Weatherill, Stephen --- "Supply of and demand for internal market regulation: strategies, preferences and interpretation" [2006] ELECD 409; in Shuibhne, Nic Niamh (ed), "Regulating the Internal Market" (Edward Elgar Publishing, 2006)

Book Title: Regulating the Internal Market

Editor(s): Shuibhne, Nic Niamh

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420338

Section: Chapter 2

Section Title: Supply of and demand for internal market regulation: strategies, preferences and interpretation

Author(s): Weatherill, Stephen

Extract:

2. Supply of and demand for internal
market regulation: strategies,
preferences and interpretation
Stephen Weatherill*

INTRODUCTION
This chapter is inspired by the surprising absence of clear rules about the
constitutional character of some aspects of the law governing the internal
market. It aims to demonstrate how vital but unsettled constitutional questions
about the allocation of competence bear heavily on the type of internal market
that is being, and can be, created. It is legislative harmonisation in particular
that invites exploration in this vein.
The examination of the scope and purpose of legislative harmonisation is
constructed around three connected questions. All three were touched on by
the Court in its most spectacular recent exploration of these realms, Tobacco
Advertising,1 but neither there nor subsequently have the conundrums been
resolved. First question (Q.1): what is the scope of harmonisation envisaged
by the EC Treaty? The EC Treaty confers no competence to harmonise per se;
the competence is more limited than that and is, in short, tied to the process of
market-building. Also, what exactly is at stake in determining how much
harmonisation is constitutionally permitted? Second question (Q.2): what is
the impact of legislative harmonisation on the scope of residual national
competence? One might suppose that the pursuit of a level (commercial) play-
ing field would dictate that EC rules displace local autonomy, but that may be
subject to criticism as damaging to regulatory experimentation, heedless of
special local concerns and, more generally, incompatible with trends towards
flexibility ...