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The Eu Single Market: Free Markets, Protectionism and Excessive Regulation

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The Eu Single Market: Free Markets, Protectionism and Excessive Regulation THE EU SINGLE MARKET: FREE MARKETS, PROTECTIONISM AND EXCESSIVE REGULATION by Frits Bolkestein and Lüder Gerken One example of this is Spain's attempts to prevent a German utility company from taking The future viability of the European Single over a Spanish one. The European Commission Market is at risk, although politicians on the ascertained in accordance with the rules that European level and in the Member States there are no objections to this takeover in would certainly dispute that and tend to terms of competition law. But even so, national portray the whole set-up in rosy colours. egoistic considerations led Spain to use a But it is much too easy to proclaim the constant flow of new tricks to prevent the successful achievements of the past and ignore takeover, although this violates EU law. the alarming developments that are Another example is the way Germany fends off jeopardizing the sustainable continuation of foreign competition right across the board the Single Market. under the guise of "services of general interest". Without doubt, the Single Market is the starting On the other hand, the European Commission point and heart of in-depth European as guardian of the treaties frequently fails to integration. It has brought us the elimination of exert sufficient pressure when asserting the trade barriers, the dissolution of what were interests of the Single Market. One example for usually state-protected monopolies and last this is its faint-hearted approach to dealing but not least, extensive deregulation. It is thus with German state interventionism in saving the central reason for the prosperity which we the Bankgesellschaft Berlin, which had been enjoy today in Europe. brought to the brink of bankruptcy by But it is becoming increasingly and urgently mismanagement and structures so closely clear that this heart is no longer beating intertwined with state policy as to give rise to properly, so that it is no longer capable of suspicions of corruption. The EU only approved providing the remaining organic aspects of of a reorganization package funded by the European integration with the necessary German tax payer on condition that the strength. Bankgesellschaft and its subsidiary the "Berliner Four findings indicate that Europe's Single Sparkasse" (Berlin savings bank) be sold in a Market policy is moving in the wrong direction. non-discriminating procedure. But such a In the end, this could result in the failure of the procedure which discriminates no bidder Single Market project – and with it probably contradicts paragraph 40 of the German also the failure of European integration Banking Act. This stipulates in clear terms that altogether. apart from the already existing independent "Freie Sparkassen", only public law institutes First finding: the European Union is are allowed to use the name "Sparkasse" increasingly losing its ability to protect the (savings bank), so that a private buyer would Single Market from intensifying have to sacrifice the name "Berliner Sparkasse". protectionism on the part of the Member Instead of relentlessly demanding an States. amendment to paragraph 40, which is by all means possible under EU law, the Commission It is part of the fundamental intrinsic nature of opted to settle for the dubious assurance from the European Union to protect barrier-free Germany that in the future this paragraph movement of goods, services, persons and would be "interpreted" in accordance with EU capital from being undermined by protectionist law. How this can happen in view of the measures of the Member States. However, this unambiguous wording remains to be seen, and is increasingly no longer possible. divergences in the interpretation of the The reasons for this can be found on the one German assurance already emerging today hand in the increasingly frequent and blatant show that the necessary acceptance simply attempts by Member States to assert their does not prevail in Germany. protectionist interests by explicitly breaching But the more frequently the Commission fails the Single Market rules. to fulfil its duty as guardian of the Single CEP | Hermann-Herder-Str. 4 | 79104 Freiburg | Telefon +49 761 38693-0 | [email protected] 1 THE EU SINGLE MARKET: FREE MARKETS, PROTECTIONISM AND EXCESSIVE REGULATION Market, the weaker it will be in future disputes. And the more frequently the Member States successfully undermine the Single Market, the Second finding: the Single Market is less willing will they be to respect its basic rules. increasingly losing its significant role as This automatically results in an erosion of the pioneer in cutting back excessive regulation; Single Market. on the contrary, it is increasingly turning Fundamental significance should therefore be into a high-regulation zone itself. attributed to the latest proposal for a regulation by the Commission which would While it is currently the declared objective – yet considerably confine Member State again – of the European Commission to reduce protectionism in the movement of goods. The bureaucratic burdens, the fact is that all such background: Article 30 of the EC Treaty and endeavours in the past have not been prevailing case law by the European Court of particularly successful, and furthermore, this Justice permit an import ban only in the will not have any effect on a far more exceptional case when a product from another fundamental problem: for several years now, Member State would jeopardize certain the Single Market's legislature itself has been national objectives in the import country, undergoing a shift in paradigms. particularly regarding health or consumer The original intrinsic nature of the Single protection. This exception is subject to massive Market consisted in the fundamental ability to abuse, for instance by using the pretext of sell goods made in one Member State in health protection to protect the domestic accordance with its national legislation, in industry from foreign competition: the affected other Member States. This is the principle of foreign companies have to produce counter- mutual recognition, or the principle of the evidence in expensive procedures usually country of origin. prescribed by the import country so that their However, today this principle is increasingly products are no longer competitive in terms of pushed into the background by the attempt to their price, thus fulfilling the protectionist introduce harmonisation measures which objective. prescribe statutory regulations "on a high level" The Commission estimates that such abuse as uniformly as possible throughout Europe, as costs the EU’s economy more than €150 billion regularly formulated in the EU's legal p.a. The Centre for European Policy estimates instruments. The result of this policy is not to that at least 2.5 million new jobs could be cut back national over-regulation as a created by preventing abuse along these lines. consequence of competition, with over- The regulation now proposed by the regulation preventing dynamic economic Commission reverses the burden of proof: a growth and a corresponding increase in jobs; country which wants to issue an import ban has instead, it merely serves to standardise such to prove why the goods in question would be over-regulation throughout Europe. In harmful for instance to health. This does not addition, special particularities and traditions of place any restrictions on justified health the individual Member States are all lumped protection or any other kind of justified together. This is exactly the opposite of what protection. It merely makes protectionist abuse originally characterized the Single Market. much harder, if not completely impossible. Without doubt, this is one of the essential The Commission must push through this causes behind the increasingly sullen attitude regulation. It is one of the most crucial projects to Europe shown by citizens in general, and to preserve the Single Market. Whether this will entrepreneurs in particular. succeed is dubious: influential circles in the One example of this is the services directive. Member States are already making detailed The original version included the mutual plans behind the scenes to save their recognition of Member State regulations as a protectionist sinecures and overthrow the means of implementing comprehensive proposed regulation. freedom of services – a principle already CEP | Hermann-Herder-Str. 4 | 79104 Freiburg | Telefon +49 761 38693-0 | [email protected] 2 THE EU SINGLE MARKET: FREE MARKETS, PROTECTIONISM AND EXCESSIVE REGULATION stipulated in the EC Treaty. By contrast, the to conceal their failure hitherto to renew their adopted version creates a uniform framework ailing social systems, and get rid of the existing for national scopes of restricting the freedom of pressure to introduce reforms, at least for the services. And as it is already quite clear today time being. that the freedom of services cannot be Quite apart from the fact that such a "European achieved in this way, in article 16 paragraph 4 social model" does not even exist, because the directive opens the doors to extensive social policy differs greatly between the various harmonisation of Member State regulations, in Member States, the attempt to prescribe " a other words to cementing regulation instead of high level of social standards", for example by cutting it back. Here the points have been set in introducing minimum regulations, for two the wrong direction – probably irreversibly. reasons poses a threat to the Single Market as a In this context too, the already mentioned whole and must fail. regulation regarding article 30 of the EC Treaty On the one hand, the harmonisation of social and aiming at preventing protectionist abuse is policy in the less advanced national economies once again of central significance, because which joined the EU in 2004 and 2007 would following the services directive, this is the destroy a cost and thus competition advantage second major attempt by the Commission which up to now has at least partly within a short period of time to assure the compensated for the far lower labour application of the principle of mutual productivity in these economies.
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