Legal Harmonisation

Legal Harmonisation
“European Legislation and Selected Problems of Legislative Techniques”

Jorge Eduardo Barrios Campos Prof. Moritz Röttinger

Contents

Introduction Different ways to deal with harmonisation Mutual recognition and country of origin principle Maximum harmonisation Minimum harmonisation Comments from seminar
First commentator – Maria-Louisa Somers. Second commentator -Evangelia Pipergia.

1 2 3 6 8 10
10 10

Conclusions Bibliography

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Introduction
The single market is a defining component of European integration. To understand this process, it should be noted Europe had to endure a second catastrophe such as the Second World War (1939- 1945) to appreciate fully what rivalry based on nationalism meant for all the countries at that time.Albeit the Treaty of Paris of 1951only aimed to integrate and manage the common FrancoGerman production of coal and steel, which were the two main components in the production of arms. It was evident that the economic integration was the most successful way to unify the countries of western Europe. This was the thinking behind the Treaty of Rome in 1957. It aimed, inter alia, for a common market basedon the Spaak Report which gave a design for a single market in Western Europe. The three main elements of the latter report were: “(a) the establishment of normal standards of competition through the elimination of protective barriers; (b) the curtailing of state intervention and monopolistic conditions; and (c) measures to prevent distortions of competition, including the possible harmonisationof legislation at the European level” . 1 Hypothetically, these treaty provisions should have been enough to allow for an effective regulatory competition but unfortunately, the results were not as expected. This failure of the market together with derogations decreed by the treaty and the case law developed by the court of the European Union which established mandatory requirements, have impelledthe European Union institutions to harmonise legislation to assist the market to work properly. “Harmonisation in the European Union aims to create common standards across its internal market and achieve uniformity in the laws of Member States”. 2 From its early history, the European Community treaty has allowed for the creation of common community rules which have always been very extensive.Most of these rules enacted under articles 94 and 95 EC have the aim to harmonise national laws, being the majority of the cases by means of directives.

1

M. Cini, N. Pérez-Solórzano, Europen Union Politics (New York, Oxford University Press, 2010), 259 D. Giannoni, C. Frade, Researching Language and the Law: Textual Features and Translation Issues (Bern, Peter Lang, 2010), 135

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2 Thedefinition of a directive under Article 288 (Ex. Art. 249 TEC) provides that it “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. 3 These different provisions of community law which, inter alia, guarantee the abolition of all barriers to trade are sometimes cited as'positive' harmonisation, when new standards are introduced to Member States. On the contrary, a form of harmonisation which abolishes national laws with the aim of removing existing barriers, is sometimes cited as 'negative' harmonisation. It could be said at this point, that positive harmonisation may offer a number of advantages over negative harmonisation. Should we consider the modus operandi ofpositive and negative harmonisation, we will notice that the latter may cause a gap in national law once the European Court of Justice has found that the national law is not compatible with the treaty and cannot be justified . The European Court of Justice could nullify this national law but it could not create alternatives to substitute the breached national judgment.

Different ways to deal...