European Law (2016/2017) Lecture 4

The 4th Lecture of the course European Law (2016/2017) Utrecht University

Lecture 4, European Law

Sybe De Vries: Harmonisation

This week we will discuss the subject of Harmonisation within the European Union. Firstly, we will discuss the concept of the harmonisation, the interaction of institutional and substantive development. Thirdly, we will discuss the legal basis of harmonisation measures, the consequences of harmonisation, techniques and finally the difference between harmonisation and primary European Law.

The concept of Harmonisation

The Article which is very important while discussing the subject of harmonisation, is Article 3(1) sub H EC. The article describes the harmonisation as follows: ‘’Approximation of the laws of the Member States’’. In addition, it is about harmonisation on the common market. The regulation of the market was taken over by the European Union, there is a shared market between the Member States and it is regulated by the European Union, because the Member States handed in their sovereignty.

The most important instrument to do harmonisation, is in the form of a Directive (article 288 TFEU). Harmonisation is possible through Directives.

There are also forms of harmonisation outside the framework of the Internal Market and shared market. This is the Area of Freedom, Security and Justice. This is discussed in the third lecture of this Course. If you have any trouble with the subject, review that lecture. The AFSJ is an economic integration and abolishment of internal borders. It protects asylum, immigration, cooperation in the field and civil and criminal affairs, such as police cooperation.

At this subject harmonisation is also possible.

Harmonisation is needed, because the European Union is trying to form unity. If in the multiple Member States there’s different regulations about everything, this will have consequences for the Member States. If someone commits a crime in Germany, but it’s not illegal in his Country of origin, this could lead to problems. It is necessary that the rules are the same in both countries. There would be one Union with more Member States, but with the same regulation. This will be good for the common market. That is why there is harmonisation. Until 1986 there had to be unanimity between the Member States to form regulations, this is no longer the case. Lots of development eventually lead to the Treaty of Maastricht in 1992, and the Treaty of Lisbon in 2009.

The principles of Harmonisation

At the harmonisation process of article 288 TFEU, a few principles should be considered important. Firstly, there is the principle of conferred powers (article 5 TEU), secondly the principle of subsidiarity (article 5(3) TEU), the principle of proportionality (Article 5(4) TEU). In addition, the European Union must be competent to form regulations. The European Union can have exclusive competences, or shared competences with the Member States. If the Member States are the best option to regulate according to the shared competences, the European Union should leave this to the Member States.

Also, the Member States and the European Union should always bear in mind the different protocols.

An important legal basis for the harmonisation is article 114 TFEU! This is the general legal basis. There are also specific legal bases, for example article 53 TFEU. Outside the framework of the Internal Market, there are lots of other legal bases, like specific Treaty Provisions and Directives.

Minimum harmonisation

When the European Union develops minimum-harmonisation, the Member States can go further in regulating certain subjects. The European Union forms a minimum, the Member States have to apply to this minimum, but they can go further. For example: if the European Union wants the Member States to punish murder with a minimum of 5 years, then the Member States have to fulfil to this minimum-punishment, but they can also demand a punishment of 8 years, or 10 years. It is just a minimum rule.

Primary European Law

The harmonisation must always be in line with the European Union Treaties and the Fundamental rights of the European Union. The primary European Law is very important and must not be set aside for the harmonisation rules.