The Fragmentation of the Single Monetary Union - Essay Example

The extent to which economic integration within the EU has been subordinated to the achievement of political objectives Introduction The free movement of goods is a fundamental cornerstone of the EU defined under the Treaty of Amsterdam as an important pillar of the internal market in Article 14 (www.eur-lex.euroa.eu). However, the inherently complex and individual nature of member states within the EU framework has created a system facilitating conflict with the EU monetary agenda in light of national political interests (Ronmar, 2008:199). Moreover, whilst the initial goal of the EU was to provide mutual security and co-operation amongst member states in the aftermath of the Second World War; the legal, economic and political framework of the EU is rooted in the Franco-German tradition, which has lent itself to EU tensions with the political agendas of certain other member states such as Britain (Lippert, 2001, p.114). The fragmentation of the single monetary union and the EU agenda with national political agendas has become increasingly prominent in relation to the EU enlargement programme particularly with the controversial Turkey accession question remaining uncertain (Lahav, 2004, p.113). Indeed, Artis & Nixon suggest that the EU’s economic objectives in the last decade have reached crisis point on grounds of the bicycle theory paradigm, where there is a “slowing of momentum precedes collapse, or in this case crisis” (Artis & Nixon, 2007, p.1). In supporting their proposition, Artis and Nixon comment that as follows: “the list of setbacks is rather a long one. The negative outcomes of the referenda on the European Constitution in France and the Netherlands in 2005 must head the list because of their symbolic significance…… these cannot but induce a loss of confidence in the viability of the European Union” (2007, p.1). They further argue that the EU relies on co-ordination and mutual co-operation of states and that the enlargement of the EU and free movement within the labour market rules has fuelled numerous derogations from certain member states (2007). This in turn has raised the question as to the extent to which national political objectives are actually taking precedence to EU economic objectives. For example, Artis and Nixon refer to the fact that many member states opt out or derogate or suspend certain obligations to address national political agendas such as certain member states derogating from the free movement of workers provisions for a period of seven years and the conditions of former communist Eastern European states as part of EU enlargement (2007). With regard to the latter, the continuation of the sensitivity over Turkey and reality of corruption and political agenda in EU friendly Ukraine clearly fuels the debate as to how far national objectives can successfully operate in conjunction with EU economic policy (Wesley Scott, 2006,, p.99). As such, Artis and Nixon argue that the root of the Union and mutual objectives are becoming secondary to national political interests, which in turn risks negating the Union’s objectives of a monetary union (2007). The focus of this paper is to critically evaluate the extent to which economic integration within the EU has been subordinated to the achievement of political objectives. To this end, it is firstly submitted that the efficacy of EU economic objectives are inherently dependent on its legislative policy and arguably this is the crux of the imbalance in pursuing EU economic agenda vis-à-vis national political objectives. This proposition is further supported by the assertion of Artis and Nixon that the: “European Union relies upon co-ordination of policies across the Member States, it has limited powers of its own; the effectiveness of what it can do through the route of co-ordination is limited and it is not quick” (Artis and Nixon, 2007, p.1). For example, the EU objective of free trade, economic integration and a nation wide single monetary policy has additionally heightened EU involvement in regulation of EU competition policy, which often fails to address national agendas, which will be discussed further below. Therefore, in evaluating the national versus supranational EU economic supremacy debate I shall firstly consider the institutional perspective as regards the EU role in regulating member states in legislation implementation which is instrumental in furthering EU economic objectives, followed by an evaluation of how the political agendas of EU member states has changed the dynamic of the EU framework in the previous decade in section 3. In section 4, I shall contextually evaluate the various causal factors contributing to the changing dynamic with particular reference to the EU competition policy and its impact on emerging markets within the EU. 2. Economic Integration & Competition Policy It is submitted that economic integration and the policy making of the EU is inherently dependent on legislation and therefore a central issue of importance is the ability of the EU institutional framework to effectively implement and regulate EU economic objectives at national level (Artis & Nixson, 2007). As an initial observation, Baimbridge and Whyman posit that the organisational model of the EU with the roles of the Commission, European Parliament and the European Court of Justice is its inherent weakness in achieving EU harmonisation (2008, p.8). In supporting this argument, they refer to the EU regulatory model as the democratic deficit of the EU framework “in terms of direct influence afforded to European citizens over the decision making process of the principle institutions” (2008, p.8). As such, the institutional framework clearly lends itself to conflict with the national political framework of member states. For example, if we consider the nature of EU legislation, Regulations and Treaty provisions are automatically part of national law under the principle of direct applicability (Craig & Burca, 2008). Alternatively, directives require national action and can become contentious particularly as they expose member states to enforcement and state liability actions. For example, Article 226 of the Treaty establishing the European Community (TEC) sets out procedure for enforcement of infringement, which can force Member States to comply with their obligations under Community law (Craig & Burca, 2007). In cases of non-compliance the Commission can further institute proceedings against Member States before the European Court of Justice (ECJ) to seek a declaratory judgment, which in turn can be used to impose sanctions on the offending member state (Shaw 2000). Moreover, the Commission can further rely on the provisions of Article 211 EEC as “guardians of the Treaty “ and has to ensure proper application of Community law, in line with Article 211 TEC (Borissova, 2007). The Article 226 procedure enables the Commission to pursue its objective of policing the application and compliance with the Treaties and secondary Community law obligations (Chambers et al, 2006). Moreover, the Commission has taken several measures to adequately remedy problems encountered in the transposition, implementation and enforcement of directives (Craig & Burca, 2007). These include regular publication of a calendar for transposition and annual reports to monitor the application of community law. Borissova further comments that “by launching enforcement action against a Member State, the Commission is not asking the ECJ to recognise a Member’s State’s intention to breach the law but to deliver a declaratory judgment no the latter’s failure to comply with its Community obligations” (2007). Whilst the initial judgment of the ECJ is declaratory and carries no specific sanctions per se (Borissova, 2007), Member States are nevertheless placed under a further obligation under Article 228 to comply with the judgment by taking necessary measures (Borissova 2007). For example, in the case of Commission v Italy ([case 48/71 [1972] ECR 527) the Commission determined that because Italy had failed to comply with the Court’s judgment in the first instance under the Article 228 procedure (ex 171), judgement should be given in favour of breach of Article 228. It was further held that notwithstanding the fact that prior to final judgment Italy had complied with the original decision; Italy had still failed to comply with Article 228. However, the White Paper on European Governance published by the Commission in 2001 further highlights that the primary responsibility for the application of Community law lies with national administrations and courts in the Member States (COM (2001) 428). Therefore, the primary objective of enforcement of actions against Member States is to monitor compliance and respond to non-compliance. As such, the Commission aims to encourage voluntary compliance of the Member States. Moreover, the underlying sentiment of the Commission’s strategic objectives for 2005-2009 is that vigorous pursuit of infringement actions under Article 226 are “considered critical to the credibility of European Legislation and the effectiveness of policies” (2009). Additionally, the primacy of EU objectives and the enforcement role of the Commission clearly set up the organisational model of the EU for conflict between EU agendas and national interests, which will inherently influence member state incentives to implement EU policy oriented legislation (Artis & Nixson, 2007). This problem is further highlighted by the fact that the Commission and the ECJ appear to be taking a more proactive role in using enforcement actions to implement policy objectives, thereby perpetuating the tension between EU and national agendas (Vig & Axelrod, 1999 p.76). 3. Changing Dynamic of Relationship between EU and Member States. As highlighted above, Artis and Nixson suggest that the cracks in the relationship between the EU organisational model and its members points towards an EU heading for crisis particularly with regard to the furtherance of the monetary union (2007). They refer to failure of the Stability and Growth pact as a prime example to underline the argument that the stability of the EU inherently relies on co-ordination and mutual co-operation between member states (Artis & Nixson, 2007, p.1). Artis and Nixson further comment that notwithstanding the role of organisational model in regulating member state compliance with policy motivated EU legislation; ultimately the EU framework is influenced by the political clout of certain members (2007, p.2). As such, the practical impact of EU economic objectives through legislative initiatives is not so straightforward. For example, Artis & Nixson highlight the fact that many member states opted out or suspended certain obligations to address national political agendas such Italy’s derogation from the free movement of workers provisions (p.1). As such, Artis and Nixon argue that the root of the Union and mutual objectives are becoming secondary to national political interests, which in turn risks negating the Union’s objectives of a monetary union. (Artis and Nixon, 2007, p.1). Additionally, arguably the crux of the problem is that EU agendas are dependent no mutual co-operation. However the EU economic objectives are single minded in addressing policies geared towards “the europeanization of states” and can ignore the national interest and in certain sectors the impact of globalisation in business as evidenced by the rigidity of the EU competition policy (Budzinski, 2008, p.124) Alternatively, Artis and Nixson suggest that it is completely dogmatic to suggest that the EU economic objectives have not been at all useful in economic EU progress and suggest that “there are powerful basic reasons why the Member States should want to co-operate and why they should want to improve their cooperation and individually obtain better results” (p.8). Nevertheless, the future of the EU particularly in relation to economic policy suggests a deeper fragmentation of the EU, with the Turkey question looming and Artis and Nixson suggest that “if the next years are tilted towards deepening for this reason, once possible result would be the increased use of variable geometry arrangements to accommodate the more divisive disagreements that would be revealed” (2007, p.2). With regard to the UK position, they further suggest that UK’s position within the EU agenda may become uncertain particularly in light of the apathy towards the Euro issue (Artis & Nixson, 2007 p.2). In supporting their proposition that achievement of the EU economic policy has become increasingly tenuous, Artis and Nixson highlight the central areas of the dichotomy between EU economic objectives on the one hand and political objectives as follows: 1) Economic integration and policy making; 2) Emerging markets and competition policy; and 3) EMU (2007, p.5). As highlighted above, effective integration is intrinsically intertwined with effective legislative implementation and regulation of compliance. Additionally, Artis and Nixson suggest that the EU economic integration is inherently influenced by political agendas, which again pits the more powerful member states and their agendas against the less powerful member states (Artis & Nixson, 2007, p.5). These political divisions have become more of an issue as a result of a continued EU enlargement programme, with member states all trying to further their own objectives. In highlighting this fundamental point, Artis & Nixson observe that: “The EU has become a much larger organisation than it was when founded by six states in the early 1950s. its policy remit has extended from coal and steel to most areas of domestic and foreign policy as well as home affairs. The EU is no longer a one size fits all” organisation. Some states are absent from EMU others from defence co-operation. However the core remains around the single market, of which all states are full members. The Franco-German relationship is no longer the bedrock of the integration process. The relatively weak economic performance of these two states in the Eurozone has reduced their influence on economic policy within the EU in recent years. ….The politics and institutions of the EU have evolved considerable over the years and their importance in understanding the economics of the EU remains as important as ever” (Artis & Nixson, 2007, p.33). If we consider the UK’s position within this complex framework, Baimbridge and Whyman (2008) argue that the EU’s relationship with Britain has been difficult particularly in light of the EU as a distinct entity in comparison to the Britain’s alignment with other international organisations such as the IMF, NATO and the UN (p.8). Additionally, Baimbridge and Whyman assert that from the beginning the overall objectives of the EU were rooted in furtherance of economic objectives, however the differences in political frameworks of certain states have fuelled problems in achieving stability and unanimity on important issues such as tax harmonisation, border controls and foreign policy (2008, p.8) Additionally, Baimbridge and Whyman comment that essentially from a British perspective, the EU “project” is rooted in a continental cultural heritage which is contrary to Britain’s historical links to the US and its empire, and the individualistic nature of British culture (2008, p.23). This in turn has created problems for a UK that has distinct economic structures to its mainland European counterparts. For example, Baimbridge and Whyman highlight the point that the British economy is rooted in the financial sector and smaller and capital intensive agricultural sector and trades with many non-EU countries and that “its liberal competitive instincts align it much more closely with the United States than with the corporatist traditions of Western Europe”. (2008, p.23) Additionally, Britain’s financial system is clearly at odds with the regulated labour markets and corporal management structures of mainland Europe as evidenced by the distinction between the civil law systems of the Franco-German tradition member states in contrast to the common law system of the UK. It is submitted that this inherently impacts the financial environment within which businesses operate and clearly fuels tension between EU economic objectives and the national agenda. Indeed, Vermeulen highlights that in terms of the legal framework within which businesses operate, the judiciary would appear to have a more proactive role in formulating the law in contrast to the limitations of civil law codes (Vermeulen, 2003:43). On this basis, it would appear that the flexibility of the common law system enables the legal system to continuously develop to address commercial realities facing businesses. Furthermore, in the civil law tradition, the legal codes are inherently narrow to economic development in contrast to judicial discretion in law making in the common law system. This argument is further supported by the proposition of Vermeulen that comparative empirical studies in common law and civil law jurisdictions suggest that legal principles addressing corporate shareholders and creditors in common law jurisdictions are more effective than in civil law jurisdictions (2003:44). Furthermore, in considering the distinction between the common law and civil law tradition with regard to the legal framework for businesses, Graff refers to the “law and finance theory” which suggests that a country’s legal system is instrumental in either facilitating or hampering financial development and that “the major conclusion from the literature is that the common law system generally provided the more favourable basis for financial development and economic growth, and on the other hand the French branch of the civil law tradition is the least favourable” (Graff, 2005). In terms of the differences these systems have posed for the environmental framework for business development, it is submitted that the central differentiating factors are the increased recognition of individual rights and jurisprudential flexibility under the common law system. To this end, Vermeulen posits that the common law systems of the United States and UK have fuelled massive equity markets in comparison to the civil law traditions of Germany and France; where “in response to poor investor protection, insider coalitions of shareholders or wealthy families control the firm” (2003:44). Additionally, in the civil law jurisdiction, there is less flexibility, which lends itself to an entrenched legal code that fails to address continuously evolving business realities (Singh et al, 2001). This highlights the inherent problem of attempting to implement EU economic harmonisation in member states with national political and economic agendas. This intrinsic flaw in the dependence of mutual member state co-operation clearly undermines the stability of achieving EU economic objectives, which is further compounded by the debate as to whether such competition regulation facilitates EU economic integration or whether the EU competition regulatory regime is out of touch with business reality, which I shall now discuss. 4. EU Economic Integration & Competition Policy The debate regarding EU economic objectives and EU competition policy is further propagated as a result of the impact e-commerce on traditional business models and the focus of this section is to critically evaluate the extent to which the competing ideologies of business and integration motivated competition policies of the EU work impact businesses operating within the EU framework. It is submitted that this issue is integral to considering the extent to which national political objectives are beginning to override the importance of EU economic objectives. For example, the evolution of the internet business model through the proliferation of e-commerce has raised novel legal issues, which highlight the competing ideologies at the centre of the debate pertaining to competition law and in particular the interpretation of Article 82 (Craig & De Burca, 2007). This has become increasingly relevant in relation to the need to protect consumers through effective competition on the one hand, whilst facilitating the development of innovation and new markets has brought the debate regarding Article 82 and the need for reformulation and categorisation of existing EC competition rules in order to address business realities (Jones et al, 2007). However, the inherent nature of these new market spaces is the rapid pace of technological change (Jones et al, 2007 at p.55). Moreover, Jones et al further argue that these new economy industries have created problems for pre-existing EC competition law principles (Jones et al, 2007 at p.55). Therefore, this highlights the point that within the emerging market model in the digital era, the EU competition policy geared towards furthering economic integration may be for markets as opposed to being within pre-existing markets and therefore competition will be targeted towards replacing the dominant firm. To this end, whilst a degree of regulation can be applied, these competing ideologies have raised the issue as to how ordinary competition law can be satisfactorily applied to the new economy and to what extent EU competition policy is reconcilable with legitimate business objectives particularly at national level within a global business paradigm (Ahlborn et al, 2006). As such, Ahlborn et al propose that there is a pressing need for the application of competition rules to be revised to facilitate dynamic competition needed in these emerging markets(Ahlborn et al, 2006). In turn the competing ideologies between competition law and a free market have caused problems in applying Article 82 on the one hand and Article 295 of the EC Treaty on the other, which provides that “the Treaty shall in no way prejudice the rules in Member States governing the system of property ownership”. Article 82 provides that abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States. Individual Member States and substantial parts of larger Member States are likely to constitute a substantial part of the common market for this purpose (Lockett, 2005). Although the prohibition only applies to firms with a dominant position in a relevant market, the relevant product market and geographic market for this purpose is often narrowly defined in practice (Dabbah, 2004). Accordingly, the definition of “relevant market” is vital to determining the legality of conduct under Article 82. Nevertheless, in practice the identification of the product market remains inherently difficult when considering whether goods are interchangeable and substitutability. Indeed, Shah further makes the point that the difficulty lies in the fact that the term product and product market “may not always refer to the same thing” and that the definition of product market for the purposes of competition law can risk going beyond the boundaries of the actual product itself, which may encompass other goods (Shah, 2004). Mark Furse further highlights how the fundamental basis of EC competition law is not the fact that a monopoly is prohibited per se, however it is the abuse of the dominant position which is prohibited under Article 82 as further reflected in Chapter II of the Competition Act 1998 (Furse, 2008). However the case law has been inconsistent in this regard (Furse, 2008). Where businesses have significant market power, the case law demonstrates the imposition of severe restrictions on discounting policy under Article 82 and “this is a classic case of the difficult line between competition on the merits and abusive conduct” (Jones et al, 2007 p.481). Moreover, in the European Commission “Peer review of Competition law and policy” (2005), the need to undertake an impact analysis of EU legislative proposals to avoid unnecessary restrictions on competition in EU legislation was recognised (2005, p.3). In respect of Article 82, the Review acknowledged that “dominance is a broader concept than economic market power over price” (2005). However, to date the official stance has gone short of undertaking any reformulation of Article 82. In contrast to the criticisms of the arbitrary application of Article 82 to an evolving business framework, previous EC Commissioner General’s Faull and Nikpay of the EC Commission’s Competition Directorate General argue that any such alteration to Article 82 is unnecessary (Faull & Nickpay, 2007). Jones et al further argue that the central difficulty faced by the application of Article 82 in the contemporary marketplace is the extent to which competition law should pursue its goals whilst preserving the necessary environments for innovation and new markets. To this end it is submitted that the competition rule should be reformulated to address the following: 1) prejudicial consequences of market power; 2) categorisation and dealing with oligopolistic markets; 3) prevent mergers that lead to a concentration in market power; 4) prevent restrictive vertical agreements which have anti competitive consequences (Jones et al, 2007). Moreover, Ahlborn et al posit that equating high market shares with dominance in the case of these “fragile monopolists” of the new economy is “potentially very damaging to innovation and competition as EC competition law imposes a special responsibility to the market upon dominant firms” (2006, p.162). To this end, Jones et al argue that a multi attribute self regulatory model is more appropriate to address the performance attributes of one product, particularly as a central problem with the new economy market is the network externalities and the more users a network has the more valuable it becomes to an individual user (Jones et al, at.p430). The above analysis not only highlights the fact that the EU competition law rules fall short of addressing business realities, the fragmentation of the market clearly lends itself towards the argument of self-regulation. It is acknowledged that complete self-regulation is imperfect, however it would clearly be more cost effective than the current approach, which attempts to impose EU objectives on the national agenda without regard for business reality. Moreover, the prolific rate of emerging markets particularly in the wake of the e-commerce business model arguably highlights the inherent weakness of Article 82 to address dominance based on arbitrary determinations of “relevant market”. This further reiterates the point that the single minded nature of EU economic policy not only ignores the lateral perspective necessary to address business realities, it is currently risking the stability of the EU economic agenda. Moreover, as the enlargement agenda continues to increase the range of different interests vying to be furthered by individual states; the political objectives of member states are increasingly likely to influence national agendas, thereby undermining the furtherance of EU economic policy. 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