lecture 2 Flashcards
(26 cards)
The ‘New Approach’
= an instrument (EU directive) which lays out general requirements
- Private parties will set out the rules which will apply - that word out the general requirements of this directive
- e.g. toys should be safe, no harm, not too small, but this depends on the age of the child etc ➞ so you use other substances for different instances
➞ think of NGO’s, and all other actors which also play a role. You have checks and balances to see that it doesn’t go too far. But if it isn’t enough, the EU will higher the standards which the private parties will have to implement.
- Goods which comply with these rules enjoy the presumtion of conformity ➞ so private parties can also decide to deviate from the private rules.
- CEN & CENELEC ➞ if they don’t comply with this, then the burden of proof is reversed and must show how they do still comply with the internal rules…
sign for uniformity of EU law. Then it complies with a private standard (CE)
Implementation stages
1)Transposition
2)Embedment/operationalisation
3)Application
4)Enforcement
This was seen as the most important way of integration (in the golden age), but are there other methods of integration???
➞ how do you bring MS together without those techniques
New modes of harmonisation
There are hard forms and soft forms of governance
- Soft rules aren’t always obligatory. Sometimes they gain it over time (= non-regulatory harmonization)
The idea that we need other modes of governance, has been pushed in certain sectors (for e.g. in environmental policies)
The open method of coordination
2000 Lisbon Summit Conclusions, §37
It was formalized as a technique that the EU would use more often
In the 2000s, they decides that they could use a soft method: MS gather together, look at the objectives, don’t make them compulsory, but they DO establish benchmarks ➞ ways of looking at how MS apply them. The commission then astablished reports, and since MS want to show that they are doing well, it is more likely that they will go after those objectives
- e.g. the Bologna Proces (= non-regulatory)
the Bologna Proces
open method of coordination
harmonising studies at university levels. The idea of this process was to allow for a full student mobility. Some countries would require more years of studying. And so the process said that the bachelor takes 3 years, and a masters usually takes 2 years etc
Enhanced cooperation
open method of coordination
Tool that has been recognized in the Lisbon treaty. Art 326-334 TFEU
- This is a method which is compulsory, but not for everyone.
- Once a proposal has been submitted, the council will discuss or try to find an agreement, and in some cases not all MS agree. In that case the council can decide that the negotations aren’t going anywhere, so they can chance the mode of cooperation
- To do so, you need at least 9 MS which want to continue together. Those MS will adopt an instrument which becomes the enhanced cooperation.
Other MS can later go into the system as well ➞ at the moment it has always resulted into a regulation, could also result into a directive. Has to be one of these, because you want it to be compulsory, so you don’t really want it to be another way.
Non-regulatory EU harmonisation policies
There are also a lot of other modes which have been used.
e.g. common agricultural policy ➞ made sure that we don’t need import to make sure we would get our own bread. It has cost a lot
- funds: ➞ there are also cohesion funds (that one country puts money out, so that the other countries can improve). That also improves their own countries in ways
When should new modes of governance be used?
- Sensitive policy areas ➞ when the costs are too high
- EU has support/coordination comptence
- Subsidiarity is key ➞ if they haven’t met this criteria
Beyond EU borders: the Brussels effect
This is about the fact that the EU will adopt instruments that apply to millions of citizens. So those citizens are also consumers. When the EU adopts regulation, the EU usully applies stringent and strict standards. This has the power to influence what businesses are doing abroad.
- = a de-facto effect. They can even lobby for other countries (outside of the EU) to implement the EU standards
- With the current dinamics (especially within the EU), we see that the Brussel effects have been weakened. Trump wants to impose its OWN standards, so today we need to be more cautious.
- We can also see insstances where the effect has been TOO strong
When we talk about harmonisation, we should also think about the external dimention of it.
scheme on the concept of mutual recognition
1.Harmonisation?
2. If not: free movemetn and restriction of market access?
3. If so: exceptions (TFEU and the rule of reason)
Proportionality
➞ the court of justice wants to balance unity and justice ➞ some MS may want to have different rules
Mutual recognition background
there is a dual burden
You only need to apply the homestates rules
a. Compare home & host state regulations ➞ In the case of casis de dijon, we could have expected the court to compare, and see if they are equivalent. Only based on this we could see if it was justified
b. Hoste state regulations necessary?
However, there is a loss of sovereignty
- Host states can still impose rules whith additional requirements. There are some treaty exeptions which allow MS to refuse recognistion, but there is also the rule of reason.
mutual recognition models
- Regulatory compliance / host state control
- Home state control
- Harmonisation of regulatory requirements ➞ this is what the EU mostly does, it sets a level playing field
mutual recognition developments
+ cases
➞ over time there have been many. Initually it was mostly applied to goods, but over time also to services - cases to showcase this:
a. Vlassopoulou case ➞ Greek lawyer who tried to open an office in Germany, but had a lot of requirements and not easy to become a laywer there. They looked at the freedom of establishment and services of people. The court looked if the rules which blocked were justified or not. The court said that the German methods ARE a barrior, but is it justified? Court says YES, consumers need to be well protected and need to be sure that they get a good service with quality. The expertise Greek and German weren’t the same
b. Gebhard case ➞ same tests etc and proportionality, and said that it was necessary to compare the German vs Italian legisaltion.
Mutual recognition harmonization methods
MR ➞ country of origin principle
- MR comes from the treaty, but in e.g. minimum harmonisation there was a country of orgin clause. When you include this, it becomes this
There are other ways:
- Single licence principle: when you get a license in the EU, you can operate everywhere within the EU
- Harmonisaed set of substantive rules: to avoid decreasing the level of protection ➞ new rules etc. this also includes MR
- MR can be justified by rule of reason or treaty. But country of origin principle usually doesn’t have expection, expect if the directive provides this.
Evolution of MR into the EU directves on professtional qualifications
Professtional qualifications: the rules
There are some rules, sometimes vertical or horizontal, and sometimes there is no EU legisalation at all.
- No EU legislation? = apply the Vlassopoulou test
- If there is legislation, you must check if there is specific legislation for a certain area
- vertical or horizontal approach
professtional qualifications: vertical appraoch
= specific legislation
Sector-specific directives
Advantage = legal certainty
Disadvantages =
* Difficult to reach agreement
* Limited scope directives
professtional qualifications: horizontal approach
= a series of sectors for which there isn’t a specific set of rules, but a general set of rules
- general-system directives
Advantages
* Flexible system covering large variety professions
* No need to reach political agreement on diploma
requirements
Disadvantages
* Lack legal certainty
* Complicated administrative procedures
Current situation: professtional qualifications
Directive 2005/36 on the recognition of professional
qualifications (RPQ) applies:
* to specific professionals
* nurses, midwifes, doctors, dental practitioners, pharmacists, architects and veterinary surgeons
* in general to other regulated professions
Separate directives for:
* sailors, statutory auditors, insurance intermediaries, aircraft controllers, some professions in transport or those linked to activities involving toxic products, lawyers & commercial agents
RPQ Directive: Purpose
establishes rules according to which a [MS] … shall recognise professional qualifications obtained in one or more other [MSs] … and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession
article 1
RPQ Directive: Structure
Free movement of services
– temporary (Title II)
Freedom of establishment
– permanent (Title III)
RPQ Directive: Services
- No recognition procedure in host MS
- Provision of services under the home state titles
- Host MS can impose administrative requirements
RPQ Directive: Establishment
- General system for the recognition of professional qualifications
- Specific system of automatic recognition…
- … attested by professional experience
- … of qualifications for specific professions RPQ Directive: Establishment
Technical Standardization
The concept of standardization in the EU
Directive 98/34/EC
Regulation 764/2008
Harmonized technical standard
CEN/CENELEC = two main standard orginzations
- CEN = all sectors (so more general)
- CENELEC = everything for electronics
