Harmonizing Europe: European Law in Practice

1. Francesco Duina International Center for Business and Politics (Denmark) Department of Sociology - Bates College (USA) fduina@bates.edu CBS Jean Monnet European Lecture April 14, 2008 Harmonizing Europe: European Law in Practice

2. EU Law in Practice: Three Points Power of Law Harmonization only Way? Implementation

3. Sources of EU law TEEC and now TEC: Commission, Parliament, Council TEU - foreign and security policy, justice and home affairs … but not supranational What is EU Law? Purpose of EU law • Establishment of a common market: goods, capital, labor, and services + CET Characteristics of EU law (ECJ) • Direct effect • Supremacy over national law

4. Measuring Intensity

5. Breadth of EU Law

6. Harmonization From very beginning, EU officials sought to harmonize national legal systems Periodic talk of reliance on mutual recognition have not changed the fact that EU law remains highly focused on harmonization Depth of EU Law

7. Example: Conditions at the Workplace

8. The Problem of Boundaries: TAD Example Against: Germany & Austria Abstained: Denmark & Spain Against: Germany & UK Abstained: Denmark & Spain Opposition from: Denmark, Germany, Greece, Netherlands, UK 1985 1989 1997 2000 1997 European Court of Justice annuls TAD1 Europe Against Cancer Program Commission works on TAD TAD1: Direct and Indirect Advertising TAD2: Direct Advertising only 89/552/EEC: television ad 89/662/EEC: labeling 90/239EEC: tar maximum 95/59/EEC: minimum tax Germany argues: 1. Directive hurts market 2. Focus on Public Health

9. The Position of Selected Member States Germany Spain Opposes the TAD1 and TAD2 • Argument centers on TEC Article 153 (3a): “measures adoption pursuant to Article 95 in the context of the completion of the internal market” • Powerful international tobacco companies with ties to CDU, SPD, and the Free Democrats • Libertarian domestic legal environment • Weak public policy programs Abstains on TAD1, Supports TAD2 • Spain worries about Germany: Structural Funds and enlargement • Pending privatization of Tabacalera • No legislative history . . . • . . . nonetheless willing to support a Commission initiative in 2002 The UK Italy Supports TAD1, Opposes TAD2 • Post war scientific and political support for tobacco control: modest rules • 1977-1997 governments support tobacco industry: powerful companies grow • Labor in power: Blair supports ban • Formula 1 exception: October 2006 vs. TAD2 July 2005 Supports TAD1 and TAD2 • Long history of legal & judicial intervention: Law 165 of April 1962 and several supreme court cases • Powerful state tobacco monopoly (AAMS) with ties to Philip Morris ---> but privatizing • Dynamic cancer research community and incipient popular movements

10. The Legitimacy Struggle TEC: Titles XI, XII, XIII, XIV, XIX Public Health Consumer Protection Environment Education Culture The Commission’s Mandate: Non-Market & Morally Charged Issues TEC: Single Market Clauses Article 153 (3a) Article 75 (2) TEU: Article 6 Liberty, fundamental freedoms, democracy Controversial & Rich EU Laws

11. Point #1: Is Harmonization the Only Way? Markets require shared cognitive guidelines: • Definitional notions: define reality as it is (objects, activities, agents). Examples include fresh fish, marketing, and doctors • Normative notions: define reality as it should be (situations). Examples: no discrimination between sexes at the workplace, no pollution beyond certain limits Absence of shared cognitive guidelines can lead to the dissolution of markets or their inefficient functioning

12. Varieties of Legal Approaches NAFTA MERCOSUR Andean Community ASEAN COMESA EFTA Multiple approaches … what can explain this variation?

13. Specific Targets and Content: continuum between national and regional law The Roots of Regional Law National Institutional & Political Contexts Regional Law Minimalist: tendency towards limited standardization, reference to international standards, use of reactive conflict resolution mechanisms Common Law + Preference of Powerful Actors Civil Law + Preference of Powerful Actors Interventionist: tendency towards heavy standardization resulting in rich cognitive guidebooks to reality Existing Legal Principles on Relevant Topics + Preference of Powerful Actors

14. Point #2: The Problem of Implementation • Directives and regulations • Timing and extent of transposition and application • Compliance rates with EU law are quite poor … with some countries doing better than others

15. Fit hypothesis: fit with national legal/administrative traditions and the preferences of powerful interest groups Schools of Thought Veto Players & institutional reform capacity: number of veto players and ability of domestic institutions to change and adapt shape outcomes Worlds of Compliance: Observance (Denmark, Sweden), politics (France, Germany), neglect (Greece, Portugal)

16. Specific Targets and Content: continuum between national and regional law Point #3: The Power of Law National Institutional & Political Contexts Regional Law Minimalist: tendency towards limited standardization, reference to international standards, use of reactive conflict resolution mechanisms Common Law + Preference of Powerful Actors Civil Law + Preference of Powerful Actors Interventionist: tendency towards heavy standardization resulting in rich cognitive guidebooks to reality Existing Legal Principles on Relevant Topics + Preference of Powerful Actors Selective Organizational Expansion Industries: transnational product lines and production infrastructures Interest Groups: transnational agendas and membership bases States: transnational administrative units, domestic units with transnational mandates

17. Mercosur Dairy Companies

18. EU Dairy Companies

19. EU Women’s Organizations Major European-Level Women’s Interest Groups