Mutual Recognition, Functional Equivalence and Harmonization in the Evolution of the European Common Market and the WTO
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Description
The creation of a Common Market Place, indeed all trade liberalization regimes, produces an inevitable tension; a tension between the discipline of free trade and the regulatory autonomy of states. This tension is as true for the EU as it is true for the WTO, the NAFTA and all other similar trade regimes. It is structural. One way to reconcile this tension is by harmonization, but that is a heavy handed approach, which is politically difficult and might unnecessarily obliterate legitimate differences between states. The principle of mutual recognition (or as I shall eventually call it, functional equivalence) is an intermediate device which may help in reconciling the basic tension created by regulatory diversity in a single or liberalized marketplace. It cannot, however, be understood outside the general practice of free movement. The focus of this essay will be on the European Community, indeed on the heart of the Community, the common market in goods (which over the years has been closely synchronized with the common market in the other factors of production, notably services) and the place of mutual recognition within this market. I will try and show how (and why), over time, an early radical approach to market integration has been replaced by a more mature approach far more respectful or national regulatory autonomy. I will further argue that within one generation the doctrinal foundation of the law of the common market has shifted from a sweeping insistence on removal of obstacles to an approach which, at its heart, interdicts discrimination and attacks obstacles only when these bar access to the marketplace. My method will be simple enough. I will present snapshots of some of the most significant cases in the area of free movement of goods, cases so well-known as to obviate the necessity of any detailed description, and then attempt to transform these discrete snapshots into a cinematographic whole, a narrative over time in which the evolutionary nature of the jurisprudence will receive most attention. I regard this jurisprudence as suggestive of five ‘generations’: first, a foundational period stretching from the mid-1960s and culminating in Dassonville in the early 1970s; followed by a second generation in the late 1970s and early 1980s (Cassis; Regenerated Oil); a third generation in the mid- to late 1980s (a non-judicial phase of legal evolution consisting, inter alia, of the White Paper, the New Approach to Harmonization and the Single European Act); followed in turn by a fourth generation in the early 1990s (Keck). The present and near future will constitute the fifth generation for the purposes of this essay. The metaphor of generations is used not simply to underline change from one period to another, but also to underline continuity—the new and different is, in this account, an outgrowth or reaction to that which preceded it. And in describing this change and continuity I will be at pains to suggest some ways in which material constitutionalism can be seen as situated in and conditioned by the structural constitutional evolution of the Community. The shortcomings of my approach are self-evident: first, it is a story in which only landmarks feature. Much detail, important detail, is thus lost, though this might be a virtue, too, if the purpose of the essay is to provoke those who are already familiar with the field. The focus on court decisions and jurisprudence is another major limitation. Overall political economy, the dynamics and permutations of regulatory competition and the race to the bottom syndrome, economic analysis of various options adopted by the Court, and the true saga of implementing the White Paper are, at best, ‘context’ against which the jurisprudence takes place. Doctrine also suffers and not only where my positions or representations of doctrine will be challenged by many for which no apology is made, but also in eschewing whole areas such as price-fixing, intellectual property and the like for which I do make the proverbial apology of time and space.
Source Publication
The Principles of Mutual Recognition in the European Integration Process
Source Editors/Authors
Fiorella Kostoris Padoa Schioppa
Publication Date
2005
Recommended Citation
Weiler, Joseph H. H., "Mutual Recognition, Functional Equivalence and Harmonization in the Evolution of the European Common Market and the WTO" (2005). Faculty Chapters. 1519.
https://gretchen.law.nyu.edu/fac-chapt/1519
