Differentiated Integration:
Some member states are not involved in everything the EU does based on their preferences.
EG: Sweden not using the Euro or being part of the Eurozone.
The progressive widening of EU competencies has led to a system whereby member states can opt-out of certain regimes. Allowing this means that the EU can progress without constantly being restricted by a minority of states who oppose these developments.
Member states typically opt out based on national (political) sensitivity and apprehension to new schemes or during treaty reform. States may then enter into further integration if the system then proves to be working.
There is also a system of ‘enhanced cooperation’ where a group of (at least) 9 EU member states can opt-into adopting EU legislation, under qualified majority voting, that applies only to them.
This is to be a last resort when greater cooperation and compromise (through the usual legislative means) cannot be achieved. [1] If this were the norm, the application of EU law would be very fragmented and lack cohesion. Therefore, it is of limited use.
International treaties may also be adopted between member states. These are not part of EU law and the EU (often) does not have competencies in these fields, hence explaining why they are entered into separately.
For examples, see EMU Week.
Alternatively, some member states are not part of the EU because they are apprehensive or show resistance to EU integration, have left the EU, or because the EU has not yet approved their membership. In these circumstances, states may opt-into certain EU schemes and policy areas.
EG: Norway being part of the EEA, despite not being in the EU.
Differentiated integration is often temporary: other member states tend to join the relevant policy in following years. [2]
Constitutional Visions of the EU – Politicisation vs Interdependence: [3]
The higher the interdependence in certain fields, the higher the cost of non-participation is.
EG: If countries wish to trade freely with the EU, it is in their interests to be in the EEA.
The higher the politicisation of a particular policy area, the higher the cost of participation is. Different countries are sensitive to different policies, so it makes sense to allow integration without making all member states agree to every policy.
Normative Accounts of Differentiated Integration:
Viewing the EU as a uniform integration model, differentiated integration leads to disintegration. For example, (prior to Brexit) the UK opted out of the most policy areas of any member state, tailoring its European integration. It is argued that this undermines the functioning of the EU as the focus comes on national interests over European ones. Unity is required to make the EU function effectively. This is especially important in regards to the internal market and policies that do not work unless all member states are in consensus (EG: climate change policies).
Viewing the EU as a differentiated integration model, allowing countries to opt-out of certain schemes rather than veto then allows the EU to progress with its integration without compromising national values in the states that oppose the progression. This makes the EU sensitive to national discontent, allowing individual member states to remain outside of certain aspects of integration. This strengthens the EU’s authority and relieves then tension between sovereignty and unity without jeopardising efficiency.
Leaving the EU - Brexit and its Implications:
As a Union based on consent, it is inherent that member states can leave. This act of leaving is the ultimate manifestation of preserving national sovereignty and diversity – to ‘take back control’.
Brexit was fraught with issues of national self-determination: how the UK will remain autonomous in fields that are critical for its national democratic identity.
There is an implicit tension between whether the EU policy making enhances or limits the capacity to structure the functioning of society.
Article 50 TEU and the Process of Withdrawal:
The Balance of Competencies Review looked over the EU competencies to determine what the government believed should and should not be EU competencies. The review concluded that EU integration was well-tailored to the demands of the UK.
Following the Referendum in 2016, the UK had established that it wanted to leave the EU, but not specifically why. No one knew exactly what Brexit actually meant.
Some people disagreed with EU integration because of fishing, others over welfare tourism and migration, others over the single market etc.
Article 50 sets out the process of leaving the EU in accordance with the constitutional requirements of the member state seeking to leave by giving notice to the European Council. By default, negotiations take place for 2 years and this can be extended.
Article 50 TEU:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements
2. A Member State which decides to withdraw shall notify the European Council of its intention (…)
3. The Treaties shall cease to apply to the State in question (…) two years after the notification period referred to in paragraph 2, unless the European Council, in agreement with the Member State in question, unanimously decides to extend this period
4. (…)
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure in Article 49 TEU.
A member state may revoke their intention to withdraw once notification has been given. [4]
Legal Implications of Leaving the EU:
Problems with whether member states will retain / inherit EU law following disintegration:
2000 directives and 8400 regulations to be dealt with.
50% of commercial transactions are affected by EU law (import/export, financial services etc.).
Status of EU nationals in the UK / UK nationals in the EU uncertain.
Status of risk and regulatory agencies.
Free movement / ‘passporting’ rights.
Data privacy and security concerns (countries outside of the EU must have the same data protection standards as GDPR).
Problems specific to the UK:
Without a codified constitution, it is unclear what the requirements set out in Art 50 TEU actually are.
Fragmented voting across the UK (Scotland and N Ireland voting to remain).
Status of the border between Ireland and N Ireland (whether or not there will be a hard or soft border).
Negotiating Brexit:
Two level game theory is the idea that domestic constraints create incentives for intergovernmental behaviour. The EU has economic incentives for a ‘hard’ Brexit; punishing the UK makes other member states not want to leave, thus strengthening the Union.
EG: if citizens want to leave the EU for fishing reasons, a withdrawal agreement that does not reinstate British fishing rights will not be passed through Parliament. This strengthens the negotiating position of the UK.
The Withdrawal Agreement (WA):
The European Council had a unanimous mandate for negotiations. The Commission was the institution that negotiated the agreement. This was then approved by the Council using qualified majority voting.
The Withdrawal Agreement covers citizen rights, financial settlement and the Northern Ireland (Border) Protocol. It also provisions for a transition period and mechanisms for negotiating a future relationship with the EU.
Citizens’ Rights:
Obligations are at a standstill for EU workers / citizens who were already in the UK prior to December 2020. This is a life-long protection and includes descendants and family members.
If this is infringed, this can be challenged under EU law as an EU right, even in domestic courts.
Institutional Configuration:
There is a yearly joint committee on ‘implementation, application and interpretation’.
National courts have an obligation to have ‘due regard’ to EU law, but do have limited ability to depart from this.
Disputes over the Agreement are settled ultimately by arbitration. Where there is a question on a point of EU law, this is referred to the CJEU.
Northern Ireland Protocol:
Due to the complexity of the situation in Ireland, there is the question of where the border between the UK and EU should be: whether it is between Ireland and Northern Ireland, between the island of Ireland and Great Britain, or none at all. This issue was particularly sensitive due to the significance of the open boarder in Ireland being part of the peace process following the Troubles.
Presently, Northern Ireland remain in the EU customs space and follows the single market norms for products, state aid and VAT. Regulatory controls take place at the Irish Sea. This is overseen by the Commission and CJEU.
Problematic area: Certain products could travel much easier into Northern Ireland from the EU than the UK (‘Sausage Wars’).
Reform Proposals: [5]
Role of the Commission and CJEU in enforcement to be removed / reduced.
Reforming the rules around SPS, state aid and VAT.
EU Opposition:
The proposals were rejected by the EU during WA negotiations. The EU refuses to renegotiate these issues because an agreement has just been met; changing this undermines the EU legal order.
Reassessing the Agreement affects the mandate of the European Council. Therefore, renegotiations cannot occur unless the Council votes in favour of it.
It would undermine the autonomous legal order which presumes the involvement and enforcement by CJEU.
Proposed Solutions:
Limited enforcement on border from EU to UK.
Green lanes for imports into N Ireland for products that will not continue onto an EU member state (remain in UK / N Ireland).
Dynamic alignment: N Ireland opt-in to follow EU rules on single market, decreasing the need for a hard border.
Dual regulatory regimes: N Ireland able to choose between UK and EU regulation. Would work while regulatory standards are comparable.
Regulatory convergence on border check monitoring and SPS agreement, decreasing the need for checks at the border.
WA Art 16 – Safeguard Clause:
‘If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.’
WA Art 18 – Vote in 2024 by Belfast Assembly on extension.
The Trade & Cooperation Agreement (TCA):
The Commission negotiated the agreement based on the mandate of the European Council. This was then approved by the European Parliament.
The Agreement is of limited scope, covering a set of rules starting in 2021 and moving forward. It's contents mostly surround free trade of goods between UK and EU with SPS and VAT rules applying, police cooperation, and standstills in tax, environment and labour law. The Agreement is to be reviewed every 5 years.
Disputes over the TCA are settled ultimately by arbitration (not the CJEU). Therefore, it relies more strongly on political enforcement.
Other Forms of Cooperation - Lessons from Beyond:
Swiss Model:
A series of bilateral agreements covering sector-specific access to the EU single market.
7 Guillotine agreements: transport, agriculture, procurement, free movement of persons, and 9 non-guillotine agreements: Schengen and Dublin, taxation, environment etc.
Turkish Model:
A customs agreement with the EU while remaining outside the single market.
Other Models:
EEA
ISDS
The Brussels Effect:
Since the EU is the largest GDP economy in the world with a high level of regulation, qualities of the EU market have an extraterritorial effect. To be able to sell within the EU, the standards of the EU must be met, which incentivises extraterritorial paralleling.
EG: a MacBook produced in China has to have EU safety and quality standards to be sold within the EU. Apple then make the MacBook according to the EU standards.
Resources:
References:
[1] Case C-146/13, Spain v European Parliament and Council [2] Schimmelfennig and Winzen, ‘Differentiated EU integration: maps and modes’ (2020) EUI Working Papers (RSCAS) 24 [3] Schimmelfennig, Leuffen and Rittberger, ‘The European Union as a system of differentiated integration: interdependence, politicization and differentiation’ (2015) 22(6) Journal of European Public Policy 764 [4] Case C-621/18 Wightman v Secretary of State for Exiting the EU [5] UK Command Paper (July 2021)
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