European Law Journal, Vol. I , No. I , March 1995, pp. 84-85 0 Basil Blackwell Ltd. 1995, 108 Cowley Road, Oxford OX4 IJF, UK and 238 Main Street, Cambridge, MA 02142, USA

Debate

Comment on Manfred E. Streit and Werner Mussler: ‘The Economic

Constitution of the European Community - From ‘Rome’ to ‘Maastricht”

Claus- Dieter Ehlermann *

The paper by Professor Streit and Mr Mussler is a strong plea for the original free market constitution of the Rome Treaty and against the new interventionist elements of the Maastricht Treaty. En passant, the Single European Act is considered to be an important stepping stone towards ‘integration by intervention’.

I share neither the authors’ premises nor their conclusions: European integration begins with a highly dirigiste Treaty, the ECSC Treaty

(Rome, 1952). No later Treaty ~ not even the Euratom Treaty (Rome, 1958) ~ provides for similar interventionism. It is remarkable that during the last steel crisis, the Commission simply refused to use the quota system (Article 58 ECSC) which had still been applied in the 1980s.

The EEC Treaty is certainly less dirigiste than the ECSC and Euratom Treaties. But it is not true that it clearly represents a constitution committed only to the market principle. The authors refer to the common agricultural policy. They might also have mentioned the mandate to establish a common transport policy and a common commercial policy. In addition, all those familiar with the evolution of the juris- prudence of the Court of Justice know that it was the Court which ‘constitutionalized’ the four fundamental freedoms, which interpreted widely the prohibition of measures of equivalent effect and of restrictions of the provision of services and the free circulation of persons. It was again the Court which declared that Member States (and not only undertakings) are bound by the ‘effet utile’ of Articles 85 and 86 EEC and which recognised that service monopolies have to be justified both with respect to fundamental freedoms and competition principles. None of these principles would

* Director General, DG IV Competition, Commission of the EC.

March 1995 Debate

have been agreed by the Member States in 1957. They are the result of interpretation, not of negotiation.

Contrary to all expectations, the Single European Act has been a huge success: without it, the Single Market Programme - the most ambitious deregulation exercise in history - would not have occurred. Article lOOa EEC is not an open door for intervention, but a special provision for the establishment of the internal market which to that extent replaces the pre-existing Article 100 EEC. Its broad scope results from the almost utopian definition of the internal market concept: an area without internal frontiers (Article 8a EEC).

It is true that the Single European Act introduced for the first time into the EEC Treaty policies which were already established earlier under Article 235 EEC: it consolidated these activities without really innovating, except that it allowed for qualified majority voting. The Maastricht Treaty continues on this road. Why are these policies legitimate as long as they are pursued by the Member States at the national level, while they become illegitimate if enacted by the European Union? Is it conceivable that the poorer peripheral Member States would have agreed to the Single Market concept without some sort of support from the ri.cher Member States (Germany spends the highest amount of aid for R&D in the EU!)? Is it realistic to assume that the Member States commit themselves to an Economic Union in which they have lost control over instruments of industrial policy without finding at least some substitutes for these instruments at the EU level?

The neo-liberal views expressed in the Streit/Mussler paper are representative of a strong current among German academic writers (cf their bibliography). Their views are reflected neither in the German constitution, as interpreted by the German Constitutional Court, nor in German economic reality. They are of course a useful reminder of the dangers of interventionist policies. But they should not distract from the fact that constitutions have to be open for the pursuit of different economic policies. Otherwise there would be no constitutions agreed by different political parties or states. Consensus building is an indispensable element of any political system, whether at the regional, the national, or the European Union level.

0 Basil Blackwell Ltd. 1995 85