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About this book

The book examines how the interests of the member states, which provide the primary driving force for developments in European integration, are internalised and addressed by the law of the European Union. In this context, member state interests are taken to mean the policy considerations, economic calculations, local socio-cultural factors, and the raw expressions of political will which shape EU policies and determine member state responses to the obligations arising from those policies. The book primarily explores the junctions and disjunctions between member state interests defined in such a manner and EU law, where the latter expresses either an obligation for the member states to comply with common policies or an acceptance of member state particularism under the common EU framework.

Table of Contents

Frontmatter

Between Compliance and Particularism

Member State Interests and European Union Law
The European Union was brought to life by its Member States with a view to meeting certain local needs and responding to particular national interests. The process of integration as well as the fate of individual polices have continued to be directly influenced by the interests brought by the Member States to the European arena and negotiated among them. From this perspective, European integration serves as a vehicle for the promotion of the particular interests of individual Member States. However, membership in the EU has proved to be different from the participation States in other international organisations. The Member States are bound under constitutional principles to act loyal to the objectives of integration and cooperate sincerely with the Union institutions and the other Member States. They have imposed on themselves general and detailed binding legal obligations and established a multi-layered system for the effective enforcement of those obligations. Thus, the achievement of the common objectives pursued in the Union, and with that the realisation of the corresponding national interests of the Member States, depends on Member State conduct being brought under frameworks of compliance.
Marton Varju, Veronika Czina

In Search of Limits for the Protection of National Identities as a Member State Interest

The tension between commonly agreed EU objectives and Member States’ interests is a characteristic feature of integration in the European Union. Already in the context of the EEC Treaty, Member States were precluded from adopting measures that would obstruct the internal market unless they could invoke very good reasons permitted by the Treaty or the case law of the Court of Justice. Seeing the purpose of the founding Treaties, namely taming nationalism and sovereignty, national identities did not find a place in the initial Treaty framework. However, since the introduction of the principle on the protection of national identities in the Treaty of Maastricht, this concept has been invoked by Member States, quite often for the protection of fundamental national interests. This chapter aims at exploring the constraints in invoking Article 4(2) TEU and does so by looking at the main features indispensable for the application of EU law, at the principle of proportionality and lastly, at the founding values protected in Article 2 TEU.
Darinka Piqani

EU Loyalty and the Protection of Member States’ National Interests

A Mapping of the Law
In a general analysis on the protection of national interests of the Member States of the European Union, it is particularly apt to investigate their interplay with the principle of sincere cooperation. Enshrined in EU primary law, in particular in Article 4(3) TEU, that principle has evolved during the time into a veritable cornerstone of the EU legal order. Even though scholars have recently (re)started to pay attention to the loyalty principle and related implications, a general reflection on the role it plays—or should play—in considering/protecting the national interests of the Member States is still lacking. This contribution tries to fill the gap by charting the major possible interactions between loyalty and Member States’ national interests and the consequent legal trajectories. Our basic assumption is that of a progressive integration between the Member States’ and the Union’s legal orders—what will be called here the “Ever Closer Union Model”. According to this model, the gradual integration of the national and the EU legal orders will give rise to an expanding common legal area, which is where the loyalty principle and Member State interests interact. This chapter argues principally that in such a space the principle of loyalty plays a defining role in strengthening the protection of the common Union interests, securing in turn the related national interests of the Member States. This does not mean, however, that national interests cannot diverge from the EU common interests. Beyond the political tools, there are concrete legal avenues provided in the Treaties enabling the Member States to preserve their interests within the Union. Our analysis is completed by examining how the protection of Member State interests may play out in emergency scenarios, such as common policy crises, how a principle of solidarity may influence the operation of the principle of loyalty, and how loyalty towards the Union and the other Member States is affected by a State acceding to or leaving the EU.
Federico Casolari

EU Post-crisis Economic and Financial Market Regulation

Embedding Member States’ Interests Within “More Europe”
In the wake of financial and economic crisis, the European Union took unprecedented steps to build an institutional framework for financial market governance in Europe. This chapter will examine the EU law techniques used to integrate the interests of the Member States in setting up and operating that framework. Following a brief overview and recapitulation of the developments having taken shape in the wake of crisis brining “more Europe” in this policy domain, the chapter will look at how Member States’ interests have been embedded directly into the post-crisis EU regulatory framework. It will be submitted that two different and complementary kinds of “interest-inclusion” techniques can be identified, more or less explicitly, within the newly created financial market supervision frameworks. This inclusion and presumed safeguarding of Member States’ interests by virtue of administrative law tools is not entirely unproblematic. There are clear challenges associated with such solutions for “interest-inclusion” which question whether there is a modest way forward in attempting to improve the legitimacy of such arrangements.
Pieter Van Cleynenbreugel

Member State Interests and EU Internal Market Law

The aim of this paper is to show to what degree Member States’ choices in pursuing their national interest is limited by EU internal market law. Additionally, the question is raised whether the EU legal framework is apt to accommodate measures emanating from diverse social, cultural and political settings at the national level. The present study seeks to improve our understanding of the capacity of the European Union to tackle particularistic Member State behaviour. It argues in line with other academics that the current extensive reach of internal market rules as developed by the Court of Justice should be rolled back in order to preserve more room for national public policy choices. On the other hand, the paper takes note of the fact that drawing a precise line between legitimate national policy measures and hidden regulatory or other protectionism is a difficult exercise.
Mónika Papp

Member State Interests in EU State Aid Law and Policy

This chapter investigates the role of the national interest in the context of EU State aid law and policy. Its aim is to identify, analyse and evaluate the interaction between national industrial policy preferences and the policies that EU State aid law allows Member States to pursue through State intervention. In doing so, it seeks to address the following key questions: to what extent are national preferences subsumed in the notion of “common interest”? What scope does State aid law allow for the pursuit of industrial policy at EU and at national level? Does State aid policy promote a certain kind of industrial policy?
Francesco de Cecco

Member States’ Interest in the Enforcement of EU Competition Law

A Case Study of Article 101 TFEU
The decentralisation of the public enforcement of Articles 101 and 102 TFEU under Regulation 1/2003 altered not only its institutional setup by delegating enforcement responsibilities to national competition authorities (NCAs) and courts, but also the possibilities for Member States to implement their respective national competition policies and the domestic interest considerations embedded therein. In the multilevel governance framework established by Regulation 1/2003, the enforcement of EU competition law takes place exposed to the national political, institutional and procedural context. In particular, national laws and legal and administrative practices, which bind NCAs and national courts, directly influence the application of Articles 101 and 102 in the national territory. This chapter examines examples of such national measures and practices and assesses their impact of re-nationalising EU competition law and policy.
Or Brook, Katalin J. Cseres

Against the Grain? Member State Interests and EU Procurement Law

EU public procurement law has been increasingly criticised for the restrictions it places on Member States’ regulatory autonomy and for the imposition of neoliberal conceptions of State intervention in the economy that do not necessarily match the general preferences of Member States with a social market economy orientation. Following that view, it could be thought that there is a limited (and possibly narrowing) space for Member State interests in EU public procurement law—or, in other words, that pursuing national interests goes against the grain of the internal market foundations of the 2014 Public Procurement Package. The purpose of this chapter is to dispel this conception by making three points. First, that despite its competition-orientedness, the 2014 Public Procurement Package does not impose a “one-size-fits-all” straitjacket on domestic economic systems, but is rather compatible with diversity of economic models at national level. A series of complex trade-offs resulting from the last revision of the EU public procurement rules, where Member State interests played a multifaceted role, have consolidated a competition-based model with significant flexibility for non-market and non-competed mechanisms, as repeatedly tested before and confirmed by the Court of Justice. Second, that EU public procurement law, however, does appropriately prevent Member States from pursuing protectionist policies, even if they consider them to be in their national interest—quod non, because the proper working of the internal market is both in the collective interest of the EU and of the individual Member States. Third, that EU public procurement law, in particular in its current incarnation in the 2014 Public Procurement Package, emphasises the ability of Member States to pursue secondary policies (such as the promotion of innovation or sustainability) in a diverse manner, in accordance with their domestic interests and local particularism. On the whole thus EU public procurement law allows Member States significant space to pursue their national interests, always provided that they are also compatible with their own interest in the proper functioning of the internal market.
Albert Sanchez-Graells

Member State Interests and the EU Law on Unfair B2C and B2B Practices

The law against unfair business-to-consumer and business-to-business practices in the EU is an area where the interests of the European Union and those of its Member States interact rather intensively. On the one hand, the Union, as well as its Member States, strive to achieve the relevant common policy objectives. On the other, national governments are keen to preserve their authority in defining the desirable standard of competition and consumer protection. The gradual harmonisation of the law has led to an expansion of the EU’s interests, inevitably creating tensions with interests of the Member States. There are visible discrepancies between the expectations of the Member States when they agreed, by offering concessions, to the furthering of EU policy in this domain and the ultimate position taken by the EU’s interests vis-à-vis those safeguarded by the Member States. Overall it is questionable whether an appropriate balance has been established between the EU’s predominantly market-related policy goals and the complex array of national interests in the analysed field.
Monika Namysłowska, Agnieszka Jabłonowska

Member State Interests and European Union Law

The Case of Health Policy and Health Systems
In matters of health policy, the Member States enjoy extensive retained competences and are prepared to act in the protection of their prerogatives and discretion. Their principal interest is to protect from EU intervention their ability to develop, operate and finance national health systems as dictated by domestic political, social and economic factors. As demonstrated by the example of cross-border health care, the Member States are acutely aware of the limitations which may follow from EU law—specifically, the fundamental freedoms—for the exercise of their health policy competences, which provides an incentive for them to legislate on the matter clarifying and consolidating the boundaries between EU obligations and Member State discretion. In contrast, EU membership has also given opportunities for the Member States to realise interests in the health policy domain which require a collective effort from the affected—interdependent—States. This led to the Member States conferring powers and functions to the Union and its institutions to develop cross-border policies and introduce cross-border obligations. In the wake of the financial and economic crisis, the Member States were also confronted with a new form of intervention by the Union—under the framework of common macroeconomic and fiscal governance—where, as dictated by the common interests, national health systems, health care budgets and health care reform are subject to external monitoring and rather substantive external constraints.
Mária Éva Földes

Managing Novel Food Technologies and Member States’ Interests

Shifting More Powers Towards the Member States?
The contentiousness surrounding novel food technologies and their risks is reflected in the tensions between the different actors involved in the EU decision-making process. Asymmetric relationships between competing European and national policy choices have led EU Member States to challenge the current governance system and existing regulatory frameworks that do not accommodate consumer concerns and more generally non-scientific factors. This chapter argues that initiatives that aim to challenge and reverse the trend towards centralisation are crucial to the strengthening of the EU system by giving greater leeway to the Member States in the authorisation procedures for novel food technologies. With multilevel governance and subsidiarity, the control and influence of supra-national entities are limited and lower level entities play a growing role in the regulation of novel food technologies. In contrast, fragmentation within the risk analysis for novel food technologies favours the weight of scientific evidence within the decision-making process and encourages centralisation. This problematic fragmentation must be tackled since it prevents non-scientific factors from being considered across the whole approval systems for novel food technologies.
Ludivine Petetin

Local Interests and Social Integration in Europe

Integrating the Member States Under the European Pillar of Social Rights?
One of the declared aims of the EU is to set up fair and well-functioning labour markets with the ultimate goal of creating better-performing economies and more equitable societies in Europe. The EU’s intervention is, however, grossly delimited by the competences and the autonomy retained by the Member States in the social domain as well as by the closely protected prerogative of the Member States to define the fundamental principles of the national system of social protection. Integration in the social field is also inhibited by the diversity of the institutional setups of local socio-economic models (capitalisms), which prevents institutional convergence among the Member States. In this light, social integration in the EU, especially when designed to be implemented through binding legal regulation, faces considerable difficulties, which raises doubts about the level of integration achievable. This may well be particularly true for the recent initiative to revive the social dimension of European integration under the European Pillar of Social Rights, which in the light of previous experiences has to overcome fundamental divergences of interests in the different Member States.
Sára Hungler

The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations

This contribution clarifies the procedural and substantive implications of the duty of sincere co-operation in order to identify the room of manoeuvre for individual Member States at the international stage. Based upon an analysis of the relevant case law of the European Court of Justice, it is argued that the implications of the loyalty principle essentially depend upon the particular context of the EU’s international involvement and, more specifically, upon the implications of a Member State’s intervention for the unity of the EU’s representation and the uniform application of EU law. Whereas this approach is instrumental to achieve the objectives of the EU’s external action as expressed in Article 21 TEU, it may nevertheless have certain paradoxical consequences from the perspective of the Member States.
Peter Van Elsuwege

Member States’ Interests and the Common Commercial Policy

The importance of the Common Commercial Policy (CCP) within the EU is considerable not only in economic and trade policy terms but also in terms of the role it played in the evolution of the EU legal order. It provided an early example for what is essentially supranational policy-making and it also served, as driven by the debates surrounding the Court of Justice’s case law in the 1970s, as a “laboratory” for determining the allocation of competences between the Community and the Member States. The exclusive EU competence established for the CCP in that process had major implications for Member State trade interests as well as their trade policy autonomy. These developments in the real world were, however, largely ignored by legal scholarship just as the question of how the emerging legal framework had shaped the role of the Member States in designing and delivering the CCP. The primary aim of this chapter is to explore this analytical perspective and determine on that basis the limits of the discretion that is still available in this policy domain for the Member States. We will investigate, in particular, the ability of the Member States to promote and represent their trade interests in the current legal framework and the concrete restrictions that follow from the relevant provisions on EU law, those regulating CCP objectives and principles, the nature and scope and competences, the exceptions from the CCP and some of the procedural rules.
Balázs Horváthy

Foreign Policy Without Unilateral Alternatives?

EU Member State Interests and the Imposition of Economic Sanctions
The intergovernmental character of cooperation in EU foreign and security policy often gives the impression that the Member States unilaterally pursuing their particular interests is an accepted form of behaviour. This chapter argues, however, that national governments are in fact seriously constrained by the current legal framework governing EU external action, in particular its regime for imposing economic sanctions on third countries or individuals. In this regard, it has serious implications that EU economic sanctions, despite having foreign and security policy objectives, cannot be separated from the principles underpinning the Common Commercial Policy. This link with an exclusive EU competence clearly sets the boundaries of Member State particularism and lays out the potential limits of deviations from EU law. Under this frame, unilateral Member State actions are only accepted if the strict conditions required by EU law are fulfilled. The aim of this chapter is to explore these conditions and the opportunities provided by them for the Member States to promote their national interests in the field of international economic sanctions.
Viktor Szép
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