Harm Schepel

The New Approach to the New Approach: The Juridification of Harmonized Standards in EU Law

In July 2012, the Court of Justice rendered the judgment in Fra.bo, a case about the liability of a German private standards body under the free movement of goods. In October 2012, the European Parliament and Council adopted Regulation 1025/2012 on European Standardization, the long awaited formal legal framework for the cooperation between the Commission and the European Standards Organizations. It is very unlikely that either the Court or the Union legislators were planning in these instances to affect a radical overhaul of the New Approach to technical harmonization. And yet, that is exactly what they did. The result of Fra.bo and the new Regulation is to subject European harmonized standards to judicial challenge by any disgruntled manufacturer of products excluded or adversely affected by the contents of such a standard. To have each and every manufacturer or importer complain in each and every court of the Union about each and every harmonized standard that adversely affects its position on the market, however, is much more likely to lead to wholesale paralysis than it is to increase the procedural integrity of European standardization.In July 2012, the Court of Justice rendered judgment in Fra.bo, a case about the liability of a German private standards body under the free movement of goods. In October 2012, the European Parliament and Council adopted Regulation 1025/2012 on European Standardization, the long awaited formal legal framework for the cooperation between the Commission and the European Standards Organizations. It is very unlikely that either the Court or the Union legislators were planning in these instances to affect a radical overhaul of the New Approach to technical harmonization. And yet, that is exactly what they did. The result of Fra.bo and the new Regulation is to subject European harmonized standards to judicial challenge by any disgruntled manufacturer of products excluded or adversely affected by the contents of such a standard. To have each and every manufacturer or importer complain in each and every court of the Union about each and every harmonized standard that adversely affects its position on the market, however, is much more likely to lead to wholesale paralysis than it is to increase the procedural integrity of European standardization.

Argentina — Import Measures: How a Porsche is Worth Peanuts

The dispute Argentina-Measures Affecting the Importation of Goods concerns a series of measures imposed by Argentine authorities on economic operators as a condition for obtaining import licenses. These measures were introduced with the goal of advancing the Argentine government’s stated policies of re-industrialization, import substitution, and elimination of trade balance deficits. From a legal point of view, the least interesting feature of the dispute was the substantive compatibility of these measures with Article XI:1 GATT as they clearly constituted import restrictions. Identifying and classifying the measures involved, however, proved more challenging: based on vague policy guidelines, devoid of any legal basis, and consisting largely of wholly discretionary ad hoc action by the authorities, clouded in confidential obscurity, the measures escaped familiar categories and distinctions of WTO law. From an economic perspective, although Argentina’s measures appear to have had no impact on its overall imports, they imposed large costs on foreign companies, as well as on Argentine importers and consumers.

The Bank, the Bond, and the Bail‐Out: On the Legal Construction of Market Discipline in the Eurozone

The ‘logic of the market’, so holds the Court of Justice, is the standard of legality of financial assistance to indebted member states under EU law and, ultimately, the legal justification for strict conditionality and the imposition of austerity. This logic of the market, though, is different from actual market behaviour. Austerity, it turns out, is not the inevitable response to market pressures but a function of political substitutes for market discipline (Pringle) and technocratic truth seeking about the ‘correct’ price of debt (Gauweiler) which the Court has frozen into law. The perverse consequence of making the modalities of financial assistance dependent on the ‘logic of the market’ is, moreover, to render the assistance as ineffective and expensive as possible. ‘The logic of the market’ in the Courts case law is best seen as punitive and cynical politics masquerading as inept economics.