Keith Middlemas - Orchestrating Europe (Text Only)

The conflict between the Council and the Commission, latent ever since 1965, produced a condition of immobility, on which the diversity of reforming ideas made little impact – hence the lourdeur of which Giscard frequently complained. In practice, most initiatives were decided by the leading member states, even if the initiative came from the Commission or outside: EMS, Greece’s accession, and responses to the Tokyo/GATT round. Such CAP reforms as occurred were possible only because of Franco-German agreement: the Three Wise Men could not have operated without this backing. And whenever the European Parliament asked for more competence, it aroused deep antipathies among both Gaullists and British Conservatives.

But the European Parliament could and did play successfully on West German Länder aspirations, and those of Italian regions whose politics had sprung vigorously into life in the 1976 local elections. Even before the Parliament used its single, ultimate weapon and rejected the EC’s budget in December 1979, 29it had induced the Council of Ministers to address three important issues: economic disparities, convergence, especially of the regions, and the EC’s transport infrastructure – with a future common transport policy in mind. The European Parliament’s sense of its own dignity and tactical responsiveness increased with direct elections, while some sense of common identity on EC matters also developed between parties in certain countries. This had long been true in West Germany and Benelux and it became so under Italy’s pentapartito governments, before and after Aldo Moro’s death. Karamanlis’s creation of New Democracy can be seen as a bid to create a similar centrist governing philosophy in Greece. What may be called ‘insider parties’ tended during the 1980s to find similar affinities inside the Parliament, while the ‘outsiders’ (all communist parties save in Italy, 30both main parties in Britain, many French socialists and the majority of Gaullists) emphasized inter-governmentalism at the European Parliament’s expense.

Meanwhile the ECJ began to accumulate a body of judgments which increasingly underpinned the Commission’s initiating role. In Kramer (July 1976) it ruled that EC institutions’ competences within the EC extended under the treaties to the international engagements required to fulfil them. In March 1976 came the Simmenthal judgment that defined direct applicability to mean that EC legislation had to be implemented uniformly in all member states, not only through transposition but implementation and enforcement – which implied a direct obligation by governments towards individuals to implement directives. This had a stringent effect not only on backsliding states (Italy being already notorious) but also gave recourse to individuals or firms prejudiced by their own government’s failure. The Court’s 1978 judgment against Distillers’ policy of pricing one brand of whisky differently in different countries forced the company to withdraw from the UK market altogether. And in the area of state aids, where member states had frequently disobeyed rulings with impunity, especially in declining industries such as steel and shipbuilding, the legal revolution begun in the 1960s continued, leading to a sharp increase in the number of instances where the Commission dared to intervene. 31

By giving effet utile, that is interpreting the treaties to give the law its fullest and most efficient effect, with consequences often not obvious in the original texts, the ECJ thus widened the scope of EC law and extended Commission or other competences. Its continuous activity thoughout the 1970s was probably the most important single factor in keeping the sense of ‘Community’ alive in an era of inter-governmentalism.

Simmenthal was perhaps inherent in the Treaties, but Kramer seems in retrospect a more creative interpretation, as does the ECJ’s October 1978 opinion in the ‘foreign policy arena’, that the Commission had competence to use international trade sanctions or embargoes to achieve the EC’s agreed aim. In the Roquette judgment (October 1980) the ECJ laid an obligation on the Council of Ministers to ask Parliament’s opinion – and to wait for it. But all these were overshadowed by the consequences of Cassis de Dijon 1979, 32which established the principle of mutual recognition of members’ own national standards and health or other regulations. The court ruled that a product which was lawfully produced, subject to minimum standards, and distributed in one member state could not be banned from sale in another unless it constituted a clear risk to public health.

The political extent of this battle was not won immediately. In the always contentious area of foods, exclusions and evasions continued, even though the criteria were outside the food standards arena: France ignored both the rules and the ECJ’s judgments by banning lamb imports in 1980, Germany restricted beer under its ancient production regime, and non-fizzy mineral water, 33Denmark for ecological reasons prohibited beer and soft drinks unless sold in recyclable containers, Italy rejected German pasta, not being made with grano duro, Belgian margarine was to be sold only in cubes not rectangles, and so on. Whatever its logical consequences for the generic harmonization policy, the Cassis de Dijon judgment and its sequel, the pressure vessels case which Arthur Cockfield used in the mid–1980s, could not solve all cases. Indeed similar obstacles survive today, in complicated, obscure forms (such as the effects of the German waste and recycling law) requiring in most cases to be abolished one by one.

Yet it is hard to overestimate the significance of the new approach in which the establishment of basic standards and mutual recognition replaced harmonization. From that point on, the Commission sought to collaborate more effectively with member states’ own technical departments and standards agencies, and to relegate Article 100 (harmonization) only to areas essential for the EC as a whole. By insisting on the overriding aims of the Treaty, the ECJ had given the Commission a powerful instrument to break up the huge log-jam of draft legislation stacked up by a decade of unsuccessful detailed harmonization. It may even have saved the EC’s original ethos from the delays for which the Council and its members were to blame; it certainly helped to recover momentum and renewed the internal market’s attractiveness. It also established a golden rule: that future directives and rules should be simpler, less specific, and aimed at setting basic standards in a general context within which national agencies could operate: if they wished, more but not less strictly. 34A long search for general EC competences thus led to an early definition of what subsidiarity (a phrase harking back to 1957 if not the 1890s) might eventually mean.

The second OPEC oil shock forced the crude oil price to over $20 a barrel at the end of 1979, helping to precipitate a severe and prolonged recession. Domestically, the EC’s endemic budgetary crisis was reinforced by the new British Conservative government’s determination to revise downwards its net contribution. Margaret Thatcher’s single-minded advocacy of ‘our money’ galvanized the next Dublin Council in November, so that the fractious disputes about the EC’s budget overran into farm prices and the common fisheries policy. Thatcher took the subsequent compromise solution with ill grace, letting it be seen as merely a temporary expedient.

In that same, particularly gloomy, year, the EC’s international context was disrupted, firstly by events in Iran (the Shah’s fall, the seizure of American hostages, and the end of Carter’s presidency), then by the Soviet invasion of Afghanistan (roundly condemned by all EC members in January 1980) and thirdly by the new Reagan presidency’s apparent intention (with Thatcher’s support) to revert to an arms race in order to counter and if possible permanently impair Soviet superpower capacity. Tensions rose at the same time in the Middle East and in Poland, where Solidarity’s early successes – though partially reversed by General Jaruzelski’s military dictatorship – exposed both the limits of Soviet power in eastern Europe and the unstable nature of Comecon, the state trading system linking Soviet and satellite states.