Abstract
In this chapter, a description is provided of what constitutes national regulatory autonomy and its association with the fact that the Member States of the Union have conferred certain of their regulatory powers to the supranational Union. Initially, the notion of “sovereign nation states” is discussed along with the effects of the Europeanization of national regulations of the Member States leading to certain constraints on their regulatory autonomy. Secondly, a general description is provided of the consequences involved with the Member States conferring powers on the Union whereafter, finally, the legal foundation of the Services Directive is presented in this context.
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Notes
- 1.
De Witte 1995, p. 145. See also Maier 2000, Section 3.3.
- 2.
Zürn 1999.
- 3.
Offe 2000. See also Scott 2002a, p. 63, footnote 17.
- 4.
Scott 2002a, p. 63 ff.
- 5.
See for a general description of the Swedish national agencies in the internal market perspective provided by Statskontoret, National Agencies in the Internal Market—Applying Free Movement, 2007:12. See also Reichel 2010, Sect. 2.1.2, and Groussot and Petursson 2012.
- 6.
Governance may be based on hierarchical control where norms are set by legal rules where the rule-making power is held by a government or delegated to an agency, see Scott 2002a, p. 64. See also, as regards the Swedish system of delegated powers to the administration, Sterzel 2009.
- 7.
Scott 2002a, p. 64.
- 8.
On the basis of civil society, see Offe 2000, pp. 78–81. Furthermore, control may be achieved through design in different forms where the design of the system generates incentives to follow specific patterns or make impossible certain actions or behaviour, see Scott 2002a, p. 64.
- 9.
Scott 2002a, p. 66.
- 10.
Smith 1991, p. 16, as representing “legitimation of common legal rights and duties of legal institutions, which define the peculiar values and character of the nation and reflect the age-old customs and mores of the people”. These here do not refer to “national identity” as discussed in the Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693.
- 11.
Wennerström 2007, p. 53.
- 12.
Zürn 1999.
- 13.
Scharpf 2000 and Aalberts 2006.
- 14.
Supremacy of Union law, see Case 6/74, Flaminio Costa v. ENEL [1964] ECR 585, at p. 593.
- 15.
See for example the Swedish discussion related to the Laval case (Case C-341/05), SOU 2008:123 Förslag till åtgärder med anledning av Lavaldomen (National Public Assessment Proposal for Actions in Response to the Laval judgment). The fact that Sweden had not regulated minimum wages by law of by a fixed amount, but such was established by collective agreements through bargaining Sweden was considered in breach of Article 56 TFEU and Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, OJ L 18/1, where by Sweden had to consider altering this system.
- 16.
The “democratic deficit” has been given great attention by legal and political scientist scholars, for an overview of relevant discussions of democratic deficit in the Union, see Jensen 2009.
- 17.
For such discussion, see Bellamy 2006.
- 18.
The European Union may represent and sign agreements binding on all the Member States, see Part Five, Title V TFEU.
- 19.
EU Economic Governance—The Commission, see http://ec.europa.eu/economy_finance/economic_governance/index_en.htm.
- 20.
Case C-198/01, Consorzio Industrie Fiammiferi (CIF) v. Autorità Garante della Concorrenza e del Mercato [2003] ECR I-8055, para 49.
- 21.
See Cases C-84/94, United Kingdom of Great Britain and Northern Ireland v. Council of the European Union [1996] ECR I-5755, C-233/94, Federal Republic of Germany v. European Parliament and Council of the European Union [1997] ECR I-2405; and C-377/98, Kingdom of the Netherlands v. European Parliament and Council of the European Union [2001] ECR I-7079. See also Barents 1993.
- 22.
Case 294/83, Parti écologiste "Les Verts" v. European Parliament [1986] ECR 1339, at para. 23. See Reichel 2006, p. 26.
- 23.
Weiler 1999b, p. 61.
- 24.
These issues are further discussed in Part III.
- 25.
Biondi provides that “it is now a well-established principle that the existence of a certain competence is one thing, and how such competence is exercised, no matter if a certain case deals with national criminal law, labour law or taxation is quite another.”, 2009, p. 236.
- 26.
See for example Cases C-3/95, Reisebüro Broede v. Gerd Sandker [1996] ECR I-6511, 305/87, Commission of the European Communities v. Hellenic Republic [1989] ECR 1461, C-176/03, Commission of the European Communities v. Council of the European Union [2005] ECR I-7879; and C-446/03, Marks & Spencer plc v. David Halsey (Her Majesty‘s Inspector of Taxes) [2005] ECR I-10837.
- 27.
Weiler 1999b, p. 49.
- 28.
As provided by the Court in Case 6/74, Flaminio Costa v. ENEL [1964] ECR 585, at p. 593: “[b]y creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves”.
- 29.
This is related to the “internal competence” as between the Member States and the Union and not the “external competence” as opposed to third states and international organisations.
- 30.
Article 13(2) TEU provides that “[e]ach institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation”.
- 31.
Stemming from the American equivalent doctrine within constitutional law, see Douglas-Scott, 2002, pp. 169–171.
Case 60/86, Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland [1988] ECR 3921; Case 237/82, Jongeneel Kaas BV and others v. State of the Netherlands and Stichting Centraal Orgaan Zuivelcontrole [1984] ECR 483; Case 50/76, Amsterdam Bulb BV v. Produktschap voor Siergewassen [1977] ECR 137; and Case 111/76, Officier van Justitie v. Beert van den Hazel [1977] ECR 901.
- 32.
Case 60/86, Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland [1988] ECR 3921; Case 237/82, Jongeneel Kaas BV and others v. State of the Netherlands and Stichting Centraal Orgaan Zuivelcontrole [1984] ECR 483; Case 50/76, Amsterdam Bulb BV v. Produktschap voor Siergewassen [1977] ECR 137; and Case 111/76, Officier van Justitie v. Beert van den Hazel [1977] ECR 901.
- 33.
See Case 25/62, Plaumann & Co. v. Commission of the European Economic Community [1963] OJ Eng. Sp. Ed.: p. 95 and subsequent case law.
- 34.
Article 47 TEC.
- 35.
Although certain possibilities exists for proposals from other parties see Articles 17(2) TEU and 289(4) TFEU.
- 36.
See Article 113 TFEU providing for the legal basis in relation to indirect taxation founded on unanimous voting in the Council. Article 153 TFEU provides that the Union may support and complement the Member States actions in relation to certain questions and fields of law regarding employed persons.
- 37.
See Title XX, Environment and XIV, Public Health.
- 38.
Articles 4 TEU, 93, 106 and 107 TFEU.
- 39.
For example, Directive 2008/6/EC of the European Parliament and of the Council amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services [2008] OJ L 52/3.
- 40.
For example, Directive 2009/72/EC of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Text with EEA relevance) [2009] OJ L 211/55.
- 41.
Directive 2009/73/EC of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Text with EEA relevance) [2009] OJ L 211/94.
- 42.
Article 58 TFEU.
- 43.
Commission Communication accompanying the communication on "A single market for 21st century Europe" Services of general interest, including social services of general interest: a new European commitment COM(2007) 725 final, Section 2.1.
- 44.
Weatherill 2009, p. 24.
- 45.
See Recital 7 of the Services Directive.
- 46.
Weatherill 2009, p. 24.
- 47.
Hatzopoulos 2012, p. 107.
- 48.
Klamert 2010, pp. 126–129.
- 49.
Davies 2007, pp. 239–241.
- 50.
Ibid, p. 237.
- 51.
Klamert 2010, p. 127.
- 52.
Ibid, pp. 128–129.
- 53.
Van de Gronden and de Waele 2010, pp. 416–417.
- 54.
Ibid.
- 55.
Griller 2008, pp. 412–413.
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Wiberg, M. (2014). National Regulatory Autonomy Versus Conferred Powers in the Services Directive. In: The EU Services Directive: Law or Simply Policy?. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-023-7_5
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