Chapter 17: Theory and Practice of Harmonisation in the European Internal Market
Isidora Maletic* ´ This chapter1 purports to explore the theory and practice of harmonisation by using as a test case a pivotal legislative provision of the European Treaty. Article 95 EC,2 which enables the Community institutions to adopt measures for the approximation of Member States’ norms relating to the establishment and functioning of the internal market, constitutes one of the most powerful instruments for the advancement of European harmonisation. However, there seems to be a fundamental divergence between the theory and practice of harmonisation under this provision. Under the Treaty, it is envisaged that, in theory, the process of harmonisation will be complemented by the possibility for Member States, in accordance with the procedure contained within paragraphs (4) to (9) of Article 95 EC, to maintain or introduce national measures even following harmonisation. Nevertheless, in practice, this derogation procedure ‘has proved to be relatively infrequently invoked and its use even less frequently authorised’.3 It is the object of this chapter to analyse to what extent this discrepancy between the theory and practice of harmonisation under Article 95 EC has resulted in a loss of regulatory differentiation, and to investigate more generally how harmonisation under this provision, which characterises much of the European legislative agenda, may be reconciled with regulatory variation at national level. As illustrated by the seminal Tobacco Advertising4 case, harmonisation under Article 95 EC is inextricably linked to the creation of the internal market. It will be remembered that the Court annulled a directive which had allegedly been...
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