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2019 | OriginalPaper | Buchkapitel

“United in Diversity”? Differentiated Integration in an Ever Diverse European Union

verfasst von : Luisa Antoniolli

Erschienen in: Highs and Lows of European Integration

Verlag: Springer International Publishing

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Abstract

This contribution analyzes the concept of differentiated integration and its multifarious meanings and applications. After a short historical overview, showing that instances of differentiated integration have existed since the foundation of the European Communities, it focuses on the current phase, which started in the 1990s with the establishment of enhanced cooperation, a general mechanism allowing flexibility in integration among member states. Moreover, it analyzes the areas of the Economic and Monetary Union (EMU), the Schengen Area, and the Area of Freedom, Security and Justice, which are among the most important areas where differentiated integration has taken place. The essay develops a set of elements that allow the classification of all these cases in relation to their centripetal or centrifugal effect, i.e., whether they foster or hamper further integration. Finally, it discusses the recent political endorsement of differentiated integration as a solution for the current multidimensional crisis of the European Union, which may be considered as the recognition of the crucial importance of flexibility and pluralism, but also as an indirect acknowledgement of the inability to move forward together, due to the structural divergences among EU Member States.

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Fußnoten
1
For an overview, see B. de Witte, D. Hanf, E. Vos (eds), The Many Faces of Differentiation in EU Law, Antwerp, Intersentia (2001); A. Kölliker, Flexbility and European Unification: The Logic of Differentiated Integration, Lanham, Rowman & Littlefield (2006); K. Dyson, A. Sepos (eds), Which Europe? The Politics of Differentiated Integration, Basingstoke, Palgrave Macmillan (2010); M. Brunazzo, La differenziazione integrata - L’Unione europea e le sue prospettive future, Milano, Mondadori (2017).
 
2
See J.-C. Piris, The Future of Europe—Towards a Two-Speed EU? Cambridge, Cambridge University Press (2012): “The European Union (EU) is currently and simultaneously facing three huge challenges, which are making the present period the most serious crisis that the EU has ever known” (p. 1).
 
3
If the European Defence Community (whose Treaty was signed in 1952, but failed during the ratification process) had been successfully established, it would have provided yet another brick in the internal differentiated integration pattern of Europe, with major consequences for the whole European integration process.
 
4
The JHA pillar was transformed into a pillar on “Police and Judicial Cooperation in Criminal Matters” by the Treaty of Amsterdam, which communitarized some areas that were previously inserted in the third pillar: immigration, visa, asylum and judicial cooperation on civil matters.
 
5
While there is now only one legal entity, the European Union, it can nevertheless be argued that the common and foreign security policy continues to be run on a completely different institutional setting and balance of power, keeping essentially the same intergovernmental character that was originally established by the Treaty of Maastricht.
 
7
The pillar structure of the EU, as envisaged in the Maastricht Treaty, has been sometimes described by using the image of a Greek temple. This looks very elegant and attractive, but it must be acknowledged that if the EU pillars had been supporting an edifice, it would have surely collapsed: the low and tiny second and third pillars clearly could not match the size and the weight of the tall and wide EC pillar; therefore, the EU roof would have fallen down over them. Metaphors can be dangerous…
 
8
The Community method is based on the triangle Parliament–Council–Commission, defining a characteristic balance among the EU institutions, as well as between EU institutions and Member States, which grants extensive powers to supranational institutions, differently from the traditional intergovernmental method applied in international organizations; this defines the essential content of the rule of law in the EU. For a discussion of the tension between intergovernmentalism and Community method, see G. Majone, Dilemmas of European Integration, The Ambiguities and Pitfalls of Integration by Stealth, Oxford, Oxford University Press (2005).
 
9
One only needs to mention the opt-out of the UK and Denmark from the single currency established by the economic and monetary union (EMU) as part of the Community pillar, and the insertion of the Social Charter in a separate protocol because of the opposition of the UK.
 
10
See G. de Burca, J. Scott (eds), Constitutional Change in the EU: From Uniformity to Flexibility, Oxford, Hart (2000); H. Wallace, Flexibility: A Tool of Integration or a Restraint on Disintegration?, in K. Neunreiter, A. Wiener (eds), Amsterdam and Beyond – Institutional Dynamics and Prospects for Democracy, Oxford, Oxford University Press (2000, pp. 175–191).
 
11
Art. 5a, art. K.1 and title VIa (Provisions on closer cooperation), arts K.15–K.17, Treaty of Amsterdam. See J.A. Usher, Variable Geometry or Concentric Circles: Patterns for the European Union, in 46 Int. Comp. L. Q. (1997, pp. 243–273); J. Shaw, The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy, in 4 Eur. L. J. (1998, pp. 63–86).
 
12
Title V of the TEU, arts 27(a)-(e), 40(a)-(b), arts 43–45 TEU (Title VII); arts 11, 11(a) TEC.
 
13
Arts 42(6), 46 TEU.
 
14
The aims of the reform of the Treaties discussed in the IGC were first to revise the institutional framework, in order to strengthen it in view of the next large wave of enlargement after the collapse of socialist regimes in Eastern Europe; second, to fix the unstable structure of the pillars, by moving a number of important policies from the third to the first pillar. The results were mixed and in their turn unstable, as proved by the little time before the next Treaty revision in Nice.
 
15
Title IV, art. 20 TEU; Part 6, Title III, arts 326–334 TFEU.
 
16
Art. 20(1) TEU, art. 328 TFEU. Enhanced cooperation must be open both when being established, and at any other time, “subject to compliance with the acts already adopted.” Moreover, “The Commission and the Member States participating in enhanced cooperation shall ensure that they promote participation by as many Member States as possible.”
 
17
Art. 329 TFEU. This implies that the EP can veto the decision, but cannot modify the Commission proposal and the Council decision. According to art. 328(2) TFEU, the Commission and the High Representative “shall keep the European Parliament and the Council regularly informed regarding developments in enhanced cooperation.”
 
18
Art. 20(3) TEU, art. 330 TFEU. The procedure for subsequent participation of other Member States is regulated by art. 331 TFEU, which requires notification to the Commission and the Council, in order to verify the fulfillment of the conditions for participation.
 
19
Art. 20(4) TEU.
 
20
Art. 332 TFEU. The Council can change this rule by a unanimous vote.
 
21
Regulation 1259/2010 on the law applicable to divorce and legal separation (“Rome III”), 20/2/2010, OJ L 343, 29/12/2010, p. 10, based on Council Decision 2010/405/EU,12/7/2010 (OJ L 189, 22.7.2010, p. 12). The Regulation came into force in 2012, originally in 14 participating Member States, which will become 17 in 2018.
 
22
Regulation 2016/1103 on jurisdiction, applicable law, recognition, and enforcement of judicial decisions in matters of matrimonial property regimes, 24/6/2016, OJ L 183, 8/7/2016, p. 1, based on Council Decision 2016/954, 9/6/2016, (OJ L 159, 16.6.2016, p. 16). The Regulation also covers the property consequences of registered partnerships.
 
23
Regulation 1257/2012 on the creation of unitary patent protection, 17/12/2012, OJ, L 361, 31/12/2012, p. 1, based on Council Decision 2011/167/EU, 10/3/2011 (OJ L 76, 22.3.2011, p. 53). The regime, which applies in 26 Member States, is complemented by another Regulation stipulating the language regime (Reg. 1260/2012). The regime of the unitary European patent also requires a Unified Patent Court (UPC), but since not all Member States agreed to it, it was enshrined in a separate agreement signed in February 2013 by 25 Member States outside the Treaty framework (OJ EPO 2013, p. 287). The package has not yet entered into force, since this requires at least 13 ratifications of the UPC agreement.
 
24
Reg. 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), 12/10/2017, OJ L 283, 31/10/2017, p. 1. For several years, the strong opposition of various national Governments and Parliaments, which feared losing control over sensitive areas of criminal law, led to the paralysis in the process of approval. A revamp in the procedure came after several governments agreed that, after an initial phase where the competence of the European prosecutor is going to be limited to the field of crimes against the financial interests of the EU, it should be extended to other transnational crimes, in particular those threatening security, such as terrorism. This led finally to the approval of the EPPO through enhanced cooperation, in which 20 Member States currently participate.
 
25
See Commission Proposal for a Directive implementing enhanced cooperation in the area of financial transaction tax, 14/2/2013, COM(2013) 71 final. It is not clear whether this proposal is going to be successful, since opposition to it is strong (some Member States seem to consider that a so-called Tobin tax would distort competition and be incompatible with EU law). At the moment, there seems to be 11 Member States willing to move on.
 
26
Art. 329(2) TFEU. Subsequent participation is regulated by art. 331(2) TFEU.
 
27
Arts 42(6) and 46 TEU. See also Protocol no. 10 on Permanent structured cooperation. It must be remembered that Denmark has a permanent opt-out in defense policy (art. 5, Part II, Protocol 22 on the position of Denmark).
 
28
The proposal of a PESCO of 13/11/2017 (http://​www.​consilium.​europa.​eu/​media/​31511/​171113-pesco-notification.​pdf) was based on the EU Global Strategy, the document published by the High Representative in June 2016, setting out the priorities for the EU foreign and security policy (https://​europa.​eu/​globalstrategy/​en). It was approved by the Council on 11/12/2017 (Council Decision (CFSP) 14866/17).
 
29
See Protocols nos 15 and 16. All other Member States, on the contrary, are legally bound to join the single currency as soon as they fulfill the so-called Maastricht criteria (set out in Protocol 13 on the convergence criteria), which set out reference values for public debt/GDP ratio, public deficit/GDP ratio, and inflation rate. Yet, it is possible for a State to avoid joining the euro simply by avoiding the fulfillment of one or more of the criteria, as shown by the case of Sweden, which remains out because it has not enacted legislation legally guaranteeing the independence of its national central bank.
 
30
It must be remembered that any reform of the Treaties requires a unanimous agreement of all Member States.
 
31
The so-called six pack is a set of secondary legislative instruments (five Regulations and one Directive) enacted in 2011 in order to strengthen macroeconomic surveillance in the EMU (both inside and outside the Eurozone) after the shock of the crisis (Reg. 1173/2011, Reg. 1175/2011, Reg. 1177/2011, Dir. 2011/85/EU, on fiscal policy; Reg. 1176/2011 and Reg. 1174/2011, on macro-economic imbalances). Later, in 2013, the so-called two pack added two Regulations further strengthening budgetary control for Eurozone States (Reg. 473/2013 and Reg. 472/2013).
 
32
The Euro-plus pact is an intergovernmental instrument fostering fiscal and economic discipline within the EMU on the basis of the so-called open method of coordination (OMC), agreed on 25/3/2015 by all the then 17 Eurozone Member States, plus six other EU States (two of which, Latvia and Lithuania, are now part of the Eurozone): http://​www.​consilium.​europa.​eu/​uedocs/​cms_​data/​docs/​pressdata/​en/​ec/​120296.​pdf. It has been mostly considered ineffective because of its soft law characteristics.
 
33
Treaty establishing the European Stability Mechanism, 1/2/2012 (entered into force 27/9/2012): https://​www.​esm.​europa.​eu/​sites/​default/​files/​20150203_​-_​esm_​treaty_​-_​en.​pdf. All States of the Eurozone have signed the Treaty. Meanwhile, in March 2011 art. 136 TFEU was amended, adding a paragraph that authorizes the establishment of a stability mechanism for the Eurozone, granting financial assistance to Member States on the basis of strict conditionality (art. 136(3) TFEU; European Council Decision 2011/199/EU, 25/3/2011, OJ L 91, 6/4/2011, p. 1).
 
34
Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), signed on 2/3/2012 (entered into force on 1/1/2013) among all EU Member States, except UK and Czechia: https://​www.​consilium.​europa.​eu/​media/​20399/​st00tscg26_​en12.​pdf. The EU now intends to incorporate both the ESM and the TSCG inside the EU framework: see Five Presidents’ Report: Completing Europe’s Economic and Monetary Union, 22/6/2015 (https://​ec.​europa.​eu/​commission/​sites/​beta-political/​files/​5-presidents-report_​en.​pdf); European Commission Communication, Further Steps Toward Completing Europe’s Economic and Monetary Union: A Roadmap, COM(2017) 821 final, 6/12/2017. This raises sensitive issues related to the compatibility of these agreements with some fundamental principles of the EU on the institutional balance of power and the protection of fundamental rights.
 
35
The banking union establishes a Single Supervisory Mechanism (SSM) for the Eurozone under the control of the ECB (Reg. 1024/2013, 15/10/2013, OJ L 287, 29/10/2013, p. 63); a Single Resolution Mechanism (SRM) (Reg. 806/2014, 15/7/2014, OJ L 225, 30/7/2014, p. 1); a Single Resolution Fund (SRF), through a complementary intergovernmental agreement signed in 2014 (agreement on the transfer and mutualization of contributions to the Single Resolution Fund, 14/5/2014: http://​register.​consilium.​europa.​eu/​doc/​srv?​l=​EN&​f=​ST%20​8457%20​2014%20​INIT). The completion of this framework also envisages the creation of a single European Deposit Insurance Scheme (EDIS), whose proposal has not yet been adopted, mainly due to opposition by Germany: COM(2015) 586 final, 24/11/2015.
 
36
Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the gradual abolition of checks at their common borders, 14/6/1985 (OJ L 239, 22.9.2000, pp. 13–18).
 
37
Convention implementing the Schengen Agreement of 14 June 1985, 19/6/1990 (OJ L 239, 22.9.2000, pp. 19–62).
 
38
The UK and Ireland are part of a Common Travel Area and opted out of the Schengen acquis when signing the Amsterdam Treaty (Protocol no. 19). Moreover, some EU Member State (Romania, Bulgaria, Cyprus and Croatia) do not yet participate to the Schengen area because they do not fulfill all requirements, but have an obligation to do so as soon as they do. Third countries participating to the Schengen incorporate new acts through ad hoc agreements.
 
39
See Protocol no. 21 for the UK and Ireland and Protocol 22 for Denmark. Both the UK and Ireland can decide to opt-in for acts adopted in this field before or after their adoption. Denmark can decide to opt-in through complementary agreements.
 
40
Arts 82 and 83 TFEU: in the area of criminal law, any Member State can ask for the suspension of the ordinary law-making procedure and the intervention of the European Council, which decides by consensus whether to reopen the procedure. If a political compromise is not reached, this allows willing Member States to immediately start an enhanced cooperation, without any further authorization.
 
41
A.C-G. Stubb, A Categorization of Differentiated Integration, 34 J. Common Market Studies (1996, p. 283). See also Id., The 1996 Intergovernmental Conference and the management of flexible integration, 4 J. Eur. Public Policy, (1997, pp. 37–55).
 
42
See Stubb, A Categorization of Differentiated Integration, cit., pp. 283–295. Stubb was writing at a time where the 1996 intergovernamental conference was negotiating the Amsterdam Treaty and discussing the possibility of introducing a formal mechanism of differentiated integration. See also P. Maillet, D. Velo, L’Europe à géométrie variable – Transition vers l’intégration, Paris, L’Harmattan (1994).
 
43
K. Holzinger, F. Schimmelfennig, Differentiated Integration in the European Union: Many Concepts, Sparse Theory, Few Data, in 19 J. Eur. Public Policy (2012, pp. 292–305). See also D. Leuffen, B. Rittberger, F. Schimmelfennig, Differentiated Integration – Explaining Variation in the European Union, Basingstoke, Palgrave Macmillan (2012).
 
44
Holzinger and Schimmelfennig classify the concept of differentiated (or flexible) integration also from a disciplinary perspective, analyzing the theories developed by political scientists and by economists (but not by lawyers). They consider that “political scientists usually start from the assumption that flexible models allow for further integration that would otherwise be blocked by the lack of political will,” while on the contrary “economists view total harmonization as inefficient. They suggest tailoring the scope of EU rules to the area affected by transnational externalities” (p. 293). See also J. Pisani-Ferry, L’Europe à geométrie variable: une analyse économique, CEPII Working Paper, no. 1995–04, April 1995.
 
45
“The literature on differentiated integration shows a striking imbalance between over-conceptualization, under-theorization and even less systematic data collection”: Holzinger, Schimmelfennig, cit., p. 302.
 
46
Holzinger, Schimmelfennig, cit., pp. 296–297.
 
47
For instance, after a phase of external cooperation, third countries may decide to join the EU, as happened in the case of the European Economic Area (EEA), linking EFTA States with the EC, where Finland, Austria, and Sweden decided after a short time to become EU members. The time dimension is, therefore, relevant in this context. On the external dimension of differentiated integration, see S. Blocmans (ed.), Differentiated Integration in the EU – From the Inside Looking Out, Brussels, CEPS (2014).
 
48
For instance, it is claimed that on the basis of the content of the Fiscal Compact, its results could have been achieved inside the existing Treaty framework, without resorting to a parallel intergovernmental agreement: see, for example, P. Craig, “Financial Crisis, Response, and Europe’s Future,” in Id., The Lisbon Treaty – Law, Politics, and Treaty Reform, Oxford University Press, rev. ed. (2013a, pp. 457–517).
 
49
As for example the possibility for the UK and Denmark to take part in measures concerning the area of freedom, security and justice, or the mechanisms for third countries to update to new Schengen acquis acts.
 
50
Holzinger and Schimmelfennig also propose the development of indicators, in order to be able to test the ability of the model to establish causes, correlations and effects of differentiated integration: cit., p. 302.
 
51
See A. Kölliker, Flexibility and European Unification: The Logic of Differentiated Integration, Lanham, Rowman and Littlefeld (2006); his theory is based on the fact that non-excludable goods allow outsiders to free ride, and rivalry in consumption reduces incentives for outsiders to join; consequently, excludable network goods have the strongest centripetal effects, while common pool resources have the strongest centrifugal effects. See also C. Jensen, J. Slapin, Institutional hokey-pokey: the politics of multispeed integration in the European Union, in 19 J. Eur. Public Policy (2011, pp. 779–795).
 
52
See R. Adler-Nissen, Opting Out of the European Union – Diplomacy, Sovereignty and European Integration, Cambridge, Cambridge University Press (2015).
 
53
See also Holzinger and Schimmelfennig, cit., p. 303: “does it put the EU on a slippery slope toward a permanent core-periphery structure or dissolution, or does it create a fresh impetus for further deepening?”
 
54
For example, one might have considered that the original Schengen agreement had a centrifugal effect, by creating a variable geometry model outside the Treaty. In the end, on the contrary, it has led to increased and centripetal integration in the area of border control within the EU and even outside.
 
55
The Rome Declaration (Declaration of the Leaders of 27 Member States and of the European Council, the European Parliament and the European Commission), 25/3/2017: http://​www.​consilium.​europa.​eu/​en/​press/​press-releases/​2017/​03/​25/​rome-declaration/​pdf
 
56
The same line is taken by the President of the European Council in a document presented to the members of the European Council in October 2017 (Documents by President Tusk for the European Council, 17/10/2017: http://​www.​european-council.​europa.​eu/​en/​press/​press-releases/​2017/​10/​17/​tusk-invitation-letter-euco), where he acknowledges the “dilemma of how to reconcile unity with dynamism,” pleading for the possibility to allow some Member States “moving forward more rapidly in specific areas.” He concludes: “To be clear, unity cannot become an excuse for stagnation, but at the same time ambition cannot lead to divisions.”
 
57
The Rome Declaration, cit., p. 1. “Different paces and intensity” is a rather ambiguous expression, and could both refer to multiple speed or variable geometry. On differentiated integration as a strategy, not merely a mechanism of last resort, see N. Pirozzi, P.D. Tortola, L. Vai, Differentiated Integration: A Way Forward for Europe, IAI, Rome, 16/3/2017; Y. Bertoncini, Differentiated Integration and the EU: A Variable Geometry Legitimacy, IAI, Rome, 10/3/2017.
 
58
European Commission, White Paper on the Future of Europe, 1/3/2017, COM(2017)2025.
 
59
The five scenarios, all defined in vague terms, are: Carrying on; Nothing but the Single market; Those who want to do more; Doing less more efficiently; Doing much more together.
 
60
White Paper on the Future of Europe, cit., pp. 20–21.
 
61
The necessity of differentiated integration is recognized also by the European Parliament, which nevertheless underlines the risks of legal complexity, lack of transparency and democratic deficit: see EP Resolution on constitutional problems of a multitier governance in the European Union (P7_TA(2013)0598), 12/12/2013); see also C. Montero, Looking Ahead: Pathways of Future Constitutional Evolution of the EU, Report for the AFCO Committee of the EP, 2015 (PE 510.005).
 
62
See S. Marciali, La flexibilité du droit de l’Unione européenne, Brussesls, Bruylant (2007).
 
63
There have been important advocates of this flexibility—albeit with a variety of nuances—, starting with the leading position of Jacques Delors: J. Delors, Europe Needs an Avant-Garde, but…, in CEPR Bulletin, 2/10/2000. The “avant-garde” model has been more recently developed by J.-C. Piris, The Future of Europe, cit., who strongly advocates for a “two-speed EU,” where a group of Member States, presumably those of the Eurozone, move on with further—also political—integration, but the differentiation is only temporary, because the other Member States should also join at a later time (see ch. 6). This should not lead to a federal EU: “The purpose of the EU is to help and strengthen the Member States, not to weaken and to abolish them”: p. 145. In Piris’ view the idea of a “temporary avant-garde” model is a second best, since the best solution would be to radically revise the Treaties’ structure, but he considers this option as not viable politically. Others propose permanent differentiation: see S. Fabbrini, Which European Union? – Europe After the Euro Crisis, Cambridge, Cambridge University Press (2015), who proposes a “multiple unions” model, with two groups of Member States: the first (a “compound Union,” composed of the Eurozone States) should be politically integrated, while the second one would only participate in the internal market.
 
64
This is connected to the vexed question of the nature of the EU, a hybrid entity between an international organization and a federal State, which shares features of both, but with many specificities. The inability to define the specific identity of the EU—i.e., of what the EU is, rather than what it is not (or no longer is)—is the root cause of the permanent lack of solid models both for analysis and action.
 
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Metadaten
Titel
“United in Diversity”? Differentiated Integration in an Ever Diverse European Union
verfasst von
Luisa Antoniolli
Copyright-Jahr
2019
Verlag
Springer International Publishing
DOI
https://doi.org/10.1007/978-3-319-93626-0_6