Location, (Re) Location,
(Dis)Location: What Space for
Harmonization?
Seminar 2 – (Re)location – Harmonization in
Multi-Level, Multi-Modal Space
Kenneth Armstrong, University of
Cambridge
Harmonization –Relational Dimensions
• Related to time: temporal quality of
harmonization.
• Multi-level rulemaking: what scope is and
ought there to be for domestic rule-making
alongside harmonization?
• Multi-modal governance: harmonization as
one mode of governance among others
Temporal Dimension
• Harmonization is a process more than an event:
– gradual harmonization over time may increase EU
level authority while decreasing national autonomy.
– -ve and +ve integration often co-exist to achieve
market integration: e.g. taxation of alcohol.
• Temporal derogations:
– Article 4(6) Directive 2002/46 on food supplements:
allowed marketing of supplements already on the
market (and not complying with directive) till 2009.
From 2010 only minerals and vitamins listed in Annex
can be placed on EU market.
Multi-Level Harmonization
• Anxieties about harmonization often revolve
around loss of national identity and national
political authority.
• Within EU: minimum harmonization versus
total harmonzation.
• EU as importer/exporter of norms and
standards.
Total/Exhaustive Harmonzation
• Anxiety at its highest where EU pursues total or exhaustive
harmonization. MS lose capacity to invoke treaty
derogations to protect public interests.
• Classic examples of exhaustive harmonization:
– CAP – Case C-1/96 MAFF ex parte Compassion in World
Farming; Case 10/79 Toffoli v Regione Veneto.
– Motor vehicles: Case 60/86 ‘Dim-Dip’
• Express legislative provision Reg 1333/2008 (food
additives):
Art 4: “Only food additives contained in the Community list in
Annex II may be placed on the market …”
Art 5: “No person shall place a food on the market … if the food
additive does not comply with this Regulation.”
Total Harmonization: an outdated
approach?
• Easy to think of exhaustive harmonization as
belonging to another time.
• But even New Approach directives give rise to
total harmonization across families of
products.
• And total harmonization can arise even in
newer areas where EU competence is often
closely circumscribed – consumer protection.
Case Study I – New Approach
• Introduced in 1985 to support internal market programme
goal of eliminating technical barriers to trade.
• Reference to standards:
– EU legislator enacts harmonized rules reflecting public
interests goals
– harmonized standards developed by industry provide
technical means of compliance
– Compliance with standards is voluntary but directives
themselves are total harmonization instruments.
• ‘Meta-Harmonization’: Decision 768/2008 aims to remove
disparities in terminology and effects across New Approach
directives (helping correct application of CE mark).
Case Study II – Unfair Commercial
Practices Directive
• All practices listed in Annex are unfair and
prohibited in all circumstances.
• Other measures potentially unfair but require
case-by-case assessment: bans other than for
activities in Annex do not permit such assessment
and prohbited: Cases C-261/07, C-299/07, VTBVAB v Total.
• Art 4: temporal protection to national stricter
rules till end of 2013.
• Article 3(9): minimum harmonization for financial
services: Case C-265/12 Citroën Belux
Minimum Harmonization
• Not the same thing as ‘partial’ harmonization.
• Refers to competence of MS to enact more
stringent rules in areas subject to
harmonization.
• Capacity to enact stricter rules:
– Provision in treaties (expressly constitutionally
permitted diversity)
– Legislative enactment seeks to preserve
regulatory autonomy for MS.
Constitutionally Permitted Diversity
• Consumer protection:
– Directives like UCPD can be enacted under Article 114
TFEU and produce total harmonization.
– But measures under Article 169(3) TFEU to support,
supplement consumer protection policies of MS allow MS
to maintain/introduce more stringent measures.
• Environmental protection:
– Again can be pursued under Article 114 TFEU where
measures removes obstacles to trade/distortions to
competition.
– But Article 193 TFEU permits MS to adopt more stringent
measures than those adopted under Article 192 TFEU.
Minimum Harmonization: Multi-Modal
Governance
• Measures with no principal market integration
aim can allow for national diversity.
• But diverse national rules on
consumer/environmental regulation can inhibit
market integration.
• So stricter rules must themselves be compatible
with free movement principles (judicial reviewas
a limit to diversity arising from minimal
harmonization)
• Combination of +ve and –ve integration.
Case C-169/89 Gourmetterie
• Art 14 Birds Directive
1979
• Red grouse hunted and
killed in UK lawfully.
• Dutch authorities no
capacity to invoke more
stringent protection when
bird not native to NL and
lawfully hunted in UK.
• Essentially allowed free
movement of a dead
game bird.
Minimum Harmonization and Internal
Market Measures
• In areas of market regulation minimum
harmonization but subject to compatibility
with internal market rules.
• So, can internal market rules allow for
minimum harmonization?
– Treaty-based authorization to enact stricter rules
(Articles 114(4)-(6) TFEU)
– Express legislative provision.
Articles 114(4)-(6) TFEU
• If, after the adoption of a harmonisation measure … a
Member State deems it necessary to maintain national
provisions on grounds of major needs referred to in Article
36, or relating to the protection of the environment or the
working environment, it shall notify the Commission …
• …if, after the adoption of a harmonisation measure … a
Member State deems it necessary to introduce national
provisions based on new scientific evidence relating to the
protection of the environment or the working environment
on grounds of a problem specific to that Member State
arising after the adoption of the harmonisation measure, it
shall notify the Commission …
• Within 6 months, the Commission decides whether to
authorize national rule
Market integration/market regulation
• Obvious that Article 114 measures not only seek
to integrate markets but to regulate them.
• MS’s may hold different views on risk and how
high level of protection should be. MS must seek
to justify its assessment including challenge
scientific risk assessment at EU level.
• If authorized, stricter rules apply to all goods on
national market whether domestic or imported.
Legislative Minimum Harmonization
• Does the EU legislature have discretion to authorize
stricter rules while basing harmonization on Article 114
TFEU?
• Post-Tobacco Advertising: to be lawfully based on
Article 114 TFEU must have the object of genuinely
improving the operation of the internal market by
removing barriers to trade/distortions to competition.
• Minimum harmonization implies a failure to remove
barriers/distortions.
• Case C-11/92, Gallaher: stricter rules subject to a free
movement requirement – stricter standard can only
apply to domestic producers.
Case Study: Tobacco Products Directive
2014
• Article 24: MS may maintain or introduce
‘further requirements applicable to all
products placed on its market’ including
standardisation of packaging’.
• No explicit authorization procedure but
Commission to be notified.
• Case C-547/14 Philip Morris challenge to use
of Article 114 TFEU as a legal basis for this
provision.
Mutual Recognition
• Vertical dimension: as a potential limit on, and
alternative to, harmonization.
• Horizontal dimension: in absence of
harmonization, as a means of allocating
regulatory responsibiity between Member
States.
• External dimension: managing market access
despite normative diversity between EU and
non-EU states.
Vertical Dimension
• Co-existence rather than rivalry.
• EU instruments can mandate mutual recognition:
– Mutual recognition of professional qualifications
– Mutual recognition of chemical authorizations.
• MR may operate against backdrop of harmonized
rules: eg recognition of testing and certification
or banking authorization.
• Gap-filling: where partial harmonization creates
space for MR to fill.
Horizontal Dimension: Coordination or
Competition
• In absence of harmonization MS remain
competent to control market access and to
regulate local markets.
• MR as a coordination device.
• Strongest version: norms of state of origin
exported to state of import (country of origin
principle):
– Extraterritorial effects
– Risks of regulatory competition
– Common EU ‘floor’ standards to limit effects (Deakin
‘reflexive harmonization’)
MR: Coordination as Cooperation
• Softest version is MR as a due process
requirement: an obligation to take regulatory
history into account.
• Strengthened version is a demand to treat
rules as functionally equivalent to local
standards to avoid duplication of controls.
• Often linked to processes of
administrative/regulatory cooperation and
emergence of networks to enhance trust.
External Dimension
• Mutual Recognition Agreements as part of the
repertoire of tools to promote market access.
• Focus less on substantive equivalence and more
on recognition of ‘conformity assessment’.
• Strong sectoral dimension e.g. pharmaceuticals
production (US, EU and Japan cooperate on
harmonized production standards).
• Development of more substantive MR part of
TTIP negotiations esp on motor vehicles.
Differentiated Integration
• Multi-speed: where MS have options as
regards speed of adaptation (e.g. Art 18
Employment Equality Directive 2000/78).
• Legislative opt-outs (e.g. UK opt out from
Chap IV of Fiscal Frameworks Directive)
• Enhanced cooperation: harmonization
restricted to a group of states (e.g. ‘unitary
patent’ or financial transaction tax).