The Integration of the European Community and Third States in Europe: A Legal Analysis

By Andrew H. Evans | Go to book overview

9
Conclusions

Trade liberalization provisions in the EC Treaty operate as elements in a general scheme to secure conditions of undistorted competition for extension of trading activity beyond the domestic market into the Community market. The liberalization requirements entailed by these provisions do much to secure reduction of trade obstacles. Together with other requirements embodied in the Treaty, they also facilitate harmonization. They do so by providing a legal framework for reconciliation of what might be seen as a conflict of objectives between a law harmonization policy oriented merely towards market integration as such and a legislative policy oriented towards the substantive quality of regulations, or between 'functional' harmonization designed to secure the establishment of the common market and 'substantive policy' harmonization.1

The existence of such a framework and the capacity of the judiciary to uphold and develop it have much greater significance for integration than might be suggested by analysis relying on the established doctrinal distinction between 'negative' and 'positive' integration.2 This distinction tends to treat liberalization and harmonization as separable processes. In practice under the EC Treaty the two processes may interact.3 When engaged in harmonization, the Community institutions must take account of liberalization requirements4 as well as other requirements embodied in this Treaty,5 and judicial control may be available to ensure that they do so.6

____________________
1
Cf. J. Falke and C. Joerges, ' Traditional' Harmonization Policy, European Consumer Protection Programmes and the New Approach ( European University Institute Working Paper, Law No. 91/13 Florence, 1991), 5. Cf., regarding 'facilitative' and 'protective' legislation, A. McGee and S. Weatherill, 'The Evolution of the Single Market -- Harmonization or Liberalization' ( 1990) 53 MLRev. 578-96.
2
See, e.g., Falke and Joerges, n. 1 above, 95.
3
There may be a 'structural set', involving 'the mutual convertibility of rules and resources in one domaine of action into those pertaining to another'. See A. Giddens, ' "A Reply to my Critics"' in D. Held and J. B. Thompson (eds.), Social Theory of Modern Societies: Anthony Giddens and His Critics ( Cambridge, 1989), 249-301, at 299.
4
In formal terms a blurring of the distinction between the respective fields of application of provisions such as Arts 57(1) and 59(1) EC may result. The former provides for the enactment of dirs for the mutual recognition of diplomas, so as to make it easier for persons to take up and pursue activities as self-employed persons. Art. 59(1) prohibits restrictions on freedom to provide services. See W.-H. Roth, ' "The European Economic Community's Law on Services: Harmonization"' ( 1988) 25 CMLRev. 35-94, at 57.
5
See, regarding those embodied in Art. 39 EC, Case 249/85 Alboko Margarinefabrik Maria von der Linde GmbH & Co. KG v. Bundesanstalt für Landwirtschaftliche Marktordnung [ 1987] ECR 2345, 2360.

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The Integration of the European Community and Third States in Europe: A Legal Analysis
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Contents vii
  • Abbreviations xvi
  • Tables xix
  • 1 - Introduction 1
  • Part 1 - Trade Liberalization and Other Requirements 9
  • 2 - Trade Liberalization Requirements 11
  • 3 - Requirements Other Than Those of Trade Liberalization 85
  • Part 2 - Harmonization 149
  • 4 - Administrative Harmonization: Competition Policy 151
  • 5 - Legislative Harmonization: the 'Four Freedoms' and Beyond 229
  • Part 3 - Institutional Involvement 267
  • 6 - Joint Decision-Making 269
  • 7 - Committee Work 320
  • 8 - Judicial Control 340
  • 9 - Conclusions 380
  • Bibliography 391
  • Index 411
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