Maletić, Isidora --- "Theory and Practice of Harmonisation in the European Internal Market" [2012] ELECD 361; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 17

Section Title: Theory and Practice of Harmonisation in the European Internal Market

Author(s): Maletić, Isidora

Number of pages: 9

Extract:

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 func-
tioning 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 harmonisa-
tion. 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 un-
der Article 95 EC is inextricably linked to the creation of the internal ...