Harmonisation Flashcards
What is the art? Which three cases are crucial to talk about in reaction to harmonisation?
Art 114
Dassonville, cassis, Keck.
What are the 4 key principles involved in harmonisation? Expand.
Decentralisation, incrementalism, political responses, deregulatory overtones.
Decentralisation - nat courts to decide if mandatory reqs can save the measure (e.g. Familapress cf. Mars, re beer cans, cinetheque)
Incrementalism - evolving set of principles, competence creep.
Political responses - cassis rendered at a time of crisis and stagnation (in shadow of the lux compromise) so gave the courts more power to get things done. Filling in the gap, increased efficacy of EU.
Deregulatory overtones - cassis mutual recognition passport for goods, so once accepted effectively deregulated, national legislation must not crystallise consumer habits.
What are the 2 problems with harmonisation?
Paradoxes and limits
Paradoxes - AG Jacobs highlighted this in Siplec - inconsistency, e.g. Sunday trading cases - the national courts were allowed to reach different conclusions.
Limits
Art 36, mandatory reqs, Keck conditions.
Talk about NEGATIVE harmonisation here.
What does negative harmonisation mean? Whay is it a good thing?
Positive harmonisation = pick one rule and apply everywhere.
Negative harmonisation = keep all the rules, but just disapply the overlapping ones where the product has already complied with one set (cassis principle of mutual recognition).
Leads to less unfairness, and the retention of rules, so increases state autonomy.
Negative harmonisation is also good since it doesn’t lead to market fragmentation.
Can the EU positively harmonise if it wants to?
Yes. Art 115, but need unanimity - this is what led to stagnation in the 60s and 70s. This is what Cassis was rendered to combat.
Principle of mutual recognition sidesteps the problem.
Art 114 was introduced in the Single European Act 1987 to give the union more competence to act. Requires a majority vote, not unanimity.
Tobacco cases on harmonisation?
What two key things must you remember in relation to this?
Tobacco advertising case 2000 - led to annulment of 1998 directive.
Directive banned tobacco advertising and sponsorship, was almost a complete ban. Germany challenged and won since the union didn’t have the competence for this action.
Art 114 is not a general power to do regulate the market!
It is there to establish real market and improve its functions. Idea = REMOVE OBSTACLES (future or actual) to achieve this.
There must be distortions present for Art 114 to be invoked for their removal, otherwise the union would have unlimited competence to act!
Two key things:
Art 114 about REMOVING obstacles to trade
Principle of CONFERRAL (part of principle of subsidiarity) is key - union’s power can’t be unlimited in scope.
Swedish Match
Banned snoos - court said ban was ok (said some countries had already banned so it would be likely there would be restrictions on the functioning of the free market if they didn’t make the ban union-wide)
The court would only intervene where the measure is ‘manifestly inappropriate’
Criticism: banning advertising is an obstacle in itself (market access) so the court’s judgment isn’t very thorough or well thought-through.
See other flashcard pack for the three new cases (Philip Morris, Poland, Pillbox 38)
What is the new approach to harmonisation?
Pick the MIN requirement, rather than making very comprehensive directives and then let MSs add their own stricter rules on top of this base level if they want to. Give MSs choice (some autonomy) over the level they want to achieve.
Philip Morris challenged this idea - AG rejected the reference question on the basis the directive hadn’t been implemented yet, nor had the MSs implemented their rules, so couldn’t challenge a hypothetical set of rules!
2014 directive - problem with lack of agreement over the best approach, should the level they’ve picked (banning menthols and heavy regulation on ecigs) really the minimum requirement?
The authorities are conflicted on e-cigs.
Cassis = the old harmonisation approach (mutual recognition, negative harmonisation)
Who thinks a wider definition of democracy should be adopted? What else do they think?
Why is their view of limited use?
Menon and Weatherill
About input and output legitimacy.
Atm have quite a skewed understanding of democracy in the EU. a big producer can pick the most lenient market to comply in (mutual recognition), so the pendulum swings to producer-focus. This isn’t a democratic benefit.
Should adopt a wider definition of democracy to measure the EU against other comparable international bodies, like WTO or the UN. Hold it to account at a different level.
It is not a transnational state but a transnational process, so need to think about transnational forms of democracy and transnational governance.
EU empowers and restricts MSs at the same time. Not challenging their existence, but establishing structures that restrain their corruptive capacity to inflict harm.
Majone and Scharpf: Menon and Wearherill’s view is of somewhat limited use now since they were writing in 2001- only 15 MSs and pre-crash, so easier to see how they reached these conclusions.
Now there is a greater need to readdress the issues of democratic legitimacy and competence due to the union’s increased size, power and scope.
Need SOME input legitimacy to underpin many areas of policy, the EU currently lacks this.
Circumloquacious statement of result. Go.
Weatherill - court sometimes gives a circumloquacious statement of result rather than its reasons for arriving at it. A pragmatic solution to a practical problem.
Hence have negative harmonisation and art 114. Afford’s the EU some flexibility to achieve a broader, overarching concept of the internal market.
