprus through the Interior Minister and the Chief Immigration Officer, Supreme Court Case No. 673/2006 (January 21, 2008) resulted in the rejection of many Long Term Residence applications until following pressure from the EU Commission the national legislator amended the law in 2009.

The question to be asked is why do we have to be late? The effective enforcement of EU law greatly affects EU citizens as it upholds the rights and benefits that they derive from EU law, which otherwise they would be denied. It also affects businesses in order to ensure harmonisation across the internal market. In its Annual Report on Monitoring the Application of EU Law in 2019 and the performance of Member States in various policy areas, Cyprus together with Bulgaria Belgium and Greece had the highest number of new cases opened against them concerning late transposition cases. For citizens and businesses to reap the benefits of EU law, it is crucial that Member States transpose EU Directives into national legal order within the agreed deadlines. It is high time we stopped demonstrating inefficiencies and delays.

 

n Dr Louisa Borg Haviaras is PhD Oxford Brookes University

 

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