The Old Approach

This part of the essay will be concentrated around the ideas related to the issue of the old approach. We will try to show how the old approach transformed throughout the years but more importantly why it has failed and what the reasoning behind it was. Firstly, one will be asked to consider the beginning of such process which can be traced back to 1969, when the General Programme for the elimination of technical barriers to trade had been set up. Next, we will concentrate on particular EU directives which shaped the image of traditional approach. The concern will be given to 1973 Low Voltage Directive and Information Directive adopted in 1983. One will be also asked to consider how this particular system dealt with the issue of delegation of powers by the Council which was necessary in terms of creating bodies such CEN and CENELEC responsible for lying down technical standards and regulations. As J. Christian argues “the construction of common market has always been recognised to imply the removal of barriers to trade constituted by innumerable amounts of technical product specifications incorporated in Member States’ laws and administrative provisions not covered by Article 28 EC”.¹

As it was mentioned earlier, in 1969 the General Programme for the Elimination of technical barriers to trade has been introduced. This date can be arguably perceived as the starting point of the Old Approach era. The purpose of this programme was to eliminate technical barriers to trade, which seemed to be the most important factors while considering the free movement of goods within community. The approach was based on three integrated elements such as mutual recognition of inspections, procedures for adapting Community legislation to technical progress and last but not least the need for community legislation being harmonised by national legislation in each industrial sector. The most important factor was to replace individual member states’ laws by a single piece of community legislation, which could be recognized mutually by all the member states involved.

Unfortunately, although the idea behind it was great, the programme, because of its lengthy legislative process, failed miserably. The most dominant criticism of the old approach was that it was too laborious and time consuming.² The unanimity principle in Council decision making being used at this time, created the obstacle which one should bear in mind while considering the issues of standardization. The whole legislative process was very slow and unsatisfactory. By the time the legislation process was finalized, standard have been already outdated.

Then, in 1973, The Low Voltage Directive has been launched and almost from the very beginning it was perceived as a pioneering exercise in new regulatory techniques.1 The Low Voltage Directive ensured the free circulation of electrical products providing that electrical equipment could not be placed on the market if it endangered the safety of those using them. On the other hand its requirements were very straight forward so the whole legislative process could be concluded much faster and within reasonable period of time. The Law Voltage Directive enunciated things which were to come in the close future but at this particular moment was perceived as a visionary and innovative move. It was one of the first EU directives overall. One could even argue that although the New Approach had not yet been developed, above directive and its basic principles almost mirrored those from the New Approach era.

The other important factor which one has to keep in mind while considering the subject matter of the Old Approach is the issue of the delegation of powers. As soon as the 1969 General Programme for the Elimination of Technical Barriers to Trade has been launched, this particular theme became increasingly important in EU legislative process. The Members of the united Europe knew that the only effective way to establish themselves as a fast moving and developing community would lead through creating nongovernmental private bodies, which would have all the necessary executive powers. As Ernst Steindorff has argued in one of his books, “in the area of product safety it has long been shown that the Community is forced to delegate functions of standardisation and certification and to limit itself to the formulation of essential safety requirements."⁴ Steindorff himself together with other German Community lawyers tried to argue that such development of European law was highly dangerous and attracted constitutional criticism. The decision in Meroni case⁵ decided in 1958 is one of the first leading authorities on this subject matter. It was argued that institution which acts beyond its powers is acting unlawfully. It follows from this case that where powers are given to the particular institution such as Council of European Union, that institution may only delegate powers which are within its scope and what is more important which are properly executed. The other important stage in terms of delegation of powers seems also to be the decision in Cremonini and Vrankovich case⁶ from 1980. Here things started to get more complicated as the court decided that Member States must obey the regulations which were imposed on them by nongovernmental private body established in another Member State. And notwithstanding the fact that such delegated body did not have any representative in interested Member State Country. As one could see from above examples, the issue of delegation of powers was a major factor in development of standardisation process. It can be argued that long before the commencing of the New Approach era some basic principles have been already introduced. Unfortunately, as it was mentioned earlier, obstacles such unanimity principle and long legislative process did not allow for expected transformation.

The free movement of goods, as can be found in the Summary of Report by the Commission on the Operation of Directive 83/189/EEC is a cornerstone of the Internal Market and the elimination of technical barriers is a major condition for its proper operation. A notable example, one can read later, of an instrument which enables the Community to avoid the introduction of new barriers is Directive 83/189/EEC.⁷ In the next chapter of this essay we will try to deepen our consideration around this matter as this topic directly touch upon the issue of The New Approach which will be considered below.

This analysis makes it apparent that all the negative aspects of old approach revealed that the current state of harmonization is not sustainable and some new techniques had to be developed. The failure of the harmonization at the Community level and the problems to overcome already mentioned were the ‘laborious and time consuming legislative process’⁸ Harm Schepel explains nicely the reason behind the reasons why the old approach failed.

‘as demands on the regulatory machinery of the state become ever greater, the capacity of the legal system to respond to these demands decreases more or less proportionally. This in turn leads to an erosion of the coherence authority and effectiveness of law, on the one hand, and to the social problems associated with dysfunctional regulation on the other’⁹

In other words, complexities within EU legal system can result in inability of the legislative fraction of government to respond effectively if not governed properly. Michelle Everson argues that this threshold of the governance having influence on social problems is really low. From Everson analysis is apparent that even arguably functional governance system can lead to unforeseen undesired social consequences because of the lack of consideration to collateral effect of legislation.¹⁰

New Approach on the other hand, seems to address issues arising from normative supranationalism¹¹.

It was introduced as a result of unsatisfactory harmonization of the technical barriers within the single European market and proved to be a significant improvement of the whole area of imposing of essential safety requirements on the goods marketed within the EU. In spite of some nervousness at the beginning¹², the New Approach proved to be success. Josef Falke comments, that the ‘New Approach to Technical Harmonization and standards has proven to be decisive step towards the effective dismantling of technical barriers to trade within the policy towards the aim of completing the Internal Market’.¹³

As he further adds ‘The New Approach has overcome the traditional concept to regulate all product-specific details at the highest political level in Community directives¹⁴. The decision making powers about the standardization within EU were delegated to private standardization agencies e.g. CEN, CENELEC, ETSI. This essay argues that although the New Approach inherently contains some unresolved problems, nevertheless these problems seem to be procedural rather than substantial without any apparent damaging effect resulting from possible altering of the balance of powers and therefore the constitutional principles within the EU. On the contrary, New Approach to Technical Harmonization had proved to be effective way to resolve the problem arising in Cassis de Dijon¹⁵ case. This difference was described as disparities between the standards of different member states. This would result, as German government in this case argued into the situation in which ‘requiring Germany to accept French alcohol content laws would mean that one country could set standards for all member states, thus precipitation a lowering of standards throughout the EC’¹⁶

The European Union treaty allows certain limits to restriction on free movement on goods with reasoning around the Art 28 or based on inter alia public health and defence of the consumer. Although there are other restrictions like for example balance against fiscal supervision or fairness of the commercial transactions and perhaps the fairness of commercial transaction would be also interesting point to consider, nevertheless the analysis of efficacy of the New Approach will be focused mainly on the issue of administrative law. And although consumers have their say in the standardization process and thus improving the legitimacy of standardization work, the main argument will be directed around the procedural or substantive law. But are these two areas not interconnected ?

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