Location, (Re) Location,
(Dis)Location: What Space for
Harmonization?
Seminar 3 – (Dis) Location
Kenneth Armstrong, University of
Cambridge
Dislocated Harmonization
• Dislocation as fragmentation:
– Differentiation
– Re-nationalisation
• Dislocation as contestation:
– Harmonization through litigation
– Harmonization as a target of litigation.
• Dislocation as informalisation:
– ‘blurring of authorship’
– Distancing from mechanisms of legitimation and
judicial review.
Differentiated Integration
• Multi-speed: options as
regards speed of
adaptation (e.g. Art 18
Employment Equality
Directive 2000/78).
• A la carte: Legislative optouts (e.g. UK opt out from
Chap IV of Fiscal
Frameworks Directive)
• Variable geometry:
enhanced cooperation
(e.g. ‘unitary patent’ or
financial transaction tax).
Re-nationalisation - GM
• Directive 2001/18 on
release of GMOs into
environment.
• National file handling
• EU-level authorization.
• Directive 2015/412
allows MS to exclude
territory from
authorization or postauthorization opt-out
Harmonization through litigation
• Post-legislative litigation as a mechanism to
enhance harmonization:
– Prescriptive rights-creating harmonization
instruments afford potential for enforcement that
itself supports credibility of MS commitments
(Chalmers & Chaves)
– Legislator may leave it to courts to fill in gaps in the
‘incomplete contracts’ of harmonized instruments and
aid their negotiation (eg concept of ‘disability’: C335/11 and C-337/11, Ring and Skouboe Werge).
• Low salience of role to enforce ‘patrol norms’ but
higher salience of ‘thickly evaluative’ norms.
Litigation of harmonization
• A dislocation of the political choice made in
harmonization and the judicial conception of
legality: a ‘value gap’ (Tridimas and Gari).
• Higher level of successful annulment actions
the greater perception of this gap.
• Key manifestations of dislocation:
– Competence, legal basis and procedural disputes
– Capacity to protect fundamental rights.
Competence, Legal Basis and
Procedural Disputes
• Challenges by Member States seeking to require use of
legal basis that preserves veto power in legislative
process:
– UK (Working Time Case C-84/94)
– Ireland (Data Retention Directive Case C-301/06).
• Challenges by institutions to preserve prerogatives and
influence:
– EP (Use of Council implementing directive to change
essential aspects of Plant Protection Directive and avoiding
consultation of EP: Case C-303/94)
– European Commission (Titanium Dioxide Case C-300/89)
Challenges by Private Plaintiffs to uses
of Article 114 TFEU
• Challenge by Germany in Tobacco Advertising
established conditions of legality of use of Art
114 TFEU.
• Subsequent clarification arose more from
challenges by socio-economic actors:
– BAT/Imperial Tobacco: use of Art 114 legitimate even
where earlier harmonization has removed certain
disparities.
– Swedish Match: Legitimate to harmonize to prevent
future disparities arising in laws of MS
– Alliance Natural Health/Nutri-Link: legitimate to
harmonise to prohibit as well as to authorize.
Protection of Fundamental Rights
• Challenges to compatibility of harmonized
instruments can go beyond the politics of
national and institutional power struggles.
• Judicial politics of assessing legality of measures
in light of fundamental rights (especially in postCharter age).
• Litigants likely to be diverse social, economic and
civil society actors – with access to resources –
with contestation around thickly evaluative
norms.
Data Retention Directive
• DRI: activist human rights
body chaired by law
lecturer.
• No actio popularis before
CJEU so litigation in
domestic courts.
• CJEU annuls Data
Retention Directive for
incompatibility with Arts
7 and 8 Charter.
• Highlights problem of
legal certainty in cases of
annulment of directives.
Post-Legislative Rule-Making
• Relocation of harmonization to
technical/expert forums.
• Dislocation from the normal structures of
legitimation and judicial review.
• Risks that formal harmonization becomes a
‘shell’ for informal harmonization by other
means and by other actors.
• Perversion or subversion of meaning of
legislative texts.
Post-Legislative Formal Rule-Making
• Post-Lisbon Rule-Making:
– Article 290 TFEU: Commission delegated rule-making
(but influenced by expert working groups).
– Article 291 TFEU: Commission/Council implementing
measures (subject to comitology).
• Blurring of authorship:
– ESMA and European Banking Authority draft technical
rules adopted by Commission as ‘delegated acts’.
– ‘fusion’ of national and EU administrations
(compound executive) in agencies/comitology
– ‘transgovernmental’ networks of regulators
interpretation/application of framework norms.
Informal Rule-Making: ‘Guidance’
• Wide variety of forms of
guidance.
• Voluntary but
compliance often
expected.
• Different ‘authors’: the
Commission, Agencies,
MSs or a mixture.
Toy Safety Guidance: Toy or Not???
YES
Toy Safety Guidance: Toy or Not???
NO
Toy Safety Guidance: Toy or Not???
NO
Ex ante and ex post control on postlegislative rule-making
• Extension of use of ex ante impact assessments
to formal delegated rule-making.
• Expanded capacity for non-privileged applicants
to challenge binding ‘regulatory acts’ post-Lisbon
(eg Microban case)
• But difficulties arise where non-binding
‘voluntary’ post-legislative guidance creates
expectations of compliance: ex ante problems of
participation and ex post problems of judicial
control.