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From Hard to Soft: Governance in the EU Internal Market

From Hard to Soft: Governance in the EU Internal Market. Vassilis Hatzopoulos Associate Professor at the Democritus University of Thrace (Greece) Visiting Professor at the College of Europe, Bruges (Belgium) Honorary Lecturer at the University of Nottingham (UK)

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From Hard to Soft: Governance in the EU Internal Market

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  1. From Hard to Soft: Governance in the EU Internal Market Vassilis Hatzopoulos Associate Professor at the Democritus University of Thrace (Greece) Visiting Professor at the College of Europe, Bruges (Belgium) Honorary Lecturer at the University of Nottingham (UK) Attorney-at-Law, Member of the Athens Bar Vassilis Hatzopoulos

  2. EU regulatory and non-regulatory techniques Harmonisation Managed MR Adm Cooperation Networks Unification Standards MR Agencies OMC/soft New approach CEUM Newgovernance Vassilis Hatzopoulos

  3. Unification • Only exceptional • Transport policy: common rules for vehicles/drivers • Financial markets: after 40 years and 2 crises still under way • Only partial unification • Transitional periods, derogations, exceptions etc • Unification may concern • Regulation: transport • Guidance and issuance of standards: EASA, EMSA, ERA • Supervision: ESFS= EBA, EIOPA, ESMA + ESRB Vassilis Hatzopoulos

  4. Harmonisation Variable Partial, minimal, imperfect, limited etc Spill-over: at EU (Mangold/Khalil) and MS level (gold-plating / reverse discriminations) Vassilis Hatzopoulos

  5. Regulatory Competition Concept Selection of rules by regulatees (consumers) Is opposed to unification/harmonisation Supposes regulation at the lowest level and free movement of goods/services Should exist at the regulatory and judiciary level Advantages Disadvantages Vassilis Hatzopoulos

  6. Regulatory Competition Source : Scharpf, Fritz, ‘Introduction: the problem-solving capacity of multi-level governance’ 4 JEPP (1997) 520-538. High EU Capacity to regulate Tariffs & quotas - WTO Health, Safety and Environmental Product Regulation Competition policy Agriculture Telecoms Road haulage & Energy Banking Environmental Process Regulation Low High MS Capacity to regulate Social Policy Law and Order Business and Kal Taxes Education Low Vassilis Hatzopoulos

  7. Mutual Recognition Concept Further than equivalence: a voluntary act of holding dissimilar things as being similar Categories: judicial/legislative or pure/managed Sources: Unwritten: proportionality, sincere cooperation (4(3)+ 291 TFEU), pacta sunt servanta + Neukirchinger (citizenship) Written: 53 TFEU, case law, COM practice, Dir 98/34, WTO Procedural consequences – even if no actual recognition: Evaluation procedure available Administrative cooperation Judicial control Cases where MR is altogether excluded (gambling)? Political implication: horizontal transfer of powers Vassilis Hatzopoulos

  8. Mutual Recognition 4 levels Documents, certificates etc Measures Policies Regulatory objectives Vassilis Hatzopoulos

  9. Mutual Recognition- Standards Origin Public (national/supra) Private (Blueray/Nintendo, PC/Mac etc) Mixed (by NRAs) Production of norms Centralised: DIN, AFNOR, BSI / CEN/CENELEC / ISO/UIT Decentralised + agreements of MR Use For the consumer – worker: quality - protection For the firm: access to markets Legitimacy Representativity (vs proceduralisation) dominance of Industry IPRs and open/closed Standards Competition law issues: concerted practices – dominance Conformity control (see next slide) Vassilis Hatzopoulos

  10. Mutual Recognition – New Approach ACCREDITATION Internally CERTIFICATION By private bodies By public bodies BUSINESS CEN/CENELEC Council/EP Commission Vassilis Hatzopoulos

  11. Private regulation Variants Participation – consultation for the adoption of public measures Co-regulation (separate regulatory segments) Public delegation Ex post recognition/validation of private regulation Judicial recognition – sanctions for non compliance Means (also self-regulation) Codes of conduct Standards and quality labels Coordination (technical) by associations of undertakings Corporate social responsibility Vassilis Hatzopoulos

  12. Private Regulation : Reasons for Compliance Internal to private rule External to private rule Group interest Sanctions Contractual clauses Transformation into public Self interest Market pressure Default rules

  13. Agencies Reasons General: Need to deal with technologically complex issues: professional management, independent advice and depoliticised decisions US experience since 1889 (especially with executive agencies) EU: Intensification of IM coordination in technical areas (drugs, IPRs, networks) Diversification of EU competencies (2d and 3d pillar) + communautarisation of Title IV on Immigration, Asylum and Visas Mushrooming in the 2000s 23 agencies in what was the 1st pillar 3 agencies -//- 2d pillar 3 agencies -//- 3d pillar +6 provisional executive agencies Status Problem with Meroni Joint Statement of EP/Council/Commissionof 19/7/12 on decentralised agencies Vassilis Hatzopoulos

  14. Agencies in the field of services

  15. Executive agencies in the field of services Vassilis Hatzopoulos

  16. Networks in the field of services

  17. Open Methods of Coordination What are OMCs? Processes which are Non binding Open ended and flexible Based on mutual learning Multilevel making – peer reviewed implementation What are the diversifying parameters Degree of determinacy of common guidelines Degree of clarity of the roles of the actors Enforcement – sanctions – benefits for compliance Where are they used? Treaty based areas: BEPGs, EES, Adjunct areas: Social protection, Inclusion, Pensions, Healthcare Nascent areas: R&D, Info Society, Environment, Immigration, Enterprise policy Vassilis Hatzopoulos

  18. Open Methods of Coordination Coordination is seeked through a periodic exercise in four stages: European Council sets the general orientations and objectives Council, upon proposal by the Commission, picks qualitative/quantitative indicators and benchmarks for evaluating national policies as against the set objectives MS adopt NAPs for achieving the objectives Peer review (MS) upon report by the Commission – naming, shaming and faming Vassilis Hatzopoulos

  19. Open Methods of Coordination Why are the OMCs good? Allow for flexibility – diversification Lower contracting costs, easier to “commit” MS, even in areas where no EU competence Knowledge based and evolutive: ideal for policy fields where no clear political direction Broader participation, better compliance Why are the OMCs bad? Lack of effectiveness – burden for the EU Institutions Put at stake the very premises of the EU legal order: direct effect and supremacy – soften hard law Lack of transparency – Lack of justiciability No representation and questionable participation Vassilis Hatzopoulos

  20. Conclusion Multilevel, multi-means and multi-actor governance Broad participation by stakeholders (organised interests) Increased “proceduralisation” as a substitute to legitimation and/or decision-making Dynamic “institutional balance” Agencification – networking Gains for intergovernmentalism and diversification – but not linear (financial services) Vassilis Hatzopoulos

  21. Conclusion Thank you for your attention. For further discussion see http://ukcatalogue.oup.com/product/9780199572663.do#.UJVeP28UmSo Vassilis Hatzopoulos

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