Differentiation in European Union Law

by Tuytschaever, Filip

• ISBN13: 9781841130729
• ISBN10: 1841130729
• Format: Hardcover
• Copyright: 1999-06-19
• Publisher: Hart Publishing

Summary

What is meant when politicians and lawyers talk of an opt-out,of multi-speed Europe, of variable geometry and even of European Union a la carte? Will closer co-operation be authorised and where? These and many other questions are addressed in this new book, which deals with the intriguing and controversial development of increased differentiation in European Union law. Adopting a law in context approach, the book offers an analysis of differentiation from the Treaty of Rome to the present, including the 1996 Intergovernmental Conference and the Treaty of Amsterdam, a categorisation of differentiation and a search for the various causes and objectives of differentiation and its consequences for the future of the European integration process. Particularly relevant in view of the ratification of the Treaty of Amsterdam, legal scholars and political scientists will find this book invaluable to keep abreast of the present debates on European constitutional law.

Author Biography

Filip Tuytschaever is a Member of the Brussels Bar and Assistant in European Law at the University of Brussels

Table of Contents

Table of Cases	xvii
Table of Legislation	xxi
Abbreviations	xxxiii
Introduction	1	(6)
From Rome to Maastricht. A Historical Overview of Differentiation	7	(26)
The Treaty of Rome	7	(8)
The Single European Act	15	(8)
The Treaty on European Union	23	(10)
From Masstricht to Amsterdam. Differentiation and the 1996 IGC	33	(16)
Differentiation in the Run-up to the 1996 IGC	33	(10)
The Commission	35	(2)
The European Parliament	37	(2)
The Reflection Group	39	(3)
The European Council held in Turin on 29 March 1996	42	(1)
The 1996 IGC Discussion on Differentiation	43	(6)
Differentiation and the Treaty of Amsterdam	49	(56)
EC	49	(36)
Closer Co-operation	49	(1)
General Enabling Clause	49	(5)
Authorisation of Closer Co-operation	54	(1)
Additional Material Criteria	54	(3)
Procedural criteria	57	(4)
Judicial control	61	(2)
Implementation and Financing of Closer Co-operation	63	(1)
Implementation	63	(5)
Financing	68	(1)
Joining of the Non-participating Member States	69	(1)
Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons	70	(1)
Background	70	(5)
Position of the Member States in Title IIIa TEC	75	(2)
Position of the UK and Ireland	77	(1)
Protocol on the Application of Certain Aspects of Article 7a TEC to the UK and to Ireland	77	(1)
Protocol on the Position of the UK and Ireland	77	(3)
Position of Denmark	80	(1)
Other Elements of Differentiation	80	(5)
Title V TEU	85	(4)
Title VI TEU	89	(9)
Recasting of Title VI TEU	89	(1)
Closer Co-operation	90	(1)
Authorisation of Closer Co-operation	91	(1)
Additional Substantive Criteria	91	(1)
Procedural Criteria	91	(2)
Judicial Control	93	(1)
Implementation and Financing of Closer Co-operation	94	(1)
Implementation	94	(3)
Financing	97	(1)
Joining of the Non-participating Member States	97	(1)
Differentiated Integration of the Schengen Acquis into the EU Framework	98	(7)
Integration of the Schengen Acquis	98	(1)
The Rule. Article 2 of the Schengen Protocol	98	(1)
The Exception (I). Article 3 of the Schengen Protocol (Denmark)	99	(1)
The Exception (II). Article 4 of the Schengen Protocol (UK and Ireland)	100	(1)
Further Development of the Schengen Acquis	101	(1)
The Rule. Article 5 of the Schengen Protocol	101	(1)
The Exception (I). Denmark	101	(2)
The Exception (II). UK and Ireland	103	(2)
Differentiation and the Principle of Non-Discrimination	105	(11)
What is Discrimination?	105	(2)
The Comparability Test	107	(2)
The Justification Test	109	(2)
Differentiation and Proportionality	111	(2)
Differentiation and Objective Justification	113	(3)
A Categorisation of Differentiation	116	(20)
Parameters	116	(8)
Actual and Potential Differentiation in Primary or Secondary Law	116	(1)
Inter-State and Intra-State Differentiation. Temporary and Non-temporary Differentiation	117	(3)
General and Specific Differentiation	120	(1)
Positive and Negative Differentiation	121	(3)
Categories	124	(1)
Actual Differentiation
Primary Law	125	(1)
Primary Law	125	(1)
Specific	125	(1)
Intra-State differentiation	125	(1)
Inter-State differentiation	125	(1)
Temporary differentiation	125	(1)
Non-temporary differentiation	126
Secondary Law	125	(4)
General	127	(1)
Specific	128	(1)
Intra-State differentiation	128	(1)
Inter-State differentiation	128	(1)
Temporary differentiation	128	(1)
Non-temporary differentiation	129	(1)
Potential Differentiation
Primary Law	129	(4)
General	129	(1)
Intra-State differentiation	129	(1)
Inter-State differentiation	129	(1)
Temporary differentiation	129	(2)
Non-temporary differentiation	131	(1)
Specific	132	(1)
Intra-State differentiation	132	(1)
Inter-State differentiation	132	(1)
Temporary differentiation	132
Non-temporary differentiation	131	(2)
Secondary Law	133	(3)
General	133	(1)
Intra-State differentiation	133	(1)
Inter-State differentiation	133	(1)
Temporary differentiation	133	(1)
Non-temporary differentiation	134	(1)
Specific	135	(1)
Intra-State differentiation	135	(1)
Inter-State differentiation	135	(1)
Temporary differentiation	135	(1)
Non-temporary differentiation	135	(1)
``Europe a la Carte---Legal Limits to a Multi-Speed Europe with Various Groupings''	136	(82)
Multi-speed	138	(19)
Origins	138	(4)
Models of Multi-speed Integration	142	(1)
Multi-speed Integration and Objective Differences (I). ``Abgestufte Integration''	142	(1)
Procedures	143	(1)
Field of Application	143	(2)
Assessment	145	(1)
Multi-speed Integration and Subjective Differences. ``A Formula for Differentiated Integration''	146	(1)
Procedures	147	(1)
Field of Application	147	(1)
Assessment	147	(1)
Multi-speed Integration and Objective Differences (II). The Road to the Single Currency	148	(2)
Limits of Multi-speed Integration	150	(1)
Multi-speed Integration and Objective Differences	151	(3)
Multi-speed Integration and Subjective Differences	154	(3)
A la Carte	157	(13)
Origins	157	(4)
What is Integration a la Carte	161	(2)
From Integration a la Carte to Closer Co-operation	163	(7)
Case Study: Differentiation and the EC's External Relations	170	(13)
External Relations in Stage Three of EMU	170	(1)
The Rule. Article 109 TEC and the Declaration on Articles 109, 130r and 130y of the TEC	170	(3)
The Exceptions. Member States with a Derogation and with an Opt-Out	173	(1)
Member States with a Derogation	174	(2)
Member States with an Opt-out	176	(1)
EMU as a Paradigm for ``Differentiated External Relations''	177	(1)
Negotiation and Conclusion of Agreements	177	(1)
Community Agreements	178	(1)
Mixed Agreements	178	(2)
Implementation of Agreements	180	(1)
Joining of Non-participating Member States	180	(1)
Community Agreements or Mixed Agreements Concluded by the Community and the Participating Member States	180	(1)
Agreements Concluded by the Non-participating Member States	181	(2)
Variable Geometry	183	(35)
Origins	183	(1)
EC R&TD Policy	184	(1)
Context of R&TD Collaboration	184	(4)
Muddling Through the First Experiences	188	(5)
From CREST to ESPRIT and the First R&TD Framework Programme. The Development of a Parallel EEC R&TD Policy	193	(6)
A ``European Technology Community'' or Eureka?	199	(3)
Towards a Europeanisation of the R&TD Policy	202	(1)
The SEA	202	(4)
The TEU and Beyond	206	(4)
What is Variable Geometry Integration?	210	(2)
Variable Geometry in Other Policies?	212	(6)
Differentiation in Context	218	(43)
Causes of Differentiation	218	(3)
Objectives of Differentiation	221	(15)
Regulatory, Redistributive, Distributive and Constitutional Policies	221	(5)
Differentiation and Intergovernmental Co-operation outside the Treaty Framework	226	(4)
Differentiation and Two Europes	230	(6)
Consequences of Differentiation	236	(25)
Differentiation, the ``All-or-nothing Effect'' of EU Membership and the Division of Competence between the EU and the Member States	237	(3)
Differentiation as a New Form of Subsidiarity	240	(3)
Differentiation, the Member States as Masters of the Treaty, and the ECJ	243	(2)
Differentiation and the EU's Constitution	245	(2)
Two Competing Views on a Europe a la Carte	247	(8)
Variable Geometry Europe	255	(6)
Annex I: Tables of Equivalences	261	(6)
Annex II: 1996 IGC Documents on Differentiation	267	(2)
Selected Bibliography	269	(20)
Index	289