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Harmonization, subsidiarity and cultural solicitude describe the variables of the matrix within which the union of Europe develops. The particular way in which a federal system is manifested, as well as the relationships between supra-national, national and local power, will be a function of the intersection of these three parameters. Within these parameters, federal systems can assume an almost unlimited number of forms, and the form of any federal system can shift depending on the relative importance of each of the parameters in every federal system. The European Union today presents an example of one point of intersection of the values of the three parameters; the United States represents another; GATT and the United Nations represents yet another.
Three consequences, significant for the development of the European Union, flow directly from this construction. First, is that there is an inverse relationship between the power to set norms, inherent in harmonization, and the efficacy of subsidiarity. The power to declare fundamental rules at one level of government is the power to limit the possibility of the assertion of power by all subsidiary governments. The history of the Community has been one in which the European Court of Justice ("ECJ") has appropriated for itself the power to declare fundamental norms under which the assertion of power by any government within the Community must be judged. The necessary consequence of this assertion has been to limit the discretion of subsidiary units of government, the Member States of the Community, to order their "internal affairs."
Second, cultural solicitude is grounded in exceptionalism, and, as such, is subversive. The gravamen of cultural solicitude is the cry "this cannot apply to me!" But what "cannot apply"? If the inapplicable is merely incidental, and the alternative is related to the imposition rejected, then the subversion exists only as an irritant. If the inapplicable involves a rejection of norms set either at the national or supra-national level, then it implies metaphysical secession. Europe has had a tragic history with secession of this type. Since the Second World War, Europe has attempted a delicate balance between permitting sub-national peoples the power to express their "identity" and enforcing a uniform application of "really important" socio-political norms at the nation-state and federal levels. For the moment cultural solicitude has been reduced to a touristic artifact -- colorful costumes, exotic languages and the like. Yet within this construct lies the possibility of real redirection in the flow of power.
Third, European constitutionalism is inherently unstable. No one place within the matrix provides the perfect mix of harmonization, subsidiarity and cultural solicitude. Optimality will always be a function of the values placed on the three variables by peoples with the power to implement such valuation. The particular mix of harmonization, subsidiarity and cultural solicitude represented by any one place within the matrix will endure only for as long as the valuations producing that mix of the three variables have currency or the people implementing such a mix have the power to maintain it.
For the moment, the European Community has chosen to vest great value in harmonization at the federal level. Fundamental harmonization from the top down is nicely evidenced by the development of the ECJ's general principles of law. General principles are the most dramatic method through which government at the federal level constructs the normative limits of the power of subsidiary governments. As a result, the ambit within which subsidiarity can operate is substantially reduced.
The doctrines of Community law autonomy and supremacy effectively shift legislative power to the federal level. The doctrine of autonomy essentially posits the existence and independence of the Communities as a political unit of government. In its absence, what passes for the Community would amount to little more than collective obligations of the constituent states. Autonomy is the name the ECJ has given to the very notion of federalism so taken for granted in other federal states. Autonomy contains within it the idea that the Community is set apart from its constituent states. The Community, taken as a whole (under the doctrine of unity) constitutes an independent government with concurrent competence over the territories of the constituent states. (E.g., San Michele v. High Authority, Case 9/65, [1967] ECR 1). Autonomy serves as a shield against Member State encroachment of the governmental prerogatives of the Community. (E.g. Variola SpA v. Amministrazione italiana delle Finanze, Case 34/73, [1973] ECR 981).
Having defined the complex of obligations and undertakings in the Community Treaties as forming a government does not resolve the question of the status of that government relative to existing nation-states. The doctrine of supremacy provides such a definition of position. While the notion of federalism does not invariably lead to the certain conclusion that the actions of the government of the most general jurisdiction ought to be supreme within its areas of competence, the ECJ has attempted to impose the American model on the constituent states of the Community. (Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62, [1963] ECR 1, [1963] CMLR 105). Under this conception of federalism, the constituent states of the federative enterprise cede sovereignty upwards to the (now autonomous and independent) federal government. (Costa v. ENEL, Case 6/64, [1964] ECR 585, [1964] CMLR 425; Internationale Handelsgesellschaft GmbH v. Einfuhr-und Vorratsstelle Für Getreide und Futtermittel, Case 11/70, [1970] ECR 1127, [1972] CMLR 255; Commission v. Italy (Second Art Treasures), Case 48/71, [1972] ECR 527). While there may be substantial unanimity within the constituent states respecting the validity of the principle of autonomy, there is significantly less unanimity with respect to the validity of the notion of Community supremacy. (McCarthy's Ltd. V. Smith, [1979] 3 CMLR 44 (English Court of Appeal, Civil Div.)(per Denning MR); Brunner v. European Union Treaty, Cases 2 BvR 2134 and 2159, [1994] 1 CMLR 57 (Federal Constitutional Court, second chamber, October 12, 1993); Internationale Handelsgesellschaft GmbH v. Einfuhr-und Vorratsstelle Für Getreide und Futtermittel (Solange I), Case 2 BVL 52/71, 37 BVERFGE 271, [1974] CMLR 540 (Federal Constitutional Court (2nd Senate)).
It is true that autonomy and supremacy do not provide vehicles for the assertion of limitless power. The federation can exercise power only within its competence. The essence of federalism, after all, is a formal contractually based limitation of power among the institutional participants of the federation. Thus, while the basic level of a federal system, usually the constituent state, might claim residuary power, the higher levels of such a system usually may assert only such power as may be conceded to it by its constituent parts, that is, the parts which hold the residuary power. In both the E.U. and U.S. the residuary power resides in the state. The federal layer of government operates within the constraints of the concession made it by these residuaries. In the European Union, Commission, Council and Court share significant responsibility for harmonization among the constituent parts of the Union within the confines of the power conceded them by the Community Treaties.
But, neither the United States nor the E.U. can assert authority beyond that provided in their respective governance documents. For that matter, nation-states do not possess unlimited competence either, whatever the leaders of the Chinese Republic may currently posture about that matter. Yet, the Community Institutions, and the ECJ, in particular, have never hesitated to find such competence to be breathtakingly broad. (Asscher v Staatssecretaris van Financian, Case C-107/94, [1996] ECR I-3089, [1996] 3 CMLR 61 (direct taxation fell within the competence of the Member States, they nonetheless had to exercise that competence consistently with Community law and therefore avoid any overt or covert discrimination on grounds of nationality)). As Jean-Victor Louis has suggested, relying on the work of Pierre Pescatore:
Faced with the task of interpreting a constitutional framework that gives Community Institutions wide powers to implement its goals, the Court has gone beyond the technical rules laid down in the Treaties themselves to establish the fundamental principles on which the creation of the Community is based. . . . The principles in question are equality, freedom, solidarity and unity. (Louis, 50-51)
The ECJ's extraordinarily broad (and some might argue, Treaty expanding) interpretation of, for instance, Arts. 9, 30 and 48, coupled with the "discovery" of consumer protection and consumer fraud, are well known and will not be discussed here. (E.g., Finanzamt Köln-Altstadt v. Schumacher, Case C-279/93, [1995] ECR I-225; [1996] 2 CMLR 450; Wielockx v Inspecteur der Directe Belastingen, Case C-80/94, [1995] ECR I-2493).
But competence does not always define the limits of the power which can be asserted by a federal organization. Real power lies not in the black letter of the governance document (the Community Treaties). Such power lies in the normative governance structure which can be deduced from that document. This normative governance structure provides the basic rules within which all actions of people and institutions subject to those rules will be judged. Each provides the basic social postulates from which all other rules can emerge. Just as the Ten Commandments or perhaps even the Twelve Tables provided the basis on which all other actions or regulations could be judged, so, too, the power to create equivalent basic norms shifts tremendous power to such an entity. The power need not be exercised directly, but norms are pervasive within any system in which they exist merely by the fact of their existence and acceptance.
The "new legal order" rhetoric of the Community provides the conceptual framework for norm-making at the Community level. Within the constitutional context, the doctrines of autonomy and supremacy provide the framework for the possibility of norm making at the level of the Community. The development of general principles of Community law provides the substance of such norm making. For this purpose, the ECJ has chosen to look, not only to the general principles inherent in the Treaties, but also to general principles of interpretation and more importantly, to the general principles the ECJ finds are (or have become) common to the laws of the Member States.
As such, concessions of power to the federal level may be taken as well as given. The singularly most important concession of this type has been taken by the ECJ, and not the political bodies, which has embarked on that quite ambitious project of creating the normative foundation for social and political union. In the form of juridically crafted fundamental principles of Community Law, this appropriated concession of power creates the framework within which all political and social discussion must take place. This appropriation is not unconscious. The ECJ has not shrunk from conceding, on occasion, that the real basis for the social disciplining of "fundamental principles" lies outside the "black letter" of the Treaties. (Weiler, 1986 at 1103) Consequently, the exercise of this power has been problematic for the ECJ, especially where it has asserted the power to impose conduct norms in the arena of "human rights." The ECJ has made it quite clear that it retains the authority to determine the scope of those general principles of Community Law which may be imposed on the Member States and all who reside within them. In effect, an organ of the supra-national entity now reserves to itself the power to determine the extent of its power to define the conduct parameters of all subordinate entities. This is a very neat trick, one which significantly increases the power of the E.U. for the purposes of doing "good things" but also one which permits a substantial intrusion into the autonomy of the Member States. It is now left to the ECJ, within the parameters which the ECJ itself has defined, to designate the base line and limits within which (non-dangerous) deviation will be permitted (Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle Fur Getreide und Futtermittel, Case 11/70, 1970 E.C.R. 1125, C.M.L.R. 255) through the Court's power to declare "fundamental principles of community law." (Case C-13/94, P. v. S. & Cornwall County Council, 2 C.M.L.R. 247, at ¶ 18).
Thus, general principles of Community law serve as a limiting principle for Member State autonomy, even with respect to areas where the Member State has legislative authority. There is a U.S. equivalent. It is the enunciation of federal constitutional principles as against the power of both federal and state political units. General federal constitutional principles supply the interpretative norms with which American courts can interpret their legal codes. (Backer, 1997a). Consider Romer v. Evans (116 S. Ct. 1620 (1996)) from the constitutional perspective within which the ECJ operates. In Romer, the U.S. Supreme Court held that an amendment to the Colorado state constitution, enacted through a statewide voter referendum, violated the Equal Protection Clause of the federal Constitution. The amendment precluded all governmental action designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colorado, a Member State of the United States, has the legislative authority to amend its constitution by popular referendum. However, general principles of American Constitutional law foreclosed the use of that power by Colorado, to the extent that its use violated the harmonizing norms of the principle of "equal protection." That American courts are reluctant to acknowledge what they do is of little moment. (Backer, 1997b).
Interpretive principles of American Constitutional law, like general principles of Community law, are examples of meta-harmonization--norms which are meant to limit the range of acceptable action by subordinate governments. Subgroups are not permitted to explode the boundaries of these general principles. This is law making which is impervious to the logic of subsidiarity as a general principle of comity. It does not recognize the imperatives of ethnic cultural norms which may be at variance with those general principles of equality, freedom and fundamental human rights. It is outside of what Americans conceive as issues of federalism. General principles such as equality and "human rights" contain within them the power as well as the ambiguity of the Decalogue.
Harmonization within the European Union's "new legal order" is coercive. It suggests the limits of law making to which the constituent states of the Communities must adhere; it supplies the boundaries within which the conduct norms of our supra-national polis may be specified. Harmonization regularizes; it levels by creating sameness within a geographic area. This is harmonization in its positive function as builder of unity. This is unity on the model of the Académie Français' project to harmonize French language usage. Harmonization also has another function -- it limits. Within the European Union, for example, the principle of equality substantially limits the power of political and economic institutions to engage in a number of activities once thought unproblematic. Harmonization exists at all political levels. Its normative power increases the "higher" the political level at which it is deployed. Harmonization within Cataluña does not have the normative power which harmonization has within the European Union.
The centripetal forces operating at the federal level do not exist unchecked. Political doctrine has been invented in a formal attempt to modify the relationship between federal government and constituent state. Thus has subsidiarity been arrayed by a statist nationalism against pan-Europeanism. (E.g., Deflorian, 1996, at 63-106). Yet, subsidiarity operates merely as a form of exceptionalism. It serves as a political check on the judicially enunciated doctrines of Community autonomy and supremacy. As we have seen, autonomy and supremacy suggest the effect of norm making at the federal level on the now subordinate political levels. These doctrines do not, however, suggest the parameters of that norm making power. Neither do they necessarily suggest the standards by which the federal Institutions ought to measure the need to utilize the norm making power with which they have been vested. Subsidiarity is the name given to the means by which Community power is limited. It functions as a sort of proviso to the doctrines of supremacy and autonomy.
Subsidiarity, as the creature of politics, operates best at the political level within the Institutions of the Communities. It is at its most effective during periods when the Member States negotiate the nature of their relationship with the federal entity. The Maastricht Treaty is littered with the detritus of this process in the form of the various protocols negotiated by individual Member States or the exemption of Member States from newly assertable federal power. (E.g., TREATY ON EUROPEAN UNION, Protocol on Social Policy & Agreement on Social Policy Concluded Between the Member States of the European Community with the Exception of the United Kingdom of Great Britain and Northern Ireland; Protocol on the Acquisition of Property in Denmark; Protocol on Portugal; Protocol on France). The process leading to the draft Amsterdam Treaty also reflects the effectiveness of subsidiarity as shorthand for political bargaining between the layers of the European federal state. (Petite, 1998). Ironically, perhaps, the Amsterdam Treaty also produced a proposed protocol on subsidiarity. "Subsidiarity is now a legal concept, and the Protocol will undoubtedly give rise to case law. Moreover, laying to rest any doubts on this score, it confirms the dynamic view of subsidiarity; i.e. that the level at which it is appropriate to act can vary according to the circumstances . . . and confounds the view of subsidiarity as the repatriation of powers to the national capitals." (Petite, 1998, at 15).
Within the federal level, the arena of subsidiarity is the Council, and to some lesser extent, the Commission. Here, subsidiarity acts on the legislative process "as a focus for argument about the political desirability of Community action." (Weatherhill, 1995, at 170). The power to focus argument is not a guarantee of devolution from the federal level to the Member States. The pattern, at least at the level of the Community, has been to consider and reject as inappropriate, the devolution of legislating to the Member State level. Member States, however, continue to press the point, and the "true meaning" or implications of subsidiarity remain elusive. Consider, for example, the argument pressed by the Member States that whether or not an action of the Community falls within the competence of the E.U., the Community must always consider, as a matter of initial competence, whether the action could not be sufficiently achieved through action taken at the level of the Member States. (Weatherhill, 1995, at 170-71; Germany v. Parliament and Council (Deposit Guarantee schemes), Case C-233/94, [1997] ECR I- ___ (May 3, 1997) (subsidiarity must be considered in lawmaking at the Community level, but no detailed justification required when the Community decides to act)). It must be noted, though, that subsidiarity, as a formal matter, is only relevant in the areas of shared competence between Member States and the Community. In areas of exclusive Community competence, it has no role to play. Of course, the Treaty is singularly unhelpful in defining areas of exclusive and joint competence. One can broadly argue that any area covered by the EC Treaty would be exclusively within Community competence. The only exceptions would be in those areas where the EC Treaty expressly give the Member States a role to play (for example, Art. 129 and vocational training; Art. 128 and cultural solicitude). Conversely, areas of exclusive Community competence might be defined as limited to those areas in which the Member States are expressly forbidden to legislate. (Bermann, 1994).
At best, perhaps, subsidiarity suggests direction. Where harmonization suggests the content of law and norm making, subsidiarity provides the formula by which society decides at what level of generality a political or social decision is to be taken. To the extent it guides decisions at the national or sub-national level, it works against the imperialism of harmonization at the supra-national level. Yet, while subsidiarity provides direction, it does not suggest content. Subsidiarity suggests that the most general level of government within Europe is one with very limited power to create binding norm parameters within the constituent nation-states. The work of norm-setting is to remain, as it has since the seventeenth century, with the nation-state - except in extraordinary circumstances. That, anyway, is the theory.
The reality may be somewhat different. Decisions like those of the Working Time Directive case (United Kingdom v EU Council (Re Working Time Directive), Case C-84/94, [1996] All ER (EC) 877, [1996] 3 CMLR 671)(discussed below)) or Cornwall County Council (P. v. S. & Cornwall County Council, Case C-13/94, [1996] 2 CMLR 247) leave no room for subsidiarity--and no room for the peculiarities of Member State legal norms. "In so far as the law seeks to regulate relations in society, it must, on the contrary keep up with social change, and must therefore be capable of regulating new situations brought to light by social change and advances in science." (P. v. S. and Cornwall County Council, Case C-13/94, opinion of advocate general Tesauro, at 4). Of course, assuming one takes a very broad view of the meaning of exclusive Community competence, then the issue of subsidiarity would be irrelevant. That, certainly might be seen as the essence of the Working Time Directive Case where the ECJ explained that since Art. 118a vested the power to harmonize in the Council, the Council's determination to harmonize under Art. 118a "necessarily presupposes Community-wide action." (Id.). Likewise, in Cornwall County Council, if the principle of equality is covered under Art. 119 of the Community Treaty and if the Equal Treatment Directive is grounded in Art. 119, then the entire field of equal treatment is within the exclusive competence of the Community. It would then follow that neither Council nor ECJ would have to justify its decision in light of the subsidiarity principle. If this is so where harmonization is explicitly provided in the black letter of the Treaties, then subsidiarity is of even less relevance in those situations in which the ECJ attempts to construct overarching European norms in the form of general principles. For the ECJ, there is no place for the Member States in the construction of general principles of law, except indirectly as founts of such principles.
Of what use, then, is subsidiarity in the face of the legislative power of the centrality? The centrality, through its courts, creates the norms which regulate the internal actions of the Member States themselves. Hence, the meta-state assumes the role of source of new centralizing power. It would follow that subsidiarity must assume a role within the federal legislative process which is also subordinate to the fundamental principles on which the Community operates. As Bernard has noted, "[s]ubsidiarity is concerned with the means of furthering [common] values [shared between central and local institutions] but cannot provide a way out of fundamental conflicts about the values themselves." (Bernard, 1996 at 651). Values conflicts can only be resolved by the central authority--and so we introduce the discipline of harmonization and hegemony. "This is inevitable. In society as it is today, in which customs and morals are changing rapidly, citizens are guaranteed ever wider and deeper protection of their freedoms." (P. v. S. and Cornwall County Council, Case C-13/94, opinion of advocate general Tesauro, at 3). Thus, subsidiarity may well work against its own interest. In this view, subsidiarity implicitly assumes that the state is little more than a mere geo-political entity. This construction of the "state" might well permit Council, Commission and ECJ to ignore the state in fundamental rule making , as opposed to "political" analysis.
Indeed, the evidence is provided by the ECJ itself in its great "general principles" cases. In these cases, the ECJ quite self-consciously assumes the role of centralizing cultural authority. In such a role, the ECJ provides a strong indication of the value of the principle of subsidiarity as a source of protection of Member State autonomy as against the power to declare general principles of community law. Quite simply, subsidiarity is irrelevant in connection with the consideration of the most basic questions affecting a supra-national grouping. The doctrine of subsidiarity, then, is solicitous of Member State norm-making power only after the supra-national entity has created the fundamental norms under which all rule making will be interpreted and judged. Once basic choices are made at the federal level, subsidiarity is free to come into play. Subsidiarity is a tool of legislative implementation, not of core legislative formulation.
Cultural solicitude is the step sister of harmonization and subsidiarity. Ignored until recently, it contains within it the possibilities of revolution. It poses the greatest potential threat to the nation-state since the dismemberment of the Roman Empire. Cultural solicitude, in extremis, contains within it the possibility of the re-tribalization of Europe. It is the embodiment of the desire for the dismemberment of multi-national nation-states, in the name of self-determination. Cultural solicitude has been the handmaid of the dismemberment process that in its last iteration began in earnest in 1918 with the dissolution of many of the old imperial federations. It was then used and misused again and again in the 1930's and 40's, only to become quiet during the height of the battles between the American and Soviet federations. Re-tribalization as self-determination is regaining momentum at the close of the century, though it appears now at times in more benign form. One need only contemplate Spanish devolution and Czechoslovak or Jugoslav dissolution to understand the way in which cultural solicitude does not respect national borders.
Within a federal structure, cultural solicitude challenges the neat little directional patterns set up under the "rule" of subsidiarity." More ominous, perhaps, cultural solicitude owes no allegiance to the foundational norm structure of the supra-national organization. This failure of allegiance is most apparent when supra-national norms do not square with the practices of the particular "culture." When over-ridden by the harmonizing power of the national or supra-national entity, cultural difference is emasculated, as it tends to be today in Europe. Perversely, absent agreement that "culture" is subject to the "rule of law" emanating from superior political institutions, sub-national tribes may well wind up the most powerful force of all in the coming century.
Within the E.U., solicitude for the peculiarities of sub-national cultural practices is given short shrift. The place of cultural solicitude is evidenced by Art. 128 of the Community Treaty. More of an artifact of propaganda than of power, Art. 128 brazenly, if hyperbolically, announces that the "Community shall contribute to the flowering of the cultures of the Member States." What Art. 128 potentially gives, the actions of the Member States take away, for instance, by their continuing resistance to the addition of a protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms covering minority and cultural rights. The expression of culture at other than perhaps the national level is also tightly controlled. For the moment, even the suggestion that Council action under Art. 128 be subject to qualified majority voting has been rejected. The Draft Treaty of Amsterdam preserved the unanimity requirement. (Petite, 1998, at 34). Thus, the political space for sub-national expression is limited to a sort of "photographic opportunity" solicitude. Europe still heeds the lessons of "self-determination," effectively used to carve up Czechoslovakia in the 1930's and Jugoslavia in the 1990's.
Despite the language of Art. 128(4) that the "Community shall take cultural aspects into account in its action under other provisions of the Treaty," where the issues touch on matters deemed to involve a fundamental characteristic of the European "character" (the supra-national character if you will), then sub-national cultural idiosyncracies may not intrude. "To my mind, the law cannot cut itself off from society as it actually is, and must not fail to adjust to it as quickly as possible. Otherwise it risks imposing outdated views and taking on a static role." ( P. v. S. and Cornwall County Council, Case C-13/94, opinion of advocate general Tesauro, at 4). But of course, we speak here of society in the aggregate -- what we hear is the command: "assimilate in fundamental matters or be cast aside." Not that this is wrong -- there is something disturbing in a federation which is run on the principle of "smallest common denominator." But we should not fool ourselves into believing that, at least with respect to fundamental matters, cultural solicitude for sub-national groupings ought to have much weight. Thus, when commentators consider the democratic value of ECJ jurisprudence, the peculiarities of ethnic cultural solicitude are ignored. Consider as fairly typical, Hajalte Rasmussen's argument that the ECJ's activism in matters of culture and politics is democratic to the extent it reflects the will of the people better than the representatives of the Member States within the institutions of the Community. (Rasmussen, 1986, at 101-102).
Moreover, even where solicitude for culture acquires national dimensions, the concerns of such cultural sensibilities must defer to federal norms. The "general principles" cases of the ECJ demonstrate the effectiveness of cultural sensitivity as a second order concern. Consider the "cultural" integrity preservation cases of the ECJ under Art. 30. In those cases, the ECJ opted to "colonize" national and cultural sentiment. Public morality, national sensibilities and sub-national culture, are all important concerns. But such concerns are bounded strictly by the overarching principles which can be extracted from the Treaties. (EC Commission v. Belgium (Re Cable television broadcasts), Case C-11/95, [1997] 2 CMLR 289)).
Left in the wake of this dynamism are the cultural norms which one might otherwise think should have helped inform the Court's decision. Which cultural norms? The cultural norms of minorities choosing not to conform to the fundamental norms being crafted at the level of the Community as a whole. Cultural solicitude, then, is limited to the margin. Yet perversely, even the definition of that margin must be a matter of foundational concern. The definition of the margin cannot be left to the idiosyncracies of the sub-national culture and its "conflict of laws" rules. Cultural solicitude, protection of sub-national minority ethos, is reduced to the ultimate residuum. This reduction follows from the inherent circularity of our understanding of what necessary solicitude of culture means. Consider again the circularity of the requirement in Article 128 that the "Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore." Art. 128(1). It is quite a task to surmount the oppositions lying just below the surface of this multi-tasking command.
What is at stake here is the concept of social justice and European integration. The fact that "in Community law there is no precise provision specifically and literally intended to regulate the problem" (P. v. S. and Cornwall County Council, Case C-13/94, opinion of advocate general Tesauro, at 8) should not prevent the Court from imposing on all sub-national cultures a harmonizing conception of "the great value of equality" (id.). This equality is derived from "principles and objectives of Community social law, the statement of reasons for the directive underlining ´the harmonization of living and working conditions while maintaining their improvement' and also the case law of the Court itself, which is ever alert and to the fore in ensuring that disadvantaged persons are protected." (Id.).