Festschrift für Fritz W. Scharpf - MPIfG

Héritier · Containing Negative Integration 103
2 Negative Integration Prevails
The more specific claim of the argument that negative integration prevails is
that abolishing tariffs and quantitative restrictions on trade among member
states and establishing free and undistorted competition have been at the
centre of European law-making. It has been possible to pursue this lawmaking
agenda relatively easily, as it entails “low political visibility through
individual interventions against Treaty infringements by the Commission
and the preliminary ruling of the European Court of Justice” (Scharpf
1999: 50). Positive integration, on the contrary, depends upon the agreement
of member state governments in the Council of Ministers and, increasingly,
upon the acquiescence of the EP as well. “This fundamental institutional
difference is sufficient to explain the frequently deplored asymmetry between
negative and positive integration in EC policy-making” (Scharpf
1999: 51).
In addition, there is the fact that the Treaties, by stating the goal of establishing
a common market, have defined very specific measures for
gradually eliminating tariffs and quantitative restrictions on imports (Arts.
12–17, 30–35 of the Treaty Establishing the European Community, TEC).
They all can be achieved by a non-political decision-making route.
By contrast, the prohibitions against national regulations operating as non-tariff
barriers … were not only worded less precisely, but also qualified by the numerous
and in part rather vague “public order” exceptions of Art. 36 TEC.
(Scharpf 1999: 51)
These prohibitions could only be overcome through “positive” harmonization
decisions by the Council. Likewise, competition law was relatively precise
with respect to private enterprises (Arts. 85–87 TEC), but less clear and
shot through with important exceptions with regard to the prohibition against
competition-distorting state subsidies (Arts. 92–94 TEC). Even more ambivalent
is the wording of Art. 90 TEC [new Art. 86 TEC – A.H.] which, in paragraph 1,
obliges member states to respect the rules of competition law with regard to
“public undertakings and undertakings to which Member States grant special or
exclusive rights”, but in its paragraph 2 exempts undertakings entrusted with the
operation of services of general economic interest or having the character of a
revenue-producing monopoly. If these were to be touched at all, one could have
thought that any moves toward liberalization would depend upon “political action”
by the Council of Ministers – just as political action had been necessary to