Lectures 1-8 Harmonisation in the European Union
1
, Lecture 1 Introduction & General Overview of the Harmonization Phenomenon in the
EU
What does the EU do to harmonise specific fields in the internal market?
General aspect of harmonization and how it helps integrating the internal market.
The starting point is economic integration: proper functioning of the internal market
within the EU. How do you ensure that the internal market is integrated?
- Negative integration: MS are not allowed to raise obstacles when it comes to the free
movements.
I.e. 34 TFEU which prohibits QR and MEQRs when it comes to the free movement of goods.
So MS are obliged to refrain from taking measures to obstruct the FM.
- Positive integration: by adopting acts on EU level and setting uniform standards, this
creates duties for MS to comply with the EU standards.
How is this done in practice? The EU institutions adopts directives or regulations to set these
standards. These two legal instruments differ from each other as regulations are directly
applicable, binding in the MS and may not be transposed in national law. Directives need to
be implemented by the MS where the result to achieve is binding, but the choice, form and
method of how to reach that result is left to the MS. A directive needs to be transposed in
national law art 288 TFEU. To adopt directives and regulations, the EU institutions need to
have the correct legal basis.
When MS do not implement correct or on time, the CJEU has a solution for this: the concept
of direct effect and indirect effect in order to make sure that the EU standards will be
applied.
Legal basis: specific legal basis v generic legal basis
When you want to harmonize a certain field in the internal market, which legal basis can you
use and can you use two legal bases?
Dual legal basis possible? CJEU: the general rule is that you should use one legal basis,
but in specific situations a dual legal basis is possible. When you can’t really say which
aim you are protecting is primary and which one is secondary you can use a dual legal basis.
Procedural rules or substantive content? It is the substantive content what counts(goal/aim)
when you choose a legal basis, but you cannot just choose the legal basis that is easier to
adopt the directive or regulation. I.e. when one legal basis requires unanimity and the other
qualified majority you cannot just choose the procedure which includes qualified majority.
E.g. Directive 2014/104/EU based on art 103 and 114 TFEU (=general legal basis relating to
the internal market).
Special legislative procedure 352 TFEU: if you can’t use a legal basis then you can fall
back on the generic legal basis. The Council has to act unanimously to adopt harmonization
measures with the generic legal basis. However, no harmonization measures may be
adopted in the fields where the treaty exclude such harmonization.
Art. 114 TFEU: the use of 352 TFEU is marginal as 114 TFEU is more flexible to use for the
establishment and functioning of the internal market. You don’t need unanimity but only
qualified majority voting. It also has a wide choice of legal instruments as the article says
‘measures’ can be adopted.
Free Movement Clause v. Exclusivity Clause
Free Movement Clause: if goods comply with the standard in the directive, then MS
have to accept these goods into their market.
Exclusivity Clause: if goods do not comply with the standard in the directive, then MS
should prevent the access of these goods in their market.
Measures taken on the basis of 114 TFEU must lead to harmonization. Generally, it is used
for elimination of obstacles to the fundamental freedoms and removal of distortions of
2
1
, Lecture 1 Introduction & General Overview of the Harmonization Phenomenon in the
EU
What does the EU do to harmonise specific fields in the internal market?
General aspect of harmonization and how it helps integrating the internal market.
The starting point is economic integration: proper functioning of the internal market
within the EU. How do you ensure that the internal market is integrated?
- Negative integration: MS are not allowed to raise obstacles when it comes to the free
movements.
I.e. 34 TFEU which prohibits QR and MEQRs when it comes to the free movement of goods.
So MS are obliged to refrain from taking measures to obstruct the FM.
- Positive integration: by adopting acts on EU level and setting uniform standards, this
creates duties for MS to comply with the EU standards.
How is this done in practice? The EU institutions adopts directives or regulations to set these
standards. These two legal instruments differ from each other as regulations are directly
applicable, binding in the MS and may not be transposed in national law. Directives need to
be implemented by the MS where the result to achieve is binding, but the choice, form and
method of how to reach that result is left to the MS. A directive needs to be transposed in
national law art 288 TFEU. To adopt directives and regulations, the EU institutions need to
have the correct legal basis.
When MS do not implement correct or on time, the CJEU has a solution for this: the concept
of direct effect and indirect effect in order to make sure that the EU standards will be
applied.
Legal basis: specific legal basis v generic legal basis
When you want to harmonize a certain field in the internal market, which legal basis can you
use and can you use two legal bases?
Dual legal basis possible? CJEU: the general rule is that you should use one legal basis,
but in specific situations a dual legal basis is possible. When you can’t really say which
aim you are protecting is primary and which one is secondary you can use a dual legal basis.
Procedural rules or substantive content? It is the substantive content what counts(goal/aim)
when you choose a legal basis, but you cannot just choose the legal basis that is easier to
adopt the directive or regulation. I.e. when one legal basis requires unanimity and the other
qualified majority you cannot just choose the procedure which includes qualified majority.
E.g. Directive 2014/104/EU based on art 103 and 114 TFEU (=general legal basis relating to
the internal market).
Special legislative procedure 352 TFEU: if you can’t use a legal basis then you can fall
back on the generic legal basis. The Council has to act unanimously to adopt harmonization
measures with the generic legal basis. However, no harmonization measures may be
adopted in the fields where the treaty exclude such harmonization.
Art. 114 TFEU: the use of 352 TFEU is marginal as 114 TFEU is more flexible to use for the
establishment and functioning of the internal market. You don’t need unanimity but only
qualified majority voting. It also has a wide choice of legal instruments as the article says
‘measures’ can be adopted.
Free Movement Clause v. Exclusivity Clause
Free Movement Clause: if goods comply with the standard in the directive, then MS
have to accept these goods into their market.
Exclusivity Clause: if goods do not comply with the standard in the directive, then MS
should prevent the access of these goods in their market.
Measures taken on the basis of 114 TFEU must lead to harmonization. Generally, it is used
for elimination of obstacles to the fundamental freedoms and removal of distortions of
2
