The Law and Policy of Harmonisation in Europe’s Internal Market

The Law and Policy of Harmonisation in Europe’s Internal Market

Isidora Maletić

This innovative book explores the constitutional compromise between the European Union’s legislative competence and member states’ regulatory autonomy, and analyses the reconciliation of economic integration and welfare protection within the European internal market. It does so through the original lens of article 114 TFEU, the law-making clause underlying the European harmonisation process.

Chapter 3: Regulatory differentiation in the internal market

Isidora Maletić

Subjects: law - academic, european law, politics and public policy, european politics and policy


Article 114 TFEU, empowering the EU to adopt measures for the establishment and functioning of the internal market, indubitably represents one the most prominent tools for the legislative advancement of economic integration within the European regime. However, as has been seen in Chapter 2, despite the unequivocal emphasis on commercial values, the provision does contain irrefutable evidence of an EU devoted to a wider range of interests than trade promotion alone. Thus, the third paragraph of Article 114 TFEU specifically entrusts the EU institutions with the task of ensuring a high level of welfare protection in their legislation. Yet, it is clear that despite this concern for the regulatory quality of harmonisation norms, the latter may still fail to achieve the same standards as those attained at national level. Nevertheless, as evidenced by the remaining paragraphs of Article 114 TFEU, this provision contains two instruments intended to cater for national regulatory differentiation even in harmonised fields. The first, more radical mechanism, encapsulated by paragraphs 4–9 of Article 114 TFEU, and severely criticised by the integration supporters at the time of its introduction, provides for a notification procedure specifically allowing Member States to maintain or introduce more stringent measures than those set by a harmonisation norm.

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