Festschrift für Fritz W. Scharpf - MPIfG

Héritier · Containing Negative Integration 113
Interestingly, the Commission 5 refrained from using one of its most
powerful hierarchical instruments, the Commission directive, in the rail, energy
and postal services sectors. Having applied Commission directives extensively
in telecommunications to liberalize the sector – an endeavour in
which it was supported by the ECJ (Schmidt 1998) – the Commission subsequently
became much more hesitant using this instrument in the field of
energy, rail and postal services. The lesson drawn by the Commission from
telecommunications regulation was not to use the instrument in the face of
stiff opposition from a majority of member states (Schmidt 1998). The political
costs of this instrument of hierarchy were obviously higher than one
might have expected at first glance.
What was the role of the preferences of the second “hierarchical” actor,
the ECJ? The turnabout of the Court in the thrust of its rulings has been
analyzed extensively by legal experts (Gerber 1994; see also Moral Soriano
2002) and is mentioned also in Fritz Scharpf’s analysis (1999). The Court
rulings on Corbeau and Almelo qualified the notion of general interest
services under Art. 86.2 for the first time and accepted the possibility that
“the granting of monopoly rights to the postal service and regional suppliers
of electricity … might be acceptable if justified by a need to cross-subsidize
unprofitable services in rural areas” (Scharpf 1999: 166). Similarly and
more recently, the Preussenelektra ruling (March 2001) clearly stated that
the fixed prices under the German “Stromeinspeisegesetz”, that is the national
legislation requiring electricity suppliers to purchase electricity at
minimum prices, are not to be considered state aid. And referring to services
of general economic interest in its judgement of May 2001 (Posta Italiana
C-340/99), the Court ruled that postal fees must enable compensation to be
paid for all losses that may result from operating the universal postal service.
Consequently, a firm providing an express mail service may be required
5 If one considers Commission preferences beyond the mixed economy, the Commission
has been an outright advocate of redistributive policies, albeit without much success, because
member states especially defended such policies as their sovereign territory. In response,
the Commission made frequent, rather successful, attempts to sneak redistributive
policies in through the back door. A case in point is the poverty programme which the
member states did not want to continue and which the Commission reintroduced as a programme
for marginal groups, including refugees, homeless people, handicapped people
and women (Bauer 1999; Héritier 2001b). However, when it comes to the former public
monopolies, the Commission is predominantly found in the camp of the liberalizers and,
where the support of general interest goals is concerned, as will be shown, it has had to be
pressed by other actors.