A (more) social Europe: A political crossroad or a legal one-way? dialogues between Luxembourg and Lisbon

Common Market Law Review

Volumn 42, Issue 6, 2005, Pages 1599-1635

  Hatzopoulos, Vassilis ^a,b,c  

^a DEMOCRITUS UNIVERSITY OF THRACE   (Greece)

^b College of Europe ^*

^c UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

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EID: 34548610473     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (222)

1. See, among many, Barnard, "EC Social Policy", in Craig and de Burca (Eds), The Evolution of EU Law (OUP, 1999), pp. 479-516;
2. Scharpf, "Economic Integration, Democracy and he Welfare State", (1997) JEPP, 18-36;
3. Fallon, Droit matériel général de I'UE, 2nd ed (Bruylant, 2002) , pp. 659-697.
4. See Hatzopoulos, "The Stability and Growth Pact Five Years Later: Cornerstone or Trammel for the EMU? (16/2002) Droits de l'Homme, 1069-1080 and more recently Mariatte, Procédures pour déficits publics excessifs et mise en œuvre du Pacte de stabilité et de croissance: match nul, balle au centre?", (2004) Europe, 25-29.
5. For an in depth analysis of the issue see Scharpf, "The European Social Model: Coping with the challenges of diversity", (2002) JCMS, 645-670.
6. Which is based on simplification of the various administrative procedures, reduction of red tape and, more generally, substantial regulatory reform. Such initiatives are supported both by the OECD and by the EC, in the framework of the Lisbon Strategy, see infra section 4.
7. The same logic of preventing a "race to the bottom" prevailed during the negotiation of the founding Treaties, at a time when France recognized more extensive social rights to workers than the other founding States. Thus, in the original Art. 117 EEC, the Member States identify the necessity and recognize the possibility that the common market may lead to the approximation of their respective social security systems, see Barnard, op. cit. supra note 1, 481.
8. If we accept that such a thing exists at all. The term was first used by the EC Commission in its White Paper "European Social Policy - A way Forward for the Union" (COM(1994)333 final) under the instigation of its then President J. Delors.
9. See also, "Defending the European Model of Society", in Commission of the European Communities, DG V, Combating Social Exclusion, Fostering Integration (Brussels, 1992), p. 49, where this model is defined as includ-ing a mixed economy with the participation of all citizens, where market forces are combined with government and social dialogue. The 2003 Greek Presidency called an International Conference on "The modernization of the European Social Model", which led to the publication of a lengthy general report entitled Connecting Welfare Diversity Within the European Social Model, published by Intersentia (2004).
10. In the same vain see Sharpf, op. cit. supra note 3,
11. and Shaw, "A Strong Europe is a Social Europe", Federal Trust online paper 05/03, available at www.fedtrust.co.uk/eu_constitution.
12. Writers such as Mossialos and McKee, EU Law and the Social Character of Health Care (PIE Peter Lang, 2002), pp. 27-41
13. and, more recently, Wincott, "The idea of the European Social Model: Limits and paradoxes of Europeanization", in Featherstone and Radaelli (Eds), The Politics of Europeanization (Oxford, 2003), ch. 12, after seriously questioning the existence of a European social model, have answered in the affirmative. In recent years, some writers have raised the issue of the externalities produced by the European social model,
14. see e.g. Lindbeck, "The European Social Model: Lessons for Developing Countries", Economics and Research Department, Asian and Development Bank, Working Paper series No. 11, available at www.adb.org/ Documents/ERD/Working_Papers/wp011.pdf
15. and Busse and Hemerijck, Deepening Social Europe in an Enlarged Union, available at www.fesportal.fes.de/pls/portal30/docs/FOLDER/POLITIKALANALYSE/ wwHemerijck.pdf. However, the very existence of a (single) social model has been questioned by many writers in view of a) the considerable divergences in the social stratification and the organization of the social services in Member States,
16. see e.g. McKee, Mossialos supra, and b) the secondary role that social matters play in the EU's common policies,
17. see e.g. Joerges and Ròdl, "Social Market Economy" as Europe's Social Model?, EUI Working Paper 2004/8
18. and Joerges, "The Market Without the State? The 'Economic Constitution' of the EC and the Rebirth of Regulatory Politics", European Integration Online Papers (EIOP) 1997/19.
19. See, among many, Faist, "Social Citizenship in the EU: Nested Membership", (2001) JCMS, 37-58;
20. Mishra, "Beyond the nation state: Social Policy in an age of globalization", (1998) Social Policy and Administration, 481-500.
21. For the Charter and its incorporation in the Constitutional Treaty see Kontiadis, "Social Rights in the Draft Constitutional Treaty", in Pernice and Poiares Maduro (Eds.), A Constitution for the European Union: First Comments on the 2003 Draft of the European Convention (Nomos Verlagsgesellschaft, Baden-Baden, 2004), pp. 59-74.
22. For the use of the term "market enforcing" see Barnard, supra note 1, 497.
23. Through the EC Charter of Social Rights (1989) and the EU Charter of Fundamental Rights (2001).
24. See Mabbett, "The development of rights-based social policy in the EU: The example of disability rights", (2005) JCMS, 97-120. For a definition of "mainstreaming"
25. see Fredman, "Equality: A New Generation?" (2001) Industrial Law Journal, 145-168, 165: "mainstreaming means that [the policy objective] is not an add-on or after-thought to policy, but is one of the factors taken into account in every policy and executive decision".
26. For the meaning of "active policies" see Fredman in the note supra and Wincott, "Beyond social regulation? New instruments and/or a New Agenda for Social Policy at Lisbon?" (2003), Public Administration, 533-553, 548.
27. In competition law at least two developments may be seen to embody social awareness: a) on the one hand the adoption of Regulation (EC) 2204/2002 of the Commission, of 12 Dec. 2002, on the application of Articles 87 and 88 on State aids for employment purposes, O.J. 2002, L 337/3 and b) more generally, in the course of the deregulation and liberalization of the traditional State monopolies (telecommunications, energy, transport, post) the definition and funding of core "public service obligations" by reference inter alia to social criteria.
28. See in this respect Rodrigues, "Vers une loi européenne des services publics", (2003) RMC, 503 and id., "Services Publics et droit communautaire en 2001: De la régulation a l'évaluation?", (2002) Europe; Moavero Milanezi, "Les services d' intérêt économique général, les entreprises publiques et le privatisations", (2000) RDUE; Ross, "Article 16 E.C. and services of general interest: from derogation to obligation? "(2000) EL Rev., 22, and more recently the White Paper on services of general interest (CŸœ(2003)270 final).
29. Reference is made to the case law of the Court in Cases C-225/98, Commission v. France, Nord-Pas-de-Calais, [2000] ECR 1-7445
30. and C-380/98, University of Cambridge, [2000] ECR I-8035 which has been incorporated by the public procurement Directive 2004/18/ EC, O.J. 2004, L 134/114, in recital 46 and Art. 26.
31. See also Case C-513/99, Concordia Bus, [2002] ECR I-7213 for the use of criteria linked to the protection of the environment.
32. Directive 88/361/EEC of the Council of 24 June 1988, on the complete release of circulation of capital, O.J. 1988, L 178/1.
33. When the (second) derogation conceded to Greece expired. Derogations were also given to Portugal and Luxembourg until the end of 1993, but none of the countries made full use.
34. Cf. the recitals of the draft Directive on the free provision of services (the Bolkestein Directive) COM(2004)2 final and, for more precise data, see the Commission Report on the Implementation of the Internal Market Strategy (2003-2006), COM(2004)22 final.
35. Those freedoms, which imply the movement of people across national borders: workers, establishment and services.
36. Cases C-76/90, Säger, [1991] ECR I-4221;
37. C-55/94, Gebhard, [1995] ECR I-4165
38. and C-415/93, Bosman, [1995] ECR 1-4921,
39. respectively. See also case C-19/92, Kraus, [1993] ECR I-1663, which concerned simultaneously the freedom of establishment and the free movement of workers.
40. Cases 43/75, Defrenne II, [1976] ECR 455
41. and C-149/77, Defrenne III, [1978] ECR 1365.
42. For the abundant case law on this issue see, among many, Hervey and O'Keeffe (Eds.), Sex Equality Law in the EU (Wiley Chancery 1996) as well as Fenwick and Hervey, "Sex equality in the single market: New directions for the ECJ", 32 CML Rev. (1995), 433;
43. Shaw, "Women, work and care: Women's dual role and double burden in EC sex equality law", (1998) Journal of European Social Policy, 43-63;
44. More, "The principle of equal treatment: From market unifier to fundamental right?", in Craig and G. de Burea, op. cit. supra note 1, pp. 517-553.
45. See also Hatzopoulos, "La protection des minorités sexuelles par les juridictions européennes", (2002) Revue Hellénique des Droits de l'Homme, 709-756.
46. See e.g. Cases 182/78, Pierrik II, [1979] ECR 1977;
47. C-120/95, Decker, [1998] ECR I-1831;
48. C-158/96, Kohll, [1998] ECR I-1931 and many more;
49. see below under 3.1.3.
50. Directive 80/987/EEC, O.J. 1980, L 283/23.
51. See e.g. Cases C-6 & 9/90, Francovich, [1991] ECR I-5357
52. and C-479/93, Francovich II, [1995] ECR I-3843
53. and more recently Case C-520/03, Olaso Valero, judgment of 16 Dec. 2004, nyr.
54. Starting with judgments of the Court in Cases 293/83, Gravier, [1985] ECR 593
55. and 24/ 86, Blaizot, [1998] ECR 379
56. and culminating in Cases C-224/98, D'Hoop, [2002] ECR I-6191
57. and C-209/03, Bidar, judgment of 15 March 2005, nyr.
58. See among many Weiler, "Citizenship and human rights", in Winter et al. (Eds.), Reforming the TEU: The Legal Debate (Kluwer, 1996).
59. Cases C-378/97, Wijsenbeek, [1999] ECR I-6207
60. and C-356/98, Kaba I, [2000] ECR I-2623.
61. Nic Shuibhne, "Free movement of persons and the wholly internal rule: Time to move on?", 39 CML Rev., 731-771; Gaja, "Les discriminations à rebours: un revirement souhai-
62. table", in Mélanges en hommage à Michel Waelbroeck, Vol. II (Bruylant, Brussels, 1999), 993-1000
63. and Tagaras, "Règles Communautaires de libre circulation, discriminations à rebours et situations dites 'purement internes'" in the same Mélanges, pp. 1499-1538.
64. See also Simon and Lagondet, "Libre circulation des marchandises et situations purement internes: chronique d'une mort annoncée, "(1997) Europe, chron. 9;
65. Cannizzaro, "Producing 'reverse discrimination' through the exercise of EC competences", (1997) YEL, 29;
66. Somek, "Reverse discrimination revisited: Coping with incongruity between Community law and Member State legislation", at www.univie.ac.at/juridicum/forschung/wp09.pdf
67. Reverse discrimination and the wholly internal rule are often (but not necessarily) linked: in Case 314-316/81 and 83/82, Waterkeyn, [1982] ECR 4337 the French legislation concerning the advertisement of alcoholic beverages was struck down only in as far as it concerned imported drinks, while French drinks remained subject to the restrictive rules. This is a pure case of reverse discrimination. In Case Surinder Singh (see infra note 32), however, if Mrs Singh were not allowed to bring in the UK her Indian spouse, she would suffer reverse discrimination compared to citizens of other Member States (who would be allowed to bring their foreign spouses), precisely because of the wholly internal rule.
68. For the obligation of the State of origin to recognize the professional qualifications acquired by its own nationals in other Member States, see inter alia Cases 246/80, Broekmeulen, [1981] ECR 2311
69. and C-19/92, Kraus, [1993] ECR I-1663 and more recently C-234/97, Bobadilla, [1999] ECR I-4773
70. and C-313/01, Morgenbesser, nyr.
71. See e.g. Joined Cases C-297/88 & 197/89, Dzodzi, [1990] ECR I-3763.
72. Case C-370/90, Surinder Singh, [1992] ECR I-4265.
73. Subsequently, in Case C-109/01, Akrich, [2003] ECR 1-9607, the ECJ made clear that the third country national who has entered the EU illegally and has never acquired a legal right of residence, as a family member or else, in the State of origin of the Community national, may not claim such a right in another Member State, once his/her partner moves there.
74. Directive 73/148/EEC of the Council of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, O.J. 1973, L 172/14. This directive, together with numerous other acts of secondary legislation concerning the freedom of movement and of establishment of community workers has been recently repealed and replaced by Directive 2004/
75. 38/EC of the EP and the Council of 29 April 2004, the "citizenship directive", O.J., 2004, L 158/77.
76. See e.g. White in (1993) EL Rev., 527-532 and Cullen in (1993), The Journal of Social Welfare Law, 77-82.
77. Case C-60/00, Carpenter, [2002] 1-6279.
78. See paras. 41 and 42 of the judgment, as well as the judgment of the Court in D'Hoop, supra note 25.
79. See also Cases C-413/99, Baumbast, [2002] ECR I-7091, and C-200/02, Zhu & Chen, judgment of 19 Oct. 2004, nyr.
80. Case C-384/93, Alpine Investments, [1995] ECR I-1141 and annotation by this author in 32 CML Rev., 1427-1445.
81. Supra note 25.
82. Joined Cases C-321-324/94, Pistre, [1997] ECR 1-2343, para 44, and annotation by Simon and Lagondet, "Libre circulation..." supra note 28.
83. Case C-448/98 Guimont [2000] ECR I-10663.
84. For all these cases see supra note 28.
85. Joined Cases 515, 519-524 & 526-540/99, Reisch e.a., [2002] ECR I-2157. It is interesting to compare paras. 21-24 of Guimont with paras. 24-27 of Reisch. For a recent overview of all four freedoms and the interactions between them,
86. see Hatzopoulos, "Trente ans après les arrêts fondamentaux de 1974, les quatre libertés: quatre?" in Demaret et al. (Eds.), 30 Years of European Legal Studies at the College of Europe - 30 ans d'études juridiques européennes au Collège d'Europe: Liber Professorum 1973/74-2003/04 (P.I.E.-Peter Lang, Brussels, 2005), pp. 185-201.
87. Case 32/75, Cristini v. SNCF, [1975] ECR 1085.
88. Case 267/83, Diatta, [1985] ECR 567.
89. The ECJ held that the right of residence of the unmarried companion constituted for the EU worker a "social advantage" in respect of which any discrimination is prohibited.
90. Surinder Singh supra note 32.
91. Carpenter supra note 36.
92. Supra note 37.
93. These same rights are henceforth recognized by Directive 2004/38, the "citizenship directive", supra note 34.
94. Supra note 37.
95. Cf. the general principle enunciated in Art. 7 EC, as well as Arts. 48(2), 52(2) and 65 EC for workers, self-employed people and service providers, respectively.
96. Most of these directives have been repealed and replaced by the "citizenship directive" 2004/38/EC, supra note 34. See on this step, also in relation to the Court's case law on access to social benefits discussed further in this section, Hailbronner, "Union citizenship and access to social benefits", 42 CML Rev., 1245 et seq.
97. Directive 75/117/EEC of the Council of 10 Feb. 1975, O.J. 1975, L 45/19.
98. Directive 76/207/EEC of the Council of 9 Feb. 1976, O.J. 1976, L 39/40, as it has been
99. modified by Directive 2002/73/EC of the EP and the Council of 23 Sept. 2002, O.J. 2002, L 269/15.
100. Directive 90/365/EEC, O.J. 1990, L 180/28 for the pensioners; Directive 93/96/EC, O.J. 1993, L 317/59 for students; Directive 90/364/EEC, O.J. 1990, L 180/26 for all those having sufficient economic resources.
101. Directive 2000/43/EC of the Council of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, O.J. 2000, L 180/22 and Directive 2000/78/EC of the Council of 27 Nov. 2000 establishing a general framework for equal treatment in employment and occupation, O.J. 2000, L 303/16.
102. Defrenne II and mainly Defrenne III, supra note 20.
103. See supra note 21.
104. Case C-85/96, Martinez Sala, [1988] ECR I-2691.
105. Paras. 62-64 of the judgment.
106. Case C-184/99, Grzelczyk, [2001] ECR I-6193.
107. Directive 93/96/EC supra note 55.
108. The ECJ held that the host State has the right not to renew or to recall the authorization of residence if the conditions of Directive 93/96 - and the requirement of sufficient economic resources in particular - are no longer fulfilled. However, Member States may not proceed to the above actions merely because the person concerned has applied for the minimal benefit of subsistence.
109. D'Hoop, supra note 25.
110. D'Hoop para 28; the Court refers to para 31 of the judgment in Grzelczyk, supra note 61.
111. D'Hoop, para 30.
112. Case C-138/02, Collins, judgment of 23 March 2004, nyr.
113. That is to say, the person concerned has not yet worked in the host country and hence does not come within the scope of Regulation 1612/68, which could entitle him/her to such a benefit.
114. Case C-209/03, Bidar, judgment of 15 March 2005, nyr. See further case note by Barnard in 42 CML Rev. 1465. In general also Dougan, "Fees, grants, loans and dole cheques: Who covers the costs of migrant education within the EU?", 42 CML Rev., 943-986.
115. Cases 39/86, Brown, [1988] ECR 3161 and 197/86, Lair, [1988] ECR 3205.
116. Supra note 62.
117. Case C-456/02, Trojani, [2004] nyr.
118. For the relative requirement, see inter alia Case 53/81, Levin, [1982] ECR 1035;
119. Case 196/87, Steyman, [1988] ECR 6159
120. and 344/87, Bettray, [1989] ECR 1621.
121. In fact Belgium had issued Mr Trojani a residence permit.
122. Neither the UK nor the Belgian legislation excluded foreigners from the relevant benefits altogether, but both imposed extremely restrictive conditions.
123. Directive 2003/109/EC, O.J. 2003, L 16/44. This Directive on the one hand establishes a permanent right of residence for long term immigrants and their families, after five years of legal residence, even if they no longer fulfil any of the conditions for which they were admitted within the EU (employment, studies, economic independence) and, on the other hand, allows for limited recourse to the host State's social benefits during the first (5 year) period.
124. Joined Cases 286/82 & 26/83, Luisi and Carbone, [1984] ECR 377.
125. The same conclusion was also reached by the Court in Case C-159/90, SPUC v. Grogan, [1991] ECR I-4685. In that case, however, the Court avoided applying the relevant Treaty rules, as it was unable to identify any consideration for the services offered.
126. Supra note 22.
127. It is recalled that Mr Kohll was a Luxembourg national who received treatment from an orthodontist established in Germany, while Decker, also a Luxembourg national, bought a pair of eyeglasses from an optician in Belgium.
128. Case C-157/99, Smits and Peerbooms, [2001] ECR I-5473.
129. Case C-368/98, Vanbraekel, [2001] ECR I-5363.
130. For an extensive analysis of this case law see Hatzopoulos, "Killing National Health and Insurance Systems but Healing Patients? The European Market for Health Care Services after the Judgments of the ECJ in Vanbraekel and Peerbooms", 39 CML Rev., 83-729.
131. Case C-385/99, Müller-Fauré, [2003] ECR I-4509;
132. see case note by Flear in 41 CML Rev., 209-233.
133. Case C-8/02, Leichte, judgment of 18 March 2004, nyr.
134. In other recent judgments the ECJ has confirmed the extensive application of the rules on services in relation to health; see Cases C-156/01, Van der Duin, [2003] ECR I-7045 and C-193/03, Bosch, judgment of 14 Oct. 2004, nyr.
135. Case C-326/00, IKA v. Ioannidis, [2003] ECR I-1703 and its annotation by Hatzopoulos in 40 CML Rev., 1251-1268.
136. In the later judgment concerning pensioners, Van der Duin (supra note 86), the ECJ made clear that, formally, prior authorization is still required. However, this case concerned a very special factual situation and in no way limits the effects of the earlier judgment in IKA v. Ioannidis.
137. For a comprehensive presentation of the relevant case law and its implications for the organization of health services in the Member States see Hatzopoulos, "Health law and policy: The impact of the EU, in de Burca, EU Law and the Welfare State: In Search of Solidarity (Collected Courses of the Academy of European Law), "EUI/OUP" 2005, pp. 123-160.
138. See Hervey and McHale Health Law and the EU(CUP, 2004), pp. 143-144.
139. Supra note 65.
140. For the recognition of a fundamental right to health, see Hervey "The right to health in European Union Law", in Hervey and Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights (2003), pp. 193-222. See also Mabbett, supra note 11.
141. Case 71/76, Thieffry, [1977] ECR 765;
142. Case 115/78, Knoors, [1979] ECR 399;
143. Case 222/86, Heylens, [1987] ECR 4097;
144. Case C-340/89, Vlassopoulou [1991] ECR I-2357;
145. Case C-19/92, Kraus, [1993] ECR I-1663;
146. Case C-319/92, Haim, [1994] ECR I-425;
147. Case C-164/94, Aranitis, [1996] ECR I-135.
148. Directive 89/48/EEC (First General System), O.J. 1989, L 19/16 and Directive 92/51/ EC (Second General System), O.J. 1992, L 209/25.
149. Supra note 30.
150. Case C-285/01, Burbaud, [2003] ECR I-8219.
151. The obligation in question does not stem from any provision of secondary legislation, but from the general rules of the EC Treaty on free movement.
152. Case C-102/02, Beuttenmüller v. Land Württemberg, judgment of 29 April 2004, nyr.
153. The Court gave judgment on the relevant provision (Art. 3) of Directive 92/51, but its findings apply a fortiori to the equivalent provision (Art. 3) of the Directive 89/48, which leaves even less room for manoeuvre to Member States. A preliminary ruling concerning specifically the direct applicability of Art. 3 of Directive 89/48 was decided recently,
154. see Case C-141/04, Peros, judgment of 14 July 2005, nyr.
155. Which may depart from Case C-338/91, Steenhorst-Neerings, [1993] ECR I-5475, where the Court indicated that national rules which restrict the enjoyment of rights based on a directive may be permitted even where the directive has not been properly transposed, providing they do not affect the basic right of individuals to rely on the directive before a national court.
156. Which seems to be the case: cf. Case C-141/04, Peros v. TEE, judgment of 14 July 2005, nyr, on similar facts, following exactly the same reasoning.
157. Case C-31/00, Dreessen, [2002] ECR I-663, para 25, where reference is also made to the earlier judgment in Case C-238/98, Hocsman, [2000] ECR I-6623, paras. 24 and 31.
158. See the previous note.
159. Directive 93/16/EC, O.J. 1993, L 165/1.
160. Directive 85/384/EEC, O.J. 1985, L 223/15.
161. Case C-313/01, Morgenbesser, [2003] nyr.
162. See Directive 2005/36/EC, concerning the recognition of professional qualifications, O.J. 2005, L 255/22. Political agreement was reached on this text on 18 June 2005, but the final text was not published at the date of writing.
163. See the Green Paper, COM(2004)811 final, on the management of economic immigration, where the Commission deals with inter alia means for integrating the foreign workforce into the EU labour market.
164. For a stark example of such legislation see Directive 2001/23/EC on acquired rights for workers in the event of transfer of undertakings, O.J. 2001, L 82/16; see also Barrett, "Light acquired on acquired rights: Examining developments in employment rights on transfers of undertakings", 42 CML Rev., 1053-1105.
165. Supra note 55.
166. See supra 3.1.
167. On the issue of governance in the EC, see the 2001 White Paper, COM 2001/428 final; and among a wealth of knowledgeable articles, see Scharpf, "European Governance: Common Concerns v. The Challenge of Diversity", Jean Monnet Working Paper No. 7/01 at www. mpi-fg-koeln.mpg.de/pu/ workpap/wp01-6/wp01-6.html;
168. Joerges, "Guest Editorial: The Commission's White Paper on Governance in the EU - a Symptom of crisis?", 39 CML Rev., 441-445 as well as the dedicated web page europa.eu.int/comm/governance/index_en.htm_where further bibliography and links are to be found.
169. Directive 64/221/EEC of the Council of 25 Feb. 1964, O.J. 1964, L 56/850, repealed and incorporated in Directive 2004/38, supra note 34.
170. Regulation (EEC) 1408/71, O.J. 1971, L 149/2.
171. Regulation (EC) 631/2004, O.J. 2004, L 100/1.
172. Supra 3.2.
173. Regulation (EC) 859/2003, O.J. 2003, L 124/1.
174. Joined Cases C-95-98 & 180/99, Khalil e.a., [2001] ECR I-7413.
175. At least at the time of adoption of the relevant Regulation. The institution of the third Pillar and the "communitarization" of immigration, asylum and visa policies, through the creation of Title IV EC have considerably changed the situation.
176. Regulation (EC) 883/2004 of the EP and the Council of 29 April 2004, O.J. 2004, L 166/1.
177. See specifically see supra note 6.
178. For the Lisbon objectives and the means for their achievement, see below 5.
179. Which expired on 1 Jan. 1962. The delay was also due to the "empty chair policy" followed by France until 1966.
180. Defrenne II, supra note 20
181. Directive 75/117/EEC, supra note 53.
182. Directive 76/207/EEC of the Council of 9 Feb. 1976, O.J. 1976, L 39/40.
183. Directive 2002/73/EC, supra note 54.
184. Directive 2000/43/EC supra note 56.
185. Directive 2000/78/EC supra note 56.
186. See the 12th recital and Art. 3(2) of Directive 2000/78.
187. Art. 3(3) of Directive 2000/78.
188. See the most recent scoreboard for the completion of the Area of Freedom, Security and Justice which was annexed to the Commission Communication on the Tampere Programme, COM(2004)401 final, SEC 2004/680, of 2 June 2004.
189. If they do not fall under some more specific association or cooperation agreement already signed by the EC. For the distinction between association and cooperation agreements and their respective legal effects see Case C-416/96, El Yassini, [1999] ECR 1-1209.
190. See in general Boelaert-Suominen, "Non-EU nationals and Council Directive 2003/109/EC on the status of third-country nationals who are long-term residents: Five paces forward and possibly three paces back", 42 CML Rev., 1011 et seq.
191. Tampere programme, para 18.
192. Hague programme, para 1.5.
193. Directive 2003/86/EC, O.J. 2003, L 251/12.
194. Directive 2003/109/EC, O.J. 2003, L 16/44.
195. COM(2001)386 final - CNS 2001/0154, O.J. 2001, C 332/248.
196. This is the reason why the Commission published a Green Paper on this topic, after it had come up with a directive proposal, see COM(2004)811 final.
197. It should be noted that Directive 2002/73, which modifies Directive 76/207, has as its legal basis Art. 141 EC.
198. The five first fields of action follow roughly the presentation used in the Kok report, November 2004.
199. In this respect the adoption of the services (Bolkenstein) directive, COM 2004/2 final, 2004/1 COD has provisionally been suspended.
200. See www.oecd.org/topic/0,2686,en_2649_34141_1_1_1_1_37405,00.html
201. See among many, Arrowsmith, Sisson and Marginson, "What can 'benchmarking' offer the Open Method of Coordination?" (2004) JEPP, 311-328; de la Porte and Pochet, "Social benchmarking, policy making and new governance in the EU", (2001) JESP, 291-307.
202. Communication of 8 Oct. 2003, COM(2003)585 final.
203. Social issues have openly been on the EU agenda since the relevant Communication, see supra note 5. However, social objectives have, up till now, been of a merely complementary character, completing other core objectives, essentially of an economic nature.
204. Based on minimal harmonization (often through standardization) and mutual recognition, see Council Resolution of the 7 May 1985 for a new approach concerning technical harmonisation and standardisation, O.J. 1985, C 136/1.
205. Such a precedence, which was to be feared anyway, is clearly provided for in the text of the European Council's conclusions: "As a general instrument for coordinating economic policies, the BEPGs should continue to embrace the whole range of macroeconomic and microeconomic policies, as well as employment policy insofar as this interacts with those policies".
206. See communications COM(2001)387 final and COM(2001)710 final, on immigration and asylum policy, respectively.
207. Scharpf, op. cit. supra note 3.
208. Ibid.
209. Tsoukalis, What kind of Europe (OUP, 2003), p. 97 et seq. See also the Kok report.
210. De la Porte and Pochet, op. cit. supra note 144;
211. Ashiagbor, "Soft harmonisation: The Open Method of Coordination in the European employment strategy," (2004) EPL, 305-332;
212. Regent, "The Open Method of Coordination: A new supranational form of governance?", (2003) ELJ, 190-214;
213. Hodson and Maher, "The Open Method as a New Mode of Governance: The case of Soft Economic Policy Coordination", (2001) JCMS, 719-746;
214. de Burea and Zeitlin, "Constitutionalising the Open Method of Coordination", CEPS Policy Brief No. 31/ 2003, at www.ceps.be
215. See Directive 2004/18/EC supra note 14, recit. 46 and Art. 26.
216. See also the judgment in Case C-448/01, Wienstrom, [2003] ECR I-14527, concerning the procurement of electricity, where the Court held that the "clean" origin of the electricity sought, could be used as a valid adjudication criterion with high relevance (45% of total).
217. It is worth mentioning, in this respect, that the spring 2005 European Council conclusions on re-launching the Lisbon process, specifically envisage public procurement as a vector for the promotion of innovation and sustainable growth (para 13) and for the promotion of ecotechnologies (para 19).
218. Cases C-213/96, Outokumpu, [1998] ECR I-1777;
219. Case C-384/01, Commission v. France, VAT on energy, [2003] I-4395;
220. Case C-207/01, Altair Chimica v. ENEL, [2003] ECR I-8875;
221. Case C-185/00, Commission v. Finland, taxation of petroleum products, [2003] ECR I-14189.
222. In a purposefully optimistic manner, the word makes reference to previous experiments of "communitarization", and notably the shift of Asylum, Immigration and Visa policies from the third Pillar of the EU to Title IV of the EC, in parallel to the communitarization of the Schengen acquis.