The Fundamental Question of Minimum or Maximum Harmonisation

Abstract

This paper focuses on the choice between maximum and minimum harmonisation in the internal market. At its heart lie two simple questions. First, what space, if any, is allowed for national regulatory choices in areas where the EU has adopted secondary legislation? Second, what space, if any, should be allowed for national regulatory choices in areas where the EU has adopted secondary legislation? These are simple questions – but the answers are not so simple. The search for answers reveals ambiguities about the legal, political and economic character of the internal market, while also providing a basis for reflection on the priorities that exists among the EU’s several objectives. Maximum harmonisation is better suited to impose common standards as the foundation of the internal market. It promotes uniformity and centralisation. Minimum harmonisation is better suited to promote regulatory diversity and to protect local autonomy. Neither model is right or wrong: the choice depends on what one wishes to achieve. Both models of harmonisation have a role to play within the EU, but this paper argues for a case-by-case assessment of which is the more appropriate in the particular circumstances which create a demand for EU legislative action.