Minimum Harmonisation
The development of a legislative technique in EU law
PhD Project
I aim to analyse the reasons for the establishment of minimum harmonisation as a legislative technique of approximation of laws in the EU. Minimum harmonisation is the definition of a common minimum standard from which the Member States can deviate to incorporate stricter measures – it provides a floor but not a ceiling. The technique allows advances in national law making and respects national particularities, but it also risks perpetuating obstacles within the common market.
The techniques for the approximation of laws changed significantly during the development of the Community. According to the established narrative, whilst in the period after the signing of the Rome Treaties the approach of the Commission and the Council of Ministers was to pass very detailed directives, a more flexible method was needed as the Community grew geographically and its legislative activities spread to new areas of law, such as environmental or consumer protection law, from the 1970s onward. However, discussion and examples of legal harmonisation using minimum standards can be found even in the early period of European integration. I try to trace these early developments in order to demonstrate that minimum harmonisation was a part of the emerging ‘canon’ of harmonisation techniques right from the start. I also investigate the question if, and in what ways, the practices of international law sparked the use of this technique.
By studying the drafting process of proposals for directives in the Commission and their discussion in the Council, I analyse why clauses permitting stricter laws by the Member States were inserted. In this way, I intend to shed light on the question to what extent the approximation of laws was influenced by important events of integration history, such as the 1965-66 crisis of the ‘empty chair’, or judgments of the ECJ, for example the Cassis de Dijon judgment of 1979, and what political goals the Commission pursued with the approximation of laws.
