EUROPEAN UNION WORLD

3. The centrality of law

One of the most outstanding features is the quiet confidence with which they claim the centrality of law within the Community. That is part of the claim to a common sense understanding of the force of Community law as "naturally" integrative which, in turn, feeds off conceptions of a common European identity such as those portrayed by Delors . The role of law as central to the Community project operates at a number of different levels.

The first level is ideological, and here it is the simplicity of Community law which is stressed. In the paradigm analysis, the nature of Community law needs no deeper investigation than a simple act of comparison to national law and international law. Since Community law is neither, it is sui generis and separate. Ergo it is autonomous. In the paradigm analysis, this answer is self-sustaining, with evidence drawn, where necessary, from the two other levels of analysis within which the centrality of law is empirically observable.

It is, for example, common for disputes between the institutions and the Member States and between the institutions inter se to be resolved judicially, with actions, for example, before the Court of Justice in which the legal basis of legislation is challenged in order to establish the vertical or horizontal contours of Community competence. The frequency of recourse to law by the Member States and the institutions can be cited as evidence of the centrality of the legal process and of the types of legal sanctions (most notably the nullity of a challenged act) which can be ordered in this context by the Court, rather than as evidence of a weakness in the political process or the political legitimacy of the Community.

Second, the paradigm analysis would insist upon the importance of the individual remedial structure for the maintenance of individual rights under Community law. Good examples can be drawn from the fields of sex discrimination and vocational training, where broad rights to equality of access to education in other Member States, based on Community citizenship, were developed as a result of "citizen pressure". Gravier is perhaps the best example of integration from below. Yet as with recourse to the legal process in any field of law, there is very little authoritative or non-anecdotal evidence to buttress claims for the centrality of individual rights as the key to the connection between so-called "Community citizens" and the Community constitutional order. The only evidence which has been collected takes as its model litigants (rather than potential litigants, or a class of aggrieved citizens).

4. Legitimacy and authority

Few dare challenge the preeminent position of the Court of Justice for a number of reasons. First, it runs counter to the centrality of the law in the modern liberal democratic state. In that sense, it is counter-intuitive to argue that Community law should not be regarded as an authoritative command of a legitimate sovereign. Second, empirically, the Court has proved to be a broadly progressive force within the EC, not only in the sense of promoting the pursuit of economic Treaty objectives, but also in its jurisprudence on sex discrimination and in other fields of social law. This has leant it "popular" legitimacy in a certain sense, even though in other senses it has arguably overstepped the mark by interfering in national competences or by making policy choices . Third, it has written a language of the rule of law and of fundamental rights for the EC - which, while it may only be a smokescreen for the better pursuit of integrationist goals - is nonetheless a more significant achievement than that of any of the other institutions.

Much of the power of Community law derives from its ability to appear natural and inevitable, amidst a process of unstoppable historical evolution. It draws succour both from the self-evident

inadequacies of the nation state as a political form, and from the forces of globalisation in the spheres of the economy and technology. One way to undermine the false power of Community law, and simultaneously also to reveal its reality, is to treat as elements of a counterprinciple of disintegration (not merely as "exceptions" to a quasi-universal truth) all the observable elements which run counter to the integration thesis.

5. The Counterprinciple of Disintegration

Some of the points which follow represent broadly the counterpoint of those which support the integrationist strand of Community legal order. However, there is no exact and direct equivalence between the two groups of four points.

1. Diversity and difference

One does not have to look to the "lunatic nationalist fringe" to find those who are sceptical about the ability of the current integration process to deliver upon its promises. The contested territory of the concept of subsidiarity provide a good example of this diversity for some, subsidiarity simply equates to nationalism, a new, and more respectable way of asserting the refusal to abandon national sovereignty. For others, subsidiarity connotes decentralisation, regionalism, divestiture of state power, and similar "buzz words". It means a new form of interest intermediation in the EC and a new way of holding power.

In practical terms, notions of European identity can be linked to the deeply problematic "European" response to the issue of citizenship (and therefore entitlements within the European polity), involving the recreation of a new "Us" and "Them" (Weiler) at the European level:

"In the very concept of citizenship a distinction is created between the insider and outsider that tugs on their common humanity. The potential corrosive effect on the values of the community vision of European integration is self-evident. Nationality as referent for interpersonal relations, and the human alienating effect of Us and Them are brought back again, simply transferred from their previous intra-Community context to the new inter-Community one. We have made little progress if the Us becomes European (instead of German or French or British) and the Them becomes those outside the Community".

2. Fragmentation

The celebration of diversity in approach highlighted above is unlikely to be seen on its own, even by the traditionalists, as a serious challenge to the hegemony of the sacred paradigm. A much more serious threat emerges from what appears to be the increasing fragmentation of the Community legal order - which is evident not only from the texts of the Treaty of Maastricht, but also, and perhaps much more ominously, in some aspects of the case law of the Court of Justice itself.

The first clear sign of such a trend came in July 1992 with the decision of the Court of Justice in the Wallonia waste ban case. With regard to waste not coming within the dangerous waste category, the Court held that the regional authorities of Wallonia in Belgium were justified, on environmental protection grounds, from setting up temporary safeguard measures against waste originating in other countries. In justifying what appeared to be a very generous treatment of a discriminatory measure (previously only so-called indistinctly applicable measures had been justifiable on environmental protection grounds under the Cassis de Dijon principle), the Court made reference to the special nature of waste and the importance of waste materials being eliminated as close as possible to the site of their production.

More recently, in a series of judgments handed down in Autumn 1993, but most strikingly in the case of Keck, the Court of Justice appears to have placed some stark limitations upon its earlier approach to certain types of restrictions on trade in goods. In Keck the Court overruled certain earlier cases (without, sadly, explicitly naming which ones) and held that there is a fundamental distinction to be drawn between measures which are concerned with the general conditions in which goods are marketed and those which are concerned with the nature of the goods themselves, holding that the former fall, in principle, outside the scope of primary Community law (the prohibition on measures having equivalent effect to quantitative restrictions - Article 30 EC). Academic reaction to what one commentator has termed the Court's judgment as a relinquishment not only all rigour in legal reasoning, but also as significant retrenchment in the scope of primary Community principles protecting free movement. Others have broadly applauded the Court for bringing Article 30 back into line with reality, and beginning the process of creating a limit upon the justiciability of national rules which allegedly limit free trade.

The developments in the judicial interpretation of Article 30, when read in conjunction with the process of institutional fragmentation of the strict requirements of the single market which began with the introduction of Article 100A(4) by the Single European Act which allows derogation by Member States from harmonised Community rules, subject to authorization by the Commission, pose a significant challenge to the thesis that the process of the integration of the market through both negative and positive integration is unstoppable and inexorable.

3. Disruption

At first sight, there should not necessarily be a commonsense presupposition about Community law as being naturally a cohesive force, since it can equally well be portrayed as a disruptive force within the context of an old consensus of nationalism, albeit one which has proved itself to be tragically flawed. Moreover, Community law, by its very nature, brings norms into conflict with each other: vertically in the Community/Member State interface and horizontally as between Member States.

It solves conflicts with simple mechanisms which do not always acknowledge the full complexities of the conflict - supremacy and preemption; mutual recognition doctrine in the field of economic law.

The fundamental propositions of the Community legal order are beguiling simple. In reality, they conceal more than they reveal. A simple principle of supremacy cannot resolve the deeprooted division between Ireland and the rest of the EU on the matter of abortion and the rights of the unborn child. Furthermore, this unified legal order, claiming respect for the rule of law, is itself based on a fundamental and deeprooted discrimination between nationals of Member States and third country nationals which "lies at the heart of the EC".

As it includes citizens within its jurisdiction, giving them new economic and social rights which they would not have had otherwise, so it also operates a set of criteria, largely based on nationality, which set the boundaries of its application. The new, and entirely artificial, construct of Community citizenship in the Treaty of Maastricht is likewise evidence of the disruptive force of Community law.

Furthermore, one way of looking at the single market project is to see it as creating competition

between legal orders. In that way, the disruptive element of competition is put to the service of closer economic integration by breaking down artificial barriers based on differences of legal norms.

On the other hand, the question does arise whether EC law has become too closely identified with the normative values of European economic integration - freedom of trade, free movement, economic liberalism, etc. - to operate effectively as a cohesive element in a European society.

4. Illegitimacy and weakness

It is possible to challenge the legitimacy of the European Community at a number of different levels. We are not directly concerned here so much with institutional arrangements such as the limited role of the European Parliament, the so-called democratic deficit, regulatory arrangements such as comitology (Winter), or the impact of crises caused by weaknesses in the political structures which triggered settlements such as the Luxembourg Accords and, much more recently, the Ioannina Compromise on Qualified Majority Voting after the fourth enlargement .

Rather the focus is upon the impact of the Community's legal order upon its claim to legitimacy as an emerging confederal or federal political entity. It is true that Community law fails to satisfy the test for law to operate as a socially cohesive force, because it is not a modern political democracy. The democratic deficit, although not an unproblematic concept in itself, nonetheless fatally harms many of the claims of the Community and its law to legitimacy and authority. On the other hand, the Community can lay claim to a formal commitment to the rule of law in that citizens do have access to an adjudication process, although whether this is effective in reality is questionable.
The principle of integration and counterprinciple of disintegration could usefully be worked through in more detail in the form of examples. In other words, the work so far is just the beginning of a broader project to identify to a conception of European Community law which can accept, and incorporate, its contradictory and discordant elements and which does not look for a false unity where none can be found.

6. Economic Law

6.1 Competition

Within the European Union, the Council of Ministers ("Council"), the Commission of the European Communities ("Commission"), and the Court of First Instance (CFI) and European Court of Justice (ECJ) are the principal institutions that set and enforce competition policies. The Council is the European Union's chief legislative body, though it shares some of that responsibility with the Commission and the European Parliament ("Parliament"). It acts on recommendations submitted to it by the Commission, the European Union's executive body. The Council can delegate power to the Commission permitting it to enact directives and regulations in certain areas without requiring further Council approval.

The Commission develops policies and legislation which it submits to the Council for action, and ensures that the EU authorities decisions are implemented. The Commission is comprised of more than twenty departments called Directorates-General (DGs), plus a general Secretariat. The department most concerned with the issues above mentioned is DG IV, the Directorate-General for Competition. The Commission's enforcement decisions may be appealed to the EU courts.

The European Court of Justice has the final say in matters of EU law. The European Union was established by treaty, the terms of which incorporate its provisions into the national law of each member state. Thus, where EU law applies, it takes precedence over conflicting national law. In cases based on EU law, the ECJ is the highest court of appeal. The Court of First Instance was created to lessen the workload of the ECJ. The CFI is generally the first court to hear competition-related cases, and parties may appeal its decisions to the ECJ.

The reach of EU jurisdiction beyond its borders is broadening. The extraterritorial reach of U.S. courts after World War II, impelled by the "effects" doctrine, was resented by other nations, including those in Europe, as interference with their sovereign rights. However, after creation of the Common Market in 1958 and the subsequent development of Community competition regulations, the attitudes of European enforcement authorities began to change.

Though initially resistant to the adoption of the effects doctrine, the ECJ has, over time, progressed in its decisions toward a general recognition of effects theory.

European Union competition law is based on the provisions of the EC Treaty. The provisions most relevant to this discussion are briefly as fllowing:

a. Article 3(g): Distortion of Competition Among Member States. Among the twenty general activities of the Community outlined in Article 3 is a mandate to establish "a system of ensuring that competition in the internal [EU] market is not distorted." This vague mandate states a fundamental premise of the EC Treaty, namely that state or private actions that raise artificial barriers to competition among member states should be prohibited. This article of EU law is sometimes relied on to reach behaviour challenged under other articles of the treaty, such as Article 86, that might otherwise fall within a legal loophole.

b. Article 86: Abuse of a Dominant Position. Article 86 prevents an enterprise (individual, single firm, joint venture, etc.) that occupies a dominant position within the EU market, or a "substantial" portion thereof, from abusing its dominance. Such abuse is prohibited as "incompatible with the common market," i.e., incompatible with the objective of integrating member-states' economies, the purpose for which the European Union was formed. However, the incompatibility arises only when the abuse affects trade between EU member states. Practices that would otherwise be abusive in an inter-member state context will not be prohibited when their effect is wholly within one member state (so long as the market involved is not deemed "substantial"), or wholly outside the European Union. Examples of abusive activities prohibited by Article 86 include excessive (monopoly) pricing, output restrictions in the face of customer demand, discrimination that disadvantages a customer relative to its competitors, and tying the sale of unrelated articles or services.

c. Article 222 appears in the General and Final Provisions section of the EC Treaty, meaning that it applies to all the provisions of the Treaty. It provides that the EC Treaty "shall in no way prejudice the rules in member states governing the system of property ownership." Stated another way, nothing in the EC Treaty, including the competition rules, should harm or deny property rights granted by EU member states. Article 222 has been specifically interpreted as covering nationally granted intellectual property rights (IPRs).

In 1992, the Council of Europe published its Directive for the Legal Protection of Computer Software ("Software Directive"), to advance the integration of the Common Market into the European Union and attempt to harmonize the IPR laws among member states. The Software Directive mandates the ways in which member states are to harmonize their various national laws protecting copyright in computer software. It attempts to reconcile the need of software developers for protection of their IPRs with the need for access by other developers to interface information. In balancing these conflicting needs, the Software Directive gives developers the right to decompile (reverse-engineer) validly-licensed software of others in order to discern the interface information necessary to ensure compatibility or interoperability.

Competition law, regardless of jurisdiction, serves many purposes, some sociopolitical, some economic. In the European Union, some of these purposes are the promotion of consumer welfare, efficient markets, and fair trading practices, including the elimination of exclusionary or anticompetitive behavior and assurance of access to markets. However, EU competitive law focuses more on the integration of its member states' markets and prevention of national or private restraints that effectively re-erect trade barriers removed by EU membership than on promotion of market efficiency per se. Another purpose promoted over efficiency by EU law is the protection of the right and ability of small and medium-sized firms to compete. Finally, EC Treaty law expressly prohibits competitive practices that limit markets or technical development "to the prejudice of consumers."

It is appropriate to note here the scope of protection afforded IPRs by EU laws and regulations.

Almost all IPRs within the European Union are granted by the member states. There is no pan-European system of patents, and almost all copyright protection in Europe is nationally based. As shown above, the EC Treaty does not facially derogate from those rights. However, the ECJ has in fact figured out a way to subordinate the interests of IPR holders to the larger interests of the European Union: the Existence/Exercise dichotomy.

According to the case law of the ECJ, the terms of the EC Treaty protect only the existence of intellectual property rights. Nothing done by any of the EU institutions may interfere with or diminish the existence of those rights. However, the ECJ distinguishes the exercise of rights from their existence. Though holding that the mere use of such rights, absent something more, can never amount to their abuse, the ECJ has been quite willing to find that "something more" which constitutes abuse. In such cases, the court has not hesitated to restrict what it considers the abusive exercise of IPRs.

Needless to say, this willingness to subordinate nationally granted IPRs to the interests of the European Union has attracted considerable criticism. Leaving the merits of that controversy aside, however, it appears that the Software Directive reinforces the ECJ's approach by authorizing a form of self-help by those who would otherwise be denied access to interface information they need in order to make their software interoperable with someone else's.
Competition policy is rooted in Community primary law, and the Commission has its own administrative instruments and resources to implement it. This special position of competition policy in no way means that its present state was established as soon as the EEC Treaty came into force. It was only after a laborious process that the conditions for implementing competition

policy could be created, and the principles of Articles 85 and 86 EEC could be successfully converted into legal rules and extended into what has since become a comprehensive system of European competition law. This growth process was bound up with reorientations of central categories and decisional criteria, through which competition policy responded to changing conflict patterns and took up new tasks. It is therefore not merely a quantitative but also qualitative growth.

a) Jurisdiction and Supremacy

Pursuant to Articles 85 and 86 EEC, Community law is to check anti-competitive practices likely to "affect trade between Member States". This so-called inter-state clause establishes the Community's jurisdiction and is intended to delimit it in relation to the area of validity of domestic antitrust law.

Supported by consensus on all sides, the Commission and the Court of Justice have in the course of time interpreted the criterion of jurisdiction, the restriction of trade, so extensively that it may even be termed functionless today. The logic of this interpretation is ultimately a consequence of integration itself. To the extent that the breaking down of barriers to trade is successful and Community internal trade becomes free, the question of restrictions on it loses its original meaning . The potential general competence of European competition law has practical and administrative consequential problems simply arising out of the notoriously slight endowment of the competent Directorate General, DG IV. From the point of view of legal systematics, it means that Community competition law overlays the antitrust systems of Member States, making their harmonization superfluous. Such a radical formulation of this consequence is usually avoided.
But on the logic of the case-law on direct applicability and supremacy of Community law, it is undeniable, even if the Court of Justice itself did not put it quite so drastically in its decision of principle over 20 years ago.

b) Competition Policy as Economic Policy

The Community is competent for competition policy as a whole, but only to a limited extent for economic policy. This division of powers leads to a complex dispute at Community level and in relation to the Member States. At Community level, the point is first of all the conceptual approach of competition policy itself. Nothing can be derived from the text of the EEC Treaty for the scholastic disputes among competition theoreticians about freedom of competition as an end in itself, the possibility and justification of instrumentalization of competition law for economic and social policy, or the value of efficiency or distribution criteria. In particular, the underlying Art. 85 EEC, in the prohibitory rules of paragraph 1 and the discretionary elements of paragraph 3, displays an indeterminacy typical of codifications. But the interpretation of the competition rules concerns not only competition policy as such; it is at the same time of importance for the Community's possibilities of economic policy action as a whole. For the more comprehensively the list of goals of competition policy is understood, the sooner the Community can make use of its competence for far-reaching regulatory purposes. The legal-technical machinery for this was created by the Court of Justice and the Commission through their handling of the prohibitory norms of Art. 85 (1) EEC and the exemption possibilities of Art. 85 (3) EEC. A formalistic, extensive application of Art. 85 (1) EEC allows the prohibition of practices on which no definitive negative value judgement is to be pronounced. Instead, the definitive valuation comes about only in connection with the application of Art. 85 (3) EEC -- and this happens in the Commission's exclusive competency(10). Its exclusive competence for exemption decisions and the broad catalogue of aims in Art. 85 (3) EEC, including "promoting technical or economic progress" and giving "consumers a fair share of the resulting benefit", offer the Commission the possibility of combining exemptions from antitrust prohibitions with regulatory objectives which must then in turn be respected by the Member States.

This technique has been tested in inconspicuous steps. A genuine dispute as to principle came out only in connection with European merger control. The prehistory of the present debates is instructive in this connection. In 1973 the Commission had already, following the ECJ decision in Continental Can, presented a first draft regulation. The draft fell into a sort of sleeping beauty slumber until a new ECJ judgement disclosed possibilities for merger control by using the EEC Treaty competition rules in force. The Europeanization of merger control then emerged as a development that could not be stopped. This situation was used by the Commission for a new initiative. The draft it submitted was based on the competence for competition regulations under Art. 87 EEC, and additionally on the residual powers clause of Art. 235 EEC, for the criteria named in Art. 2 of the draft for allowing mergers contained material for regulatory policy conflicts. The draft took off from the exemption regulations of Art. 85 EEC, extended them by further criteria (improvement of competitive structures and the taking of international competitiveness into account) and by a reference to the Community's general goals. By 1988 these already included the SEA title on social coherence (Art. 130a EEC) and technology policy (Art. 130f EEC). The regulatory policy criticism of the catalogue of objectives of merger control thus enriched was obvious. If the freedom of "competition as a discovery process" counts as an end in itself, then there can be no industrial or social policy requirements of higher rank, and the constructivist interventionism of technology policy in any case counts as a classical example of what Friedrich von Hayek would call a presumption of knowledge. Translated into the language of economic constitutional law, this means that the competition competency norm of Art. 87 EEC is sufficient to bring merger control in conformity with the competition rules of Articles 85, 86 EEC. If and because this competency norm is enough, reference to Art. 235 EEC was misplaced(16). Moreover, a regulation could not in any case amend Articles 85 and 86 EEC as primary Community law.

The regulation finally adopted in December 1989 keeps the reference to Art. 235 EEC, but is more reticent in its catalogue of objectives than the April 1988 draft. According to the 13th recital, the Commission is committed to the "basic objectives of the Treaty pursuant to Art. 2 thereof, including the objective of strengthening economic and social cohesion"; in the evaluative

criteria of Art. 2 of the regulation, "promoting technical or economic progress" retained but an insignificant position. This is just the way legislation usually deals with conceptual difficulties, leaving the parties at dispute to their controversies.

6.2 Free movement of goods

Articles 3a and 3c, 7a and 9 to 37 EC.

- Free movement of goods was first envisaged in the context of a customs union of the Member States, involving the abolition of customs duties, quantitative restrictions on trade and equivalent measures, and the establishment of a common external tariff for the Community.

- Later the emphasis was laid on eliminating all remaining obstacles to free movement with a view to creating the internal market - an area without internal frontiers, in which goods (among other things) could move as freely as on a national market.

The elimination of customs duties and quantitative restrictions (quotas) between Member States, which was due to be completed by the end of the transitional period, was in fact accomplished by 1 July 1968, i.e. one and a half years early. On the other hand, this deadline was not met in the case of the supplementary objectives - the prohibition of measures having an effect equivalent to that of customs duties and of quantitative restrictions, and harmonization of the relevant national laws. These came to be the central objectives of an ongoing effort to achieve freedom of movement, to which the plans for a single market gave a new impetus.

1. Prohibition of charges having an effect equivalent to that of customs duties (Articles 9(1) and 12 EC)

Since there is no definition of this concept in the Treaty, case law has had to provide one. The Court of Justice considers that any charge "whatever it is called and whatever its mode of application, (...) which, if imposed specifically upon a product imported from a Member State to the exclusion of a similar domestic product, has, by altering its price, the same effect upon the free movement of products as a customs duty" may be regarded as a charge having equivalent effect. The Court is thus not interested in the nature or form of the charge, but only in its effect (CJ Cases 2 and 3/62, 14 December 1962, and 232/78, 25 September 1979).

2. Prohibition of measures having an effect equivalent to that of quantitative restrictions (Article 30, EC).

The concept of a measure equivalent to a quantitative restriction is much vaguer than that of a charge of equivalent effect. The Court of Justice has therefore defined it in very broad terms. In the Dassonville judgment it takes the view that "all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions" (CJ Case 8/74, 11 July 1974).

The measures in question are generally those which affect only imported products. However, in the Cassis de Dijon judgment (CJ Case 120/78, 20 February 1979), the Court ruled that a measure could be deemed to have equivalent effect even without discrimination between imported and domestic products. In particular, imposing the technical rules of the importing State on products from other Member States is tantamount to introducing an equivalent measure since the imported products are penalized by being forced to undergo costly adjustments.
The fact that there is no Community harmonization of the rules cannot be used to justify this attitude, which effectively hinders freedom of movement, and the Court therefore laid down the principle that any product legally manufactured and marketed in a Member State in accordance with the fair and traditional rules and manufacturing processes of that country must be allowed onto the market of any other Member State. This is the principle of mutual recognition by the Member States of their respective rules in the absence of harmonization.

3. Exceptions to the prohibition of measures having an effect equivalent to that of quantitative restrictions

a. Article 36 of the EC Treaty allows Member States to take measures having an effect equivalent to quantitative restrictions when these are justified by general, non-economic considerations (public morality, public policy or public security, the protection of health and life of humans, animals or plants, the protection of national treasures and the protection of industrial and commercial property).

Control over the use made of this possibility is of course exercised by the Court of Justice. Such an exemption, constituting as it does an exception to a principle, must be strictly interpreted: it can be based only on the restricted list of reasons set out in Article 36. Exceptions are no longer justified if Community legislation has come into force in the same area. Finally, the measures must have a direct bearing on the public interests to be protected and must not go beyond the necessary level (principle of proportionality).

b. The Court of Justice has recognized (Cassis de Dijon Case) that, over and above the considerations set out in Article 36, the Member States may make exceptions to the prohibition of measures having an equivalent effect on the basis of mandatory requirements (relating among other things to the effectiveness of fiscal supervision, fairness of commercial transactions and consumer protection).
c. To facilitate supervision of national exemption measures a procedure for the exchange of information has been devised (decision of the European Parliament and Council of 13 December 1995), which requires the Member States to notify any such measure to the Commission.

4. Harmonization of national provisions
The adoption of Community laws enables the obstacles created by national provisions to be removed by rendering these inapplicable when they clash with Community law. This is, indeed, the only course available when the national provisions are justified by Article 36 or the concept of a "mandatory requirement". Since the mid-sixties the Community has made considerable efforts in this respect: more than 250 directives on a great variety of subjects have been adopted. Harmonization was often an extremely arduous process, since the directives incorporated all the technical specifications and required unanimity in the Council (Article 100 EEC).

5. Completion of the internal market

The creation of the single market implies the elimination of all remaining obstacles to free movement. The Commission White Paper of June 1985 set out the physical and technical obstacles to be removed and the measures to be taken by the Community to this end.
Most of these measures have now been taken.

a. Elimination of checks at internal borders (physical barriers)

- Customs formalities were simplified during the period 1985-1992 (single administrative document, common border posts, simplification of Community transit procedures) before being abolished on 1 January 1993.

- Border controls were abolished on 1 January 1993. Checks, particularly in connection with animal and plant health, may be carried out inside Member States, in the same way as such checks are made on domestic products moving within the States, i.e. without discrimination based on the origin of the goods or the mode of transport.

b. Elimination of technical barriers

After the removal of customs formalities and border controls, technical barriers are the chief remaining obstacle to complete freedom of movement. They are numerous, highly diverse and constantly changing. There are two main ways in which they can be eliminated:

- monitoring of compliance with the principle of mutual recognition of national rules by means of Article 30 EC;

- legislative harmonization, facilitated not only the qualified majority requirement for most directives relating the completion of the single market (Article 100a) but by the adoption of a new approach to avoid an onerous total harmonization. This approach, set out in the Commission White Paper of June 1985, has the following implications in practice:
•Since the guiding principle is that of mutual recognition of national rules, Community harmonization is only justified when these rules cannot be considered equivalent.

•Harmonization must be restricted to essential health and safety requirements, rather than covering detailed technical specifications. For technical specifications, harmonization directives refer to the standards to be laid down by the European standardization bodies.

These standards (like any standard) are not mandatory, but their application by a manufacturer carries the automatic assumption of compliance with the directive.

•Pending the drafting of European standards, there must be mutual recognition of national standards; a purchaser of products from another Member State does not have to prove that the products comply with the standards which apply in the importing State. Mutual recognition must therefore extend to technical testing and certification procedures.
Many directives have been adopted following the new approach, for example those dealing with simple pressure vessels, toys, building materials, machines, gas appliances and telecommunications terminal equipment.

The greatly increased need for European standards has led to a reform of the European standardization system. The intention is now to convert national standards systematically into European standards. Close cooperation has grown up between the Commission and the European standardization bodies (the general body CEN, CENELEC in the electrotechnical field, and ETSI, founded very recently to cover telecommunications). On 16 October 1990, the Commission presented a communication on standardization recommending among other things the use of majority voting for the adoption of European standards, shorter conciliation deadlines for drafting them and direct application (without transposition into national law).

Apart from its general supporting role in the completion of the internal market, the European Parliament has given particular backup to the "new approach" in connection with the free movement of goods, clarifying its definition in a report in 1987. It has made a strong legislative contribution to the directives relating to it and taking a strong interest in the work of the European standardization bodies (it debated the Commission Green Paper on the subject in depth).

6.2 Freedom of movement for workers

Articles 3 c), 7a and 48-51 of the EC Treaty.

-Increasing the Community's workers' chances of finding work and adding to their professional experience;

- encouraging the mobility of workers, as a way of stimulating the human resource response to the requirements of the employment market;

- developing contacts between workers throughout the Member States as a way of promoting mutual understanding, creating a Community social fabric and hence "an ever closer union among the peoples of Europe", the main aim of the Treaties.
Following two provisional schemes (regulations and directives of 16 August 1961 and 25 March 1964), permanent arrangements on freedom of movement were introduced with Regulation 1612/68 of 15 October 1968 (amended by Regulations 312/76 and 2434/92 and Directive 68/360 of the same date). In addition to this legislation, the extensive case law of the Court of Justice must be mentioned, particularly the Van Duyn judgment of 4 December 1974 (41/74), which affirmed the direct applicability of freedom of movement when the transitional period ended (1 January 1970).

1. Current general arrangements on freedom of movement
Any citizen of a Member State has the right to move freely with his or her family to other Member States in order to take up employment and to work under the same conditions as citizens of those countries.

a. Workers' rights of movement and residence

- Movement: Community citizens are entitled to leave their country of origin (which may not insist that they have an exit visa) in order to go to another Member State; the latter may not require them to hold an entry visa; an identity card or a passport is sufficient. As part of efforts to scrap all checks on people at internal Union frontiers, the Commission has proposed (COM(95) 348) amending Directive 68/360 to remove the requirement to produce an identity document when crossing the frontier.
- Residence: The right of residence is regarded as being linked to the right to take up a job (under Article 48 of the EC Treaty, it entails the right "to accept offers of employment actually made") and so should not be exercised simply in order to look for work. After three months, which is considered sufficient time to find a job, the right of residence should result in the issuing of a permit (other than the residence permit for "ordinary" foreigners) called a "Residence Permit for a National of a Member State of the EEC" (Article 4 of Directive 68/360): it is issued on production, in addition to the identity card with which the person in question crossed the border, of a statement of engagement from the employer or a certificate of employment. It is issued automatically (whereas other foreigners receive "permission" to reside, which implies that the national authorities have discretionary powers). The permit is valid for at least five years and is automatically renewable even if holders have lost their job.

b. Rights of entry and residence for family members

- The spouse of a worker who is a Community national, their children who are under 21 or dependants, and their dependants in the ascending line have the right to settle with the worker (Regulation 1612/68, Article 10(1)), provided the worker has housing that is considered suitable (Article 10(3)).

- If they are citizens of a Member State they may not be required to hold an entry visa and are also themselves entitled to be issued with a Residence Permit for a National of a Member State of the EC. If they are nationals of a non-EU state, they may need to have a visa but they receive a residence permit with the same validity as that of the worker.

c. Work

- Taking up employment

Nationals of a Member State have the right to take up employment within the territory of another Member State on the same terms as national workers (Article 1 of Regulation 1612/68). National provisions which are restrictive (limiting the number or percentage of foreigners who may be employed per company or per sector at regional or local level or reserving certain jobs for nationals) or discriminatory (subjecting foreigners to procedures or conditions which do not apply to nationals, e.g. work permits) are not, therefore, applicable to Community citizens. Spouses and children of workers are also entitled to work even if they are not Community citizens (Article 11 of Regulation 1612/68).

- Treatment at work: Community workers must be treated in the same way as national workers:

•in respect of any conditions of employment or work, especially as regards remuneration, dismissal and reinstatement or re-employment (Regulation 1612/68, Article 7(1) and (4));
•in the case of benefits not directly connected with employment, i.e. social and tax advantages, including vocational training, housing benefits, aid intended to ensure a minimum subsistence level (Article 7(2) and (3) and Article 9 of Regulation 1612/68) and family allowances;

•in respect of trade union responsibilities and staff representation duties in their undertaking, although they may not be allowed to take part in the management of bodies governed by public law (they may not be elected to social security authorities).

d. Right to remain in the host country after working there
Laid down in the Treaty (Article 48(3)(d)), this right was spelled out in the Commission Regulation of 29 June 1970 (1251/70) which allows workers to remain permanently in the state where they last worked, provided they have worked and lived there for three years or have reached the age of retirement or suffer from permanent disability. The same goes for those members of their family who live with them.

2. Restrictions on freedom of movement

a. Restrictions on the right of entry and residence

The Treaty (Article 48(3)) allows Member States to refuse to allow Community nationals to enter or live in their territory on grounds of public policy, public security or public health. A directive of 25 February 1964 (64/221) however, attaches certain conditions to this power and the Court of Justice has kept a careful watch to ensure they are fulfilled.

The reservation on the grounds of public health is well defined as it only applies to the diseases or disabilities listed in the directive (Article 4). The concepts of public policy and public security are not well defined but the directive (Articles 2 and 3) sets limits to them: if they are cited, this may not be on economic grounds but must be based solely on the personal conduct of the individual concerned: the mere existence of criminal convictions or the simple expiry of the identity card will not constitute sufficient grounds.

In the absence of a Community definition, the Court of Justice has assumed the right to monitor Member States' interpretation of what public policy means. According to its decisions:

- States may only have recourse to the public policy reservation exceptionally and in a limited way;

- measures may not be collective or reflect a wish to achieve general exclusion;
- finally, in accordance with the principle of equality of treatment, the conduct in question must also be punishable when exhibited by nationals.

b. Restrictions on taking up jobs in the public service
The Treaty (Article 48(4)) ruled out freedom of movement in the case of "employment in the public service". In order not to leave the assessment of this concept to the discretion of Member States, where the legal situation of public service employees varies so much and the Member States could abuse this exemption, the Court of Justice was obliged to define it. It rejected the description of the legal relationship between the worker and the public service (manual worker, non-manual worker or official; public law or private law relationship, CJEC 66/85, 3 July 1986) as a criterion and adopted a functional view: jobs in the public service were those "which involve direct or indirect participation in the exercise of powers conferred by public law" as characterized by exercise of a power to constrain individuals or by association with higher interests, such as the internal or external security of the State.

In a statement on 5 January 1988, the Commission listed the activities which it considered formed part of the "public service": these were, firstly, the specific functions of the State and allied bodies, such as the armed forces, the police and the other forces of order, the judiciary, the tax authorities and the diplomatic service and, secondly, employment in government departments, regional authorities and other similar bodies, and central banks, where this involved staff (officials and other employees) who carried out activities organized on the basis of a public legal power of the state or of another legal person governed by public law.

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