Integration, Differentiation and Flexibility: New Perspectives on EU Law and Policy
Introduction: Overview of the Area of Research
The need for greater European integration on an increasing number of areas of law and policy, conflicts with the wish for greater flexibility and the acknowledgement of diversity in the various policy areas and national laws. Having proposed the slogan ‘United in Diversity’, the EU attempts to recognise the special heterogeneous character of the Union. Since the constitutional recognition of the principles of flexibility and differentiation in the Treaty of Amsterdam, they have become two of the core principles in European law and policy. For example, the right to more intensive cooperation between individual Member States has now been recognised in the EU Treaty. Also, can Member States now can pursue alternative approached to uniform EU law through so-called guarantee clauses and opt-out procedures. In light of this, differentiation and flexibility might also be seen as means to integration. They express the very heterogenic nature of the EU by letting individual Member States use different procedural and institutional instruments in certain policy areas. This could in turn lead to problems, but on the other hand could it also be beneficial for the overall integration process.
Allowing for differentiation and flexibility in this sense might be problematic because it could lead to an even more complex, greater fragmented EU, that is increasingly less transparent and participatory, and all this could in turn contribute to greater distrust in EU policy-making. The Treaty of Lisbon would rather increase these problems than provide solutions to them. An important point of attention should be the EU enlargement process, a policy area in which the Member States can use various institutional instruments such as the Treaty of Pruem. Another great problem is the use of the fundamental principle of subsidiarity and the wish (and obligation) to bring policy-making as close as possible to citizens, on the local, regional and national level.
To allow for more flexibility, on the other hand, could also mean that the integration process can progress more than via the uniform hard approach of EU law alone (e.g. through the process of harmonisation), which the Bologna process has taught us.
Focus: New Perspectives on an Economic, Political and Social EU in the Global Order
This programme explores the issues that the 21st-century EU-27 is facing in the process of increasing integration and its attempts to meet the different wishes and needs of current and future Member States. The programme analyses the conflict between the desire for more cooperation and the need to recognise the heterogenic character of the EU-27. It attempts to look into the various issues connected to the process of integration, in which a second tension, between economic, political and social integration, is being studied in the context of an increasingly interdependent world. The programme will therefore analyse various policy areas, such as the internal market and competition, migration and citizenship, human health and safety, education and culture, and external relations.
An example of the second tension lies between the European emphasis on economic integration and goals within the framework of the ‘Lisbon criteria’, and its more social aims (‘Social Europe’) that emphasise the general interest and citizens’ rights, such as the right to non-discrimination and the protection of their health and the environment. Seen in this light, it becomes apparent why both the call for differentiation between Member States and the desire to give body to European citizenship and identity, are gaining ground simultaneously. This tension also raises questions about the implementation, application and enforcement of EU law, that is how Member States (and the European Court of Justice) deal with EU law. At the same time, it also raises questions as to the scientific arguments underlying EU law, and the division of decision-making powers between the EU and the Member States, the EU and International Organizations and the EU and third states. In the latter area (that of external relations), the principle of flexibility can be seen as both an instrument in phases of pre-accession to the Union and in cooperation with third states to develop specific forms of institutional participation in programs, agencies and policy areas of supranational or intergovernmental nature.
These developments indicate that the desire for greater institutional flexibility stems from substantive flexibility in various policy areas. Research has indicated as well that often a ‘level playing field’ problem emerges when too much differentiation and flexibility is allowed: when legislative provisions are insufficiently harmonised, no fair competition between companies can be realised. The programme aims to investigate this area of tension order to determine how much flexibility should be allowed for. Also, the programme is designed to research the various institutional frameworks for integration and differentiation, and the problems that consequently will arise for the integration progress and the general principles of European law. Examples of such issues are the so-called guarantee clauses and opt-out procedures, the concept of harmonisation, the principles of subsidiarity and proportionality, participation, agencies and committees, as well as the division of decision-making powers between the various EU institutions, national and European institutions, and the flexibility used to facilitate external relations and treaties with third parties. This combination of vertical and horizontal research forms the core of the programme.
Both in practice and in theory, much attention has been paid to the problems arising from integration, differentiation and flexibility. As a matter of fact, several partners of the Ius Commune Research School and to this programme have already cooperated in this field (e.g. B. De Witte, D. Hanf en E. Vos 2001). As such, the topic of the programme is therefore not new. Nevertheless, its horizontal and vertical approach promotes a unique contribution to the current debate on the European integration process and the related emerging challenges for the EU in the 21st century. Furthermore, recent developments in these areas indicate that it could serve as an example for other regional integration processes, particularly in terms of the tension between greater integration and respect for the heterogeneous nature of the EU-27.
For these reasons, the programme aims to analyse the various policy areas, in particular those that determine the economic character and the ‘social face’ of the EU. The programme will therefore deal with the following research topics: i) study of the level of integration up to now in various policy areas and their institutional embodiment, plus whether or not problems have arisen from this, ii) examination whether and to what extent differentiation and/or flexibility are necessary in various policy areas, or whether a higher level of integration and harmonisation are necessary, and finally iii) analysis of the tension between economic integration, and social and political goals.