6 Colum. J. Eur. L. 271 (2000)
Petros C. Mavroidis. Professor of Law, University of Neuchâtel, Switzerland, Visiting Professor of Law at Columbia Law School and CEPR (Centre For Economic Policy Research).
The notorious ERTA decision by the European Court of Justice (ECJ), if viewed from a federalist perspective independently of its legal merits, represents an equilibrium: the quantity of the sovereignty transferred from European Community (EC) Member States to the Community at the internal (intra-EC) level equals the quantity of sovereignty that the Community can exercise on behalf of the EC Member States on the international scene.
The ECJ’s Opinion 1/94 casts some doubt upon this statement by restrictively interpreting the Community competence with respect to international trade negotiations. Opinion 1/94, however, is not a drastic departure from the ERTA case law. It is not, in the Kuhnian sense of the term, a “paradigm shift.” Consequently, the ERTA paradigm still holds.
The equilibrium reflected in ERTA is, of course, an equilibrium with a specific time-dimension. There is an inherent dynamic aspect to it, in the sense that the equilibrium will shift whenever the Member States of the EC so decide. The EC Member States, the Herren der Verträge (“Masters of the Treaties”), will hopefully move (and on most occasions do) to enhanced cooperation every time they perceive gains from cooperation.
Cooperation, of course, as the European experience shows, can take different forms: it can take the form of harmonization (every time the transaction costs argument prevails), and it can take the form of regulatory competition coupled with mutual recognition (when the perceived innovation gains are substantial). In the latter case, a safety net in the form of an EC common standard is quite often in place, reflecting the traditional EC (but not necessarily pan-European) “suspicion” of market forces and the tendency to anticipate market failures.
Viewed from this perspective, it is not surprising that the Editors of the Columbia Journal of European Law selected the papers that are featured in this Special Issue: all four papers have a clear intra-EC dimension which will, albeit in various forms, be reflected at the international plane. Moreover, there is one additional argument justifying (and indeed commending) the selections by the Editors: not only is the degree of intra-EC cooperation different in the four areas selected, but the degree of cooperation among the EC and its partners around the world also differs both ratione materiae (depending on the subject matter) and ratione personnae (depending on the identity of the partner).
Security and Defense is one of the least integrated areas in the EC architecture. It is hence primarily an intra-EC exercise, the eventual international aspect of which, though, is undeniable. The European Monetary Union (EMU) represents a more comprehensive structure than does Security and Defense at the intra-EC level. Three EC Member States have yet to join the EMU and the question as to whether the EC is an optimal currency area still occupies the first pages of economics journals. Most economists would argue that in the long run, a one- currency Europe is welfare-increasing. Many, though, (and most notably Paul Krugman, in a series of papers and books) have cast doubt upon the wisdom of the selection criteria for participation in the EMU. Antitrust cooperation takes place between the EC and only some domestic competition authorities. The quality and the quantity (frequency) of cooperation varies: the EC has been particularly insistent in drawing Central and Eastern European countries – candidates for accession to the EC – into the competition culture. Cooperation with these nations is, therefore, intense. However, what is popularly referred to as “globalization,” that is, intense foreign direct investment and trade liberalization, makes the case for cooperation among competition authorities in the near future stronger.
