Rules, democracy and the environment


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The evolution of rules for a single European market
Rules, democracy and the environment
Proceedings from the COST A7 workshop in Exeter, UK
8 to 11 September 1994
Edited by David G. Mayes
European Commission
Science, Research and Development
1995 Edited by
David G. MAYES
The evolution of rules for a single
European market
Part II
Rules, democracy and the environment
Proceedings from the COST A7 workshop in Exeter, UK
8 to 11 September 1994 Published by the
Directorate-General XII
Science, Research and Development
B-1049 Brussels
Neither the European Commission nor any person acting
on behalf of the Commission is responsible for the use which might be made of
the following information
Cataloguing data can be found at the end of this publication
Luxembourg: Office for Official Publications of the European Communities, 1995
ISBN 92-827-5293-3 (Part II)
ISBN 92-827-5291-7 (Parts I to III)
© ECSC-EC-EAEC, Brussels · Luxembourg, 1995
Reproduction is authorized, except for commercial purposes,
provided the source is acknowledged
Printed in Belgium Introduction
The papers in this and the two companion volumes draw together an edited selection of the
contributions to a conference on The Evolution of Rules for a Single European Market held
at the University of Exeter in the UK during 8-10th September, 1994. Some 120 papers
were presented in total and it has been necessary to reduce the number substantially for
publication. The conference was organised under the joint auspices of the UK Economic
and Social Research Council research programme on the European Single Market and the
COST A7 Action on The Evolution of Rules for a Singlen Market.
European integration has been the subject of a substantial amount of research in recent
years, ever since the programme to 'complete' the internal market was begun after the
Single Etiropean Act came into force in 1987. Although there had been considerable
interest in the European Commission's White Paper on the issue when it appeared in 1985.
It was not until action began to be taken that interest was properly fired.
Much of that interest has followed traditional academic paths, leading to papers dealing with
economic, social, political, legal and other aspects of the programme. The purpose of the
ESRC research programme and its wider COST companion were deliberately to focus on
a major area of weakness but potential value for research, namely analysis which runs
across the traditional divisions between academic subjects. The prime motivation for the
COST Action, however, was the finding that, even within each of the subject boundaries'
research tended to be conducted within a largely national framework. Since the whole point
of the enterprise was international integration it is only appropriate that the research
involved should also be firmly international and collaborative.
The result therefore is a set of articles viewing a common problem from a wide variety of
different angles both in terms of discipline and cultural background. This diversity provides
a much greater understanding of the problem.
The analysis follows a common theme, characterising the process of 'completion' of the
single market as an evolution not a single step. Not only will it be some time in the next
century before some of the measures are implemented but behaviour in the member states
will take even longer to adjust. In framing the research programme we have broken that
evolutionary process up into eight stages. However, that process is further characterised
by the concept of rules. The White Paper was set out in the form of a list of some 300
measures that would have to be implemented to require enough harmonisation for a single
market to emerge. Some of this involved the traditional breaking down of barriers between
countries but a large portion of the measures were directed at non-tariff barriers and
measures which exist not to provide a source of deliberate discrimination but to define
standards and rules for the operation of domestic markets. Differences in a whole range
of simple characteristics such as labelling, product description, qualifications for
undertaking jobs etc can act as extremely efficient barriers to trade.
The eight stages therefore look at: how the rules are set and how their form is influenced;
how they are implemented; the conflicts between them and how in fact there is competition
among different rule systems; the impact of rules both on individual industries and on
society as a whole, the way the system is changing, determinantion of political Iegitmacy
of the process and finally its external impact. The first volume focuses on papers which consider these issues from the point of view of industries and of financial markets and
institutions. The second moves on to examine the social and international issues involved,
while the third considers the rules themselves, the democratic issues involving their
implementation and the broader environmental concerns.
It would be invidious to focus on only some of these articles and too lengthy to discuss
them all. Between them they provide a fascinating insight into a wide range of issues.
This is only the first major event in the publication of research on these issues. The
research itself continues. Although the original Co-ordinator of the ESRC research
programme and Chairman of the COST Action, David Mayes, has now moved on to be
responsible for monetary policy in New Zealand, he has been succeeded by Iain Begg, now
of the South Bank University in London. A further conference is planned for 1996 when
the ESRC programme ends and the COST Action will continue to hold meetings in the
participating states, which are Austria, Belgium, the Czech Republic, Denmark, Finland,
France, Germany, Hungary, Italy, the Irish Republic, Norway, the Netherlands, Sweden,
Switzerland and the UK.
We can be certain these discussions will continue and widen. Not only has the process of
integration in Europe developed out of all recognition since the project was conceived, with
the decision to progress to economic and monetary union, the widening of the EU to
include Austria, Finland and Sweden but the agenda continues to expand with further states
wishing to join and new political and social issues joining the agenda for common
treatment. From a personal point of view it was a priviledge to involved in such an
exciting and path breaking enterprise. The publication of these articles is intended to open
up a continuing dialogue and stimulate further research. I do therefore urge readers to
contact authors and to seek to participate in both the ESRC and COST activities, which 1
personally found extremely valuable.
David G Mayes
Reserve Bank of New Zealand
Ρ O Box 2498, Wellington CONTENTS
Rules to Enforce the Rules: Subsidiarity v. Uniformity in the Implementation of the Single
European Market Policy Christine Hoch(Edinburgh University)
EC Tax Harmonisation: Trade Diversion by Changing the Rules? Bernhard Seidel (DIW
The Process and Problems of Implementation of EU Regulations in the Netherlands V J J M
Bekkers. JA Bonnes. A de Moor-Van Vugt and V/ Voemians (Tilburg University)
The Single European Market and Strategic Export Controls Trevor Taylor and Patti Cornish
(Staffordshire University. Royal Institute for International Affairs)
Barriers to the Free Movement of Goods in the Single European Market Diane Rowland
(University of Wales)
Statistical Peformance Indicators for Keeping Watch over Public Procurement Dimitri Mordas
(University of Tliessalonikj)
The Impact of the Public Procurement Directives on EU Contract Awards in 1993 Andrew
Cox and Paul Furlong (University of Binningham)
European Community Law and the Redistribution of Regulatory Power in the United
Kingdom Terence Dainltth (Institute of Advanced Legal Studies. London)
Representing Interests in the European Union: the Contribution of Case Study Methods Justin
Greenwood (Aberdeen University)
The Single European Market and European Union Citizenship Paul Close (Derby University)
Discussion and Social Dilemmas in Democracy an Experimental Approach Iris Bolinet and
Bruno S Frey (University of Zurich)
Some Reflections on the Process of Constirutionalisaüon in die European Union - Fundmental
Norms of Community Law and the Role of the Court of Justice Nanette Neirwahl (Leicester
Europe's Institutional Morass - Can the Union Escape? Stanley Henig (University of Central
Is Economic and Monetary Union in Europe Possible without Political Union? Hugh Atkinson
(Southbank University)
Rules for the Single Market in a Green Europe of the Regions or Reducing Regional
Inequality on the Cheap Andrew Tylecole (Sheffield University)
Environmental Standard Setting and the Single Furopean Market: Southern Europe as a Special Case Michelle Cini, Martin Porter and Geoffrey Pridham (Bristol University)
Some Public Interest and Private Interest Aspects of Environmental Standard Setting in the
European Community Michael Faure and Juergen Lefevere (METRO, University of Limburg) RULES TO ENFORCE THE RULES: SUBSIDIARITY v. UNIFORMITY IN THE
Christine Boch
This paper will demonstrate how the logic and dynamics of the Community legal system calls
for uniform rules and therefore always requires more rules to make previous rules work.
Further, it will argue that whilst uniform rules and uniformity in the implementation,
application and enforcement of the rules might be desirable from an efficiency perspective,
the adoption of such rules in the post-Maastricht era might prove increasingly politically
difficult. Therefore, the European Court of Justice - the main law-maker in this area - will
have to continue bearing the main burden of ensuring that Community rights are effectively
and uniformly protected. These developments in turn point to legitimacy problems which
will be explored. How much further can legal integration proceed in the absence of political
Preliminary remarks: This paper is concerned with how Community law, both Treaty rules
and legislation made under the Treaties, is observed in practice. However compliance does
not have a single meaning. First, it refers to the process by which legal obligations are
fulfilled; this process sometimes referred to as "black letter implementation", i.e. transposition
of Community legislation into national legislation, (process which concerns Directives
mostly). Secondly it refers to the methods available to ensure effective application of of
Community law, and effective protection of the rights so created; this process is sometimes
known as implementation in practice. Black letter implementation and implementation in
practice might occasionally be linked. However, they constitute quite different processes.
This paper focuses on implementation in practice issues. A selection has further been made
from the various problems arising out of practical recourse to Community law. This paper
will take as a starting point the question of enforcement ofy law by national and
Community courts. In this context, rules to enforce rules refers to adjective rules (be they
in the form of norms, principles, provisions) by which substantive rules (here limited to rules
embodying a Community right) are put into operation. In the Community legal
system/order, enforcement of Community norms is largely the responsibility of national courts
which, ur.der the guidance of the European Court, apply national rules of procedure and
provide national remedies. For a long time, assessment of effectiveness of Community law
was not high on the Community agenda. With the notable exception of the European Court
of Justice, a rather low priority was accorded to examining practical recourse to Community
law. However, in the last ten years a new willingness to address issues of observance and
compliance has emerged. At the same time Community competences and the exercise of
Community competences have come under revived attacks. Can subsidiarity allow for
divergent interpretation and enforcement mechanisms of Community law7
"The benefits of the internal market will not flow unless its rules are applied
effectively and consistently throughout the Community."
At the same time it is important that in this market, local, regional and national diversity be
"The acceptance of such diversity is politically and culturally important to Europe, but 2.
it risks being in conflict with the effective operation of an internal market "
"The success of the internal market will be underpinned by setting a clear objective:
to make Community law understood and enforced in the same way as purely national
law...The rules of the internal market must have equivalent effect throughout the
The need for effective and uniform application of Community rules acknowleged in the
Sutherland Report is not novel2. The European Court of Justice laid down the prerequisites
for effectiveness and uniform application some thirty years ago by establishing the principles
of Direct Effect and Primacy 3 . In fact, effectiveness and uniform application constitute the
very essence of Community law, the pillars of the Community legal system. However,
against this background, what is striking are the revived calls for "managed diversity" 4, the
departure from the established orthodoxy of uniform application, the various attacks and "mise
à l'écart" of the quasi-ideological stance ofm application and enforcements It appears
odd that, after years of maturation, the Community legal system's basic foundations are still
under such threat. The logic and dynamics at work in the Community will be re-explored
with a view to reflecting on whether the Community legal system can afford to sacrifice
uniformity and effectiveness on the altar of diversity6 .
Making Community rules operative: An old story.
In the original Treaty, few rules7 were devoted to issues of application and enforcement of
rules. From the outset, a central role was played by unwritten rules and by the European
Court of Justice which developed the principles of Direct Effect and Primacy. Direct Effect
and Primacy are not just principles created to defend the Community Legal Order, they are
rules about enforcement. Direct Effect and Primacy are adjective rules laid down to facilitate
enforcement of Community substantive rules 8. Further, Direct Effect and Primacy are
concerned with effectiveness as a synonym for uniform interpretation and application9. In
other words, from the very beginning, it was recognised, at least by the European Court of
Justice, that rules to enforce rules were needed for the process of integration to take place.
It is widely accepted that the characteristic feature of the Community system is its
decentralised structures and mechanisms for the monitoring of the implementation, application
and enforcement of rules. The Community system is largely '° in the hands of national
authorities: administrations and courts. In legal terms this translates as the principle of
Institutional Autonomy. Throughout the Community, Community rights are guaranteed by
means of the different existing national procedures and remedies". It is also well-known that
this principle has in-built limitations; these national rules afford no or varying degrees of
protection to the same Community rights. In other words this conception of a decentralised
system of implementation, application and enforcement of Community rules carries with it
an inherent drawback: the risk of divergence (if not non operation)12 . Whilst through the
principle of institutional autonomy, respect of the integrity and diversity of the national legal
systems is guaranteed", uniformity of application and enforcement of Community rights is