Harmonisation lectures
Lecture 1 Introduction & General Overview of the Harmonisation Phenomenon in the EU
General aspect of harmonisation and how it helps integrating the internal market.
The starting point is economic integration of the internal market within the EU. Nowadays
we go beyond this and focus on other aspect. First it was ensuring the proper functioning of
the internal market on an economic point of view. There are two techniques
- Negative integration: e.g. art 34 TFEU that prohibits quantative restrictions and
measures having equivalent effect. NI functions to the effect that MS are not allowed
to raise obstacles when it comes to the free movement of goods. The rationale is also
applied to the FMs. So MS are obliged to refrain from taken measures that obstruct
the FM.
- Positive integration: relates to setting EU standards. So, by adopting acts at EU level,
the EU will set specific standers that should be uniform at EU level. MS should act.
So, Duties for the MS to comply with a specific EU standard. How is this done in
practice? The EU institutions will usually adopt regulations or directives to set these
standards. Regulations are directly applicable and may not be transposed into
domestic legislation, the effect is not depending on the actions of the MS. Directives
however need to be implemented by the MS. The result of a directive is binding on
the MS but the choice, the form, methods of how to reach that result is left to the
MS. So the directive must be transposed and the EU standards relates to how the MS
will implement the directive. There are of course problems relating to this such as MS
are will not implement correcting or on time. The ECJ has a solution for this: the
concept of direct effect or consistent interpretation or indirect effect in order to
make sure that the EU standers will be applied. 288 TFEU you can find directives and
regulations. In order to adopt or implement these the MS need to have the correct
legal basis at hand.
Legal Basis: make sure that the directive or
• Choice of Legal Basis:
• Specific legal basis
• Generic Legal Basis:
• Dual Basis Possible? According to the ECJ the general rule is that you should
use one legal basis but specific situations dual basis is possible. When you
can’t really say which aim you want to achieve is primary and which one is
secondary you can use a dual basis.
• Substantive Content is what counts. It is not the fact that one gives a
friendlier procedural map. So, if one legal basis requires unanimity and the
other qualified majority, you shouldn’t choose the one that makes it easier to
adopt. you should focus on the substantive content: what is the goal you are
trying to achieve? Does the goal fit the correct legal basis? Eg. Directive
2014/104/EU based on art 103 and 114 TFEU (=generic legal basis relating to
the internal market).
• Art. 352 TFEU: generic legal basis. If there is no other legal basis, you can use this
article but unanimity is required! §3: no harmonisation measures can be taken based
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Lecture 1 Introduction & General Overview of the Harmonisation Phenomenon in the EU
General aspect of harmonisation and how it helps integrating the internal market.
The starting point is economic integration of the internal market within the EU. Nowadays
we go beyond this and focus on other aspect. First it was ensuring the proper functioning of
the internal market on an economic point of view. There are two techniques
- Negative integration: e.g. art 34 TFEU that prohibits quantative restrictions and
measures having equivalent effect. NI functions to the effect that MS are not allowed
to raise obstacles when it comes to the free movement of goods. The rationale is also
applied to the FMs. So MS are obliged to refrain from taken measures that obstruct
the FM.
- Positive integration: relates to setting EU standards. So, by adopting acts at EU level,
the EU will set specific standers that should be uniform at EU level. MS should act.
So, Duties for the MS to comply with a specific EU standard. How is this done in
practice? The EU institutions will usually adopt regulations or directives to set these
standards. Regulations are directly applicable and may not be transposed into
domestic legislation, the effect is not depending on the actions of the MS. Directives
however need to be implemented by the MS. The result of a directive is binding on
the MS but the choice, the form, methods of how to reach that result is left to the
MS. So the directive must be transposed and the EU standards relates to how the MS
will implement the directive. There are of course problems relating to this such as MS
are will not implement correcting or on time. The ECJ has a solution for this: the
concept of direct effect or consistent interpretation or indirect effect in order to
make sure that the EU standers will be applied. 288 TFEU you can find directives and
regulations. In order to adopt or implement these the MS need to have the correct
legal basis at hand.
Legal Basis: make sure that the directive or
• Choice of Legal Basis:
• Specific legal basis
• Generic Legal Basis:
• Dual Basis Possible? According to the ECJ the general rule is that you should
use one legal basis but specific situations dual basis is possible. When you
can’t really say which aim you want to achieve is primary and which one is
secondary you can use a dual basis.
• Substantive Content is what counts. It is not the fact that one gives a
friendlier procedural map. So, if one legal basis requires unanimity and the
other qualified majority, you shouldn’t choose the one that makes it easier to
adopt. you should focus on the substantive content: what is the goal you are
trying to achieve? Does the goal fit the correct legal basis? Eg. Directive
2014/104/EU based on art 103 and 114 TFEU (=generic legal basis relating to
the internal market).
• Art. 352 TFEU: generic legal basis. If there is no other legal basis, you can use this
article but unanimity is required! §3: no harmonisation measures can be taken based
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