Festschrift für Fritz W. Scharpf - MPIfG

Héritier · Containing Negative Integration 105
with respect to particular policy areas as well: The Protocol to the Amsterdam
Treaty reminds the Commission and the ECJ that public broadcasting
in member states serves the democratic, social and cultural needs of the
member states’ societies. The protocol lays down interpretative provisions
according to which the Treaty
does not rule out the funding of public-service broadcasting … qualified by the
proviso that such funding does not affect trading conditions and competition in
the Community to an extent which would be contrary to the common interest.
(Scharpf 1999: 162–163)
Similarly, Scharpf draws attention to a declaration with respect to public
credit institutions in Germany, which states that they do not violate the
Community’s competition rules if their efforts to promote infrastructural viability
do not adversely affect competition more than is absolutely necessary.
Scharpf points out that the Commission was hesitant to intervene in
the case of public banks, and only proceeded cautiously in the case of public
broadcasting.
The ECJ has taken a similar approach. It does not readily apply the syllogism
of competition law in areas where public service questions are politically
salient. “The Court itself had begun to strike a balance between the
goals of competition law and the purposes served by national service public
arrangements … well before the Amsterdam Summit requested it to do so”
(Scharpf 1999: 168). At the level of Council directives as well, Fritz Scharpf
notes attempts at containing negative integration, although here conflicts of
interest among member states may block such attempts more easily. In the
case of the Posted Workers Directive, member states of destination may require
all firms operating on their territory to pay at least the minimum
wages generally applicable at the place of work. Hence the legal consequences
of service liberalization are suspended – “provided that the country
affected is interested in, and domestically capable of, taking advantage of
that option” (Scharpf 1999: 164). All in all, at the end of his book, Fritz
Scharpf sees some containment of the dynamic of negative integration on
national problem-solving capacities.
My conclusion is … that the danger arising from the direct (legal) effect of
negative integration on national problem-solving capacities is now better understood
and less likely to get out of hand than could have been expected a few
years ago. (Scharpf 1999: 168)