Revisiting Flexible Integration in Times of Post-enlargement and
Lustration of EU Constitutionalism
(Please note: draft version only)*
Matej Avbelj**
The main interest of this paper lies with the following question. What to make of flexible
integration in the EU after the big bang enlargement and the failure of its documentary
constitutionalization? Our purpose, in contrast with a bulk of the literature in this field, is not
so much to describe or conduct textual analysis of flexibility clauses from one Treaty to
another, rather it is foremost to understand what have been those deeper or background
reasons for which the flexibility in the EU has developed as it has. Our discussion will be,
roughly, broken down into three thematic parts. In the first, genealogical, part we will trace
the historical development of flexible integration. This will be followed by a study of reasons
for which flexibility has remained only at the margins of integration process. Finally, having
examined the EU’s non-flexible past and the reasons for it, we will turn to its present and
future. With an eye on the changes of immense, if not even radical, proportions that European
integration has undergone in the past five years, are there any grounds that merit revisiting the
process of flexible integration and using some of its potentials for the integration’s benefit in
the future?
Three Orders of Flexibility
What is a flexible integration? This is a preliminary, definitional question that must be
answered before embarking on a more detailed examination of its historical evolution in the
context of European integration. Following a definition crafted by de la Serre and Wallace,
we suggest to understand flexibility as a means of organizing diversity between the
constituent entities in European integration.1 Flexibility should be therefore best imagined as a
continuum of different instances in which not all Member States are subject to uniform rules
*
Footnotes especially incomplete.
PhD Researcher, European University Institute, Florence, Italy. Contact: [email protected]
1
F. de la Serre and Hellene Wallace, Flexibility and Enhanced Cooperation in the European Union: Placebo
rather than Panacea, 'Notre Europe' Research and Policy Paper no. 2, September 1997.
**
1
even within the scope of EU competences. These instances can be of different intensity
subject to the scope and depth of exceptions established in favor of one or more Member
States. Progressing from the least to the most flexible solutions, one could distinguish
between three different orders of flexibility.
A first order flexibility takes place on the level of secondary EU law, yet within a uniform
primary EU law framework. It encompasses legal acts of different intensity (regulations,
directives, soft-law), legal techniques of minimum harmonization, mutual recognition,
interpretative solutions, derogation clauses in the EU secondary law acts and others, whose
common denominator is an ambition of alleviating the EU uniform regulatory grip by
allowing the Member States to achieve the chosen objectives in a way that best fits their
respective social, economic and political environments. A second order flexibility, which is
already more intense, includes derogations on the level of primary EU law. These comprise
the so called safeguard clauses, notorious instances of various opt-outs and other, usually,
protocol-based derogations in favor of a selected Member State. Finally, creation of a separate
legal and regulatory regime for more Member States, albeit within the institutional framework
of integration, represents the strongest case of flexibility – a third order flexibility. This has
also been known as differentiated integration. The legal basis for the latter is now provided in
the EU founding Treaties under the title of the so called enhanced cooperation.
Genealogy of Flexible Integration
The described instances of flexible integration have emerged incrementally and at different
points of time in the history of European integration. While the conventional wisdom locates
the origins of flexibility in the early 1970s, this is only partly correct as they in fact date back
to the very roots of integration. Some of them were namely present already in the Treaty of
Rome. Beside the distinction between different legislative acts (first order flexibility), this
Treaty also contained a number of safeguard clauses and at least six of the ten protocols
annexed to it dealt with derogations.2 While the latter provided for the exceptions on the level
of primary law, they should not be equated with strong instances of flexibility, such as optouts of a later date, as they were limited to some very specific national trade-based
2
Dominik Hanf, Flexibility Clauses in the Founding Treaties, from Rome to Nice, in DE WITTE, HANF, VOS
eds., THE MANY FACES OF DIFFERENTIATION IN EU LAW, (Intersentia, 2001), at 7.
2
peculiarities.3 At the outset of integration, flexibility thus occupied a rather narrow scope and
did not play a major role. This is but understandable as a priority was rather given to the
means contributing to further integration and hence to increased uniformity. In the context of
a relative homogeneity of the six founding Member States and rather narrow original scope of
the Community competences this, moreover, still appeared both feasible as well as desirable.
However, it did not take long for this situation to begin to change. With the first wave of
enlargement in the beginning of the 1970s the old homogeneous Community came to an end.
With three new Member States a number of divergent political and economic interests
augmented which complicated the then, by and large, still unanimous decision-making in the
Union and made political stalemates part of its daily reality. It was in 1974, during one of the
particularly fierce standoffs caused by the British staunch opposition to harmonization of
banking legislation and company law,4 that the first open political call for differentiated
integration as the strongest means of flexibility was launched by the German Chancellor
Willy Brandt. He introduced the idea of a multi-speed Europe following which the Union
would be divided between two groups of more and less advanced Member States, so that the
former could achieve their common objectives quicker and better while the latter would
follow later when being ready or willing to do so.5 The proposal was only a year later, in
1975, seconded by the Belgian Prime Minister Leo Tindemans and elevated to the level of the
European Council. In his Report, while admittedly taking a very cautious and hence rather
conservative stand on differentiated integration, he pointed to the growing social and
economic differences between the Member States and warned that their simple disregard and
consequent insistence on synchronized pace of integration could put the overall process of
integration at peril.6
However, both of these appeals for differentiated integration hit at the deaf ears of the
Member States as well as of the EU institutions and were consequently, as indeed the entire
idea of flexible integration, for a couple years set aside only to resurge even strongly in the
1980s. This decade saw two landmark events. One had to do with the enlargement of the EU
3
Id. These, for example, included Protocol on German Internal Trade which absolved the then Western Germany
from instituting the EU required customs regime with Eastern Germany; Banana Protocol, Protocol on
Luxembourg, etc, at 8.
4
Ehlerman (1998), Collino (2004)
5
Neil Walker, Sovereignty and Differentiated Integration in the European Union, ELJ Vol. 4, No. 4, 1998, at
364; Sandra Marco Collino, Towards Greater Flexibility or Deadlock, The Federal Trust Online Paper 24/04,
footnote 8, referring to Nomden (1998)
6
Collino, supra note 5, at 4.
3
for further three Member States,7 whereas the other, which was certainly not unrelated to the
first one, was the adoption of a Single European Act (hereinafter, the SEA) amending the
Founding Treaties.8 The latter introduced a couple of major institutional reforms, which, inter
alia, contained some clear moves towards flexible integration. Among the latter especially the
provisions of Article 100a(4) and 130t TEC9 should be pointed out. Departing from the
established case law of the ECJ, they allowed the Member States, subject to the prescribed
conditions, to adopt or retain different regulatory standards even when a given field was
already harmonized.10 Furthermore, a number of more ‘flexible’ legislative techniques, which
we have designated above as a first order flexibility, were laid down in the text of the
Treaty.11
In the 1980s the genie of flexibility thus escaped the bottle and while it claimed some
consequences already in the SEA, the latter in fact only paved a way to the Treaty of
Maastricht (hereinafter ToM) where flexibility was recognized to a degree unseen before.
ToM, first of all, presented a break with the pre-existing supranationally driven Community
method by creating an (in)famous pillar structure. The latter has caused a fragmentation both
of the Union’s institutional structure as well as of its policy-making, and while it introduced
what has been designated as a structural differentiation, this did not discriminate between the
Member States and it is therefore flexibility in a sense which is different from that used in this
paper. However, the latter was not missing in ToM. To the contrary, preserving the
established first order flexibility, ToM introduced new instances of a second order flexibility12
and, moreover, took the integration at the very brink of a third order flexibility. Indeed, with
the creation of EMU in which not all Member States have participated, either out of objective
or subjective reasons, with the British opt out from the Protocol on Social Policy and, finally,
with the preceding conclusion of the Schengen Agreement only by some Member States even
outside the Community framework, the shapes of different regulatory regimes in larger policy
fields with necessarily adjusted institutional solutions were drawn foretelling the advent of a
full-blown differentiated integration.
7
Greece joined the Union in 1981, whereas Spain and Portugal followed five years later.
SEA was adopted in 1987.
9
Now 95 TEC
10
Hanf, supra note 2, at 10.
11
Id. at 10-11.
12
Id. at 16-18, The most notorious were the protocol on the acquisition of second homes in Denmark and the
Irish abortion protocol.
8
4
This possibility again stirred political imagination of European stake-holders who soon
produced an avalanche of political visions of possible models of a third order flexibility. It all
began with a Lamers-Schäuble initiative which called for European integration based on
variable geometry where the EU Member States would be divided between those forming the
core, an avant-garde of integration, which could be, presumably, even closed to those which
would be delegated to the periphery.13 This provoked an immediate reaction from the Head of
the French government who promoted integration in the form of three concentric circles
which would be, in contrast with the German model, less rigid and more policy-sector rather
than state based.14 These two proposals, while endorsing differentiation, concurrently insisted
on the need of preserving a common architectural whole of European integration.15 The latter
was, however, absent from the British proposal of integration a la carte, defended by the then
Prime Minister John Major, who advocated a very small scope of shared European policies
beyond which the Member States could freely choose to participate in those policy sectors
which they would find opportune.16
All this political ado exercised in the lead-up to the Amsterdam IGC, as it has been submitted,
had little direct effect on the national delegations until the joined Franco-German intervention
which put forward an official proposal for incorporating a general clause opening a possibility
of differentiated integration in some policy fields.17 The proposal was, indeed, met with
approval and the Treaty of Amsterdam (ToA), while scrapping the British opt-out from the
social protocol and preserving the EMU and Schengen opt-outs,18 under the title of closer cooperation furnished a legal basis enabling a certain number of Member States, which so can
and desire, to integrate in chosen policy fields further and quicker than the others.19 What had
been politically mooted, but crushed at its birth, in the early 1970s, it became a tangible
Treaty based option 20 years later. This has led some to announce that ToA made
13
Lamers, Schauble, Reflections on European Foreign Policy, Document of the CDU/CSU in the German
Bundestag (1994). Academics differ as to whether their proposal was an example of variable geometry: Claus
Dieter Ehlermann, Differentiation, Flexibility, Closer Co-operation – The New Provisions of the Amsterdam
Treaty, ELJ, Vol. 4, No.3, 1998; or concentric circles (Walker 1998).
14
Balladur proposal, Walker (1998), Ehlermann (1998), Gillespie, The Promise and Practice of Flexibility, in
Tonra ed., AMSTERDAM, WHAT THE TREATY MEANS (Dublin 1997).
15
Ehlermann, 1998
16
Federal Trust Report, Flexibility and the Future of the European Union,
17
Ehlermann, 1998, at 250.
18
With ToA Schengen was integrated within the Treaty framework and has been made part of the Acquis. Being
introduced (partly) in the first pillar title IV …which provided for a judicial review by the ECJ in the form of
preliminary rulings subject to the Member State's prior agreement to that. ToA thus, effectively, introduced also
judicial flexibility. Hanf, at 19.
19
Core states, ready and willing to go further; less advanced Member States and the accession countries
5
differentiated integration intrinsic part of Europe’s constitutional structure.20 The fact that the
Treaty of Nice, whose negotiation was again conducted amid the appeals for more flexibility
coming from the top national officials and other wisemen,21 as well as the failed
Constitutional Treaty preserved the legal basis for enhanced co-operation and even eased the
conditions for the launch of the process and enlarged the scope of policy fields in which the
latter is possible,22 indeed lent some plausibility to this otherwise rather counterintuitive
position.23
Finally, the Treaty of Lisbon, as the latest product of the semi-permanent process of Treaty
revision,24 remains rather ambivalent as far as recognition of flexibility is considered. On one
hand, it presents a significant departure from it. It merges the pillar structure and two heads of
Community and Union into a single legal and institutional framework of the European Union
putting its structural differentiation to an end. On the other hand, it does not just keep the
existing examples of a second order flexibility, but it multiplies them by allowing opt-outs
from such policy fields where an exception to one-size-fits-all solutions would be hardly
imaginable. The most conspicuous example of that kind are certainly the British and Polish
opt-outs from the Charter of Fundamental Rights, i.e. from a long awaited document which
contains EU human rights that have been traditionally represented as universal, being
common to all the Member States and stemming from their shared constitutional traditions.25
This and indeed the overall number of derogations claimed by the UK on the level of primary
EU law has already led some to wonder whether a critical mass of opt-outs has perhaps
already been reached if not even surpassed.26 As far as, eventually, a third order flexibility is
considered, the Treaty of Lisbon has basically kept the regime established by the Treaty of
Nice untouched.
20
Footnote 88 in Hanf
Dehaene report prepared upon a request by Romano Prodi, the then President of European Commission;
Joschka Fischer speech, Chirac's reply etc…
22
Pursuant to ToA the proposal to launch closer co-operation had to be made by the majority of Member States.
Moreover, closer co-operation was excluded from the 2nd pillar (common foreign and security policy), where a
mechanism of positive abstention was used instead.
23
Counterintuitive because constitutionalism and differentiation rather seem to be pursuing mutually-exclusive
objectives.
24
Bruno de Witte, The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty
Revision Process, in Beaumont, Lyons, Walker, Convergence and Divergence in European Public Law, Hart
2002.
25
ECJ case law on HR, see more in For an overview see, Matej Avbelj, European Court of Justice and the
Question of Value Choices: Fundamental Human Rights as an Exception to the Freedom of Movements of
Goods, Jean Monnet Working Paper No.06/04, http://www.jeanmonnetprogram.org/papers/04/040601.html.
26
Report in EuObserver »EU Treaty Negotiations Proceed Slowly«, 19.9.2007
21
6
Four Defining Features of Flexible Integration
Having conducted a genealogical analysis of the process of flexible integration, what we are
interested in next is whether on the basis of its evolution in the last five decades we can single
out some elements which define it and can be treated as constitutive of it. What are the
common features of flexibility process? Has it been a coherent enterprise or could it be only
regarded, as it has been powerfully argued, as a non-project with an obvious lack of coherence
that has mainly been driven by contingency, ambiguity and disagreement?27 In our view, the
process of flexible integration can be coherently structured around four defining features.
First, the process has been underlined by a very explicit telos that has acted as its unifying
force and has brought all those different practical instances of flexibility within a single
objective of finding the most appropriate means for managing diversity in European
integration. Secondly, the origins of flexibility process can be equally accounted for in a
coherent manner. There can be identified three main, the so called, triggers of flexibility,
which have in practice operated both separately as well as jointly. The first of them are
different schemes of justice to which the Member States adhere and which are expressed, as
Scharpf has argued, in those basic differences in national economic conditions, institutions,
policy legacies and normative preferences.28 Flexible integration is ancillary to these
differences and hence in their function which means that the bigger they are the greater the
need for flexibility. The historical trajectory of different orders of flexibility is the best
evidence of that. In the past every single enlargement contributed to a growing heterogeneity
of integration and then, sooner or later, spurred the appeals for flexibility which, as we have
seen, usually resulted in some clear practical consequences both on the level of secondary as
well as primary EU law.
The second trigger of flexibility is a depth of integration. As we had a chance to observe,
following ToM which significantly enlarged the scope of EU competences by supplementing
what was a predominantly economic dimension of the Community with a number of other
policies,29 the pressure for stronger, second and even third order flexibility mounted.30 The
27
Walker (1998) at 374. Collino (2004) has similarly observed that especially in the period preceding
Amsterdam the 'sightings' of flexibility did not follow any coherent line, at 5.
28
Cite Scharpf, Problem Solving Effectiveness and Democratic Accountability in the EU,
29
These ranged from social policies within the Community pillar to foreign, security, justice and home affairs
policies in the two intergovernmental pillars.
7
last trigger is a qualified majority voting. A shift from unanimity requirement to a qualified
majority in the process of decision-making in the EU institutions increases the likelihood of
demands for a second order flexibility. A Member State, which fears that it could be outvoted
on certain policy issues, which for various reason figure large in domestic political affairs,
moves to securing an appropriate derogation or opt-out to prevent such political surprises in
advance.
Thirdly, the flexibility process can be also, if though perhaps counter-intuitively, seen as
coherent due to its glaringly incoherent result. Especially in the last three decades we could
detect a huge discrepancy between political enthusiasm and ambitions to introduce more
flexibility in integration, on the one hand, and very modest practical outcomes on the other
hand. This is in particular true of a third order flexibility, which has rather intensively
occupied even the highest political figures in Europe and transformed them in political
visionaries, yet ultimately with little practical effect.
While the first and second order
flexibility have been received with fairly little difficulties and have appeared more and more
frequently in the EU founding Treaties and other legislative instruments, a third order
flexibility has had a rather different fate. Since its explicit formal written recognition in ToA
it has remained a dead letter. In their decade long existence the provisions on enhanced cooperation have never been applied and, moreover, except in two cases their use has not even
been seriously considered.31
Inquiring in the reasons for this kind of situation, which is what we are going to do next,
brings us to the fourth, this time exogenous, coherence-enhancing factor of flexibility process.
The latter has taken place in the intellectual and political environment which has been openly
and more than consistently hostile to the idea of flexibility as such, but especially to its
strongest version, i.e. differentiated integration.32
None of the narratives of European
30
With the help of the notion of »substantive equilibrium« I have explained elsewhere, in some great detail, the
effects of non-moderate process of integration.
31
The literature quotes two attempted uses of enhanced co-operation. The first, allegedly, happened in 1999
around the time of the Cologne European Council where the proposed adoption of European Company Statute
met the opposition from Spain; whereas the second was mooted in 2001 after the Italian initial reluctance to
agree on the framework decision instituting the European Arrest Warrant. See J.M. de Areilza in the Many Faces
of Differentiation, at 33 and Daniel Thym, “United in Diversity” – The Integration of Enhanced Co-operation
into the European Constitutional Order, GLJ, Vol. 6, No. 11, at 1737.
32
Jo Shaw speaks of an overall orthodoxy of hostility to flexibility, see Jo Shaw, Relating Constitutionalism and
Flexibility in the European Union, at?, in de Burca, Scott eds., CONSTITUTIONAL CHANGE IN THE EU,
FROM UNIFORMITY TO FLEXIBILITY (Hart 2000).
8
integration, with a single exception of international law narrative,33 could come to terms with
or digest flexible integration. This is especially true of those two narratives that have
dominated the socio-legal construction of European integration. From the supranational neofunctionalist perspective, whose dominant position was intact till the late 1980s, differentiated
integration would entail an interruption of virtuous spillover effects from one policy sector
into another which would amount to, nothing more and nothing less, than a failure of
integration34 and would, potentially, even signal a return to the old international voluntaristic
state-based paradigm.
However, from the vantage point of the classical constitutional vision,35 which has replaced
the supranational narrative as a dominant narrative, differentiated integration does not only
represent a breakdown of integration. It is its outright contradictio in adiecto for it collides
with its very telos. European integration, with its formal and double-layered substantive, yet
unwritten, constitution, which makes it literally indistinguishable from constitutional federal
states,36 is pursuant to the classical constitutional vision defined by an imperative of an ever
closer union between the peoples of Europe which means that it should proceed just one
way.37 As a result, harmonization, if not even unification, should be its main paradigm. All
differences and diversity existing in integration are accordingly, more or less, perceived as
obstacles, first to free trade, but ultimately to integration as such.38 Incrementally but steadily
they should give way to a supreme Community law requiring uncompromised uniformity of
its application across all the Member States.
Introducing more flexibility in integration or even allowing its constituent entities to integrate
at different speeds in different fields of integration would openly defy the very purpose of the
entire constitutional enterprise. The latter has been launched precisely with the opposite
33
See Angelo Sepos, Differentiated integration in the EU: The Position of Small Member States, EUI Working
Paper RSCAS No. 2005/17, who correctly notes that from a liberal intergovernmental perspective, which is a
special version of international law narrative, differentiation is easy to explain by the Member States' craving for
power and consequent enhancement of their positions.
34
Id.
35
For a more in depth discussion of classical constitutionalism in the EU and the evolution of EU
constitutionalisms in general, see Matej Avbelj, Questioning EU Constitutionalisms, GLJ, Vol. 9, No. 1. (2008).
36
J.H.H. Weiler, Federalism without Constitutionalism: Europe's Sonderweg, in NICOLAIDIS (ed.), THE
FEDERAL VISION, LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND
THE EUROPEAN UNION, (OUP 2001), at 56.
37
See Deirdre Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, CMLRev 30,
1993, at 67.
38
More in Avbelj (2008).
9
objectives: namely to further the integration, not to loosen it.
39
On the basis of statist
constitutional federal experiences, to which the classical EU constitutionalism is most
indebted and where it in fact originates from,40 it has namely been presumed that as
constitution confers unity and order in the statist environment the same virtuous effects should
come about in the supranational environment as well. For many years the process of European
integration has been consequently conducted in a spirit of furthering unity and uniformity and
constitutionalism has been selected as the most appropriate tool for that. The integration has
fallen prey to the so called unity dogma with a natural tendency and strong presumption
towards uniformity.41 This explains why flexibility has been figuring only at its margins and
why realistically speaking no organized form of differentiated integration could come into
being. Even in those few instances where the latter’s use was at least ostensibly seriously
contemplated on, it was portrayed either as measure of a last resort;42 or it was seized as a
means of exerting pressure in the negotiations against the more reluctant Member State under
a threat of exclusion or second-class membership. It has been very rarely, if at all, seen as an
opportunity for European integration.43
Europe of Today: Post-enlargement and Lustration of Constitutionalism
With an insight in a historical development, causes and internal dynamics of flexible
integration we are now well equipped to address the central question of this paper. What to
make of flexible integration in the EU of today? Is all that has been said above still fully valid
for European integration as it presently stands, which means that flexibility, especially that of
a third order, remains largely a non-issue, or have there been some changes which merit reopening the flexibility debate and contemplating anew on its practical potentials? As it is well
known, European integration has in the last five years indeed witnessed two major political
events which have fundamentally impacted on its overall political, economic as well as legal
nature. The first to be mentioned is the enlargement of its membership from previously 15 to
39
M. P. Maduro, 'How Constitutional Can the European Union Be? The Tension Between
Intergovernamentalism and Constitutionalism in the European Union', in Weiler and Eisgruber, eds., Altneuland:
The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04,
http://www.jeanmonnetprogram.org/papers/04/040501-18.html, visited 13 August 2007, at 6.
40
Matej Avbelj, Pitfalls of (Comparative) Constitutional Law for the European Integration, on file with the
author, forthcoming.
41
Ehlermann, 1288 (1983-84)
42
43
For a more optimistic view, see Filip Tuytschaever, The Changing Conception of Differentiation in European
Law, EUI Phd Thesis.
10
27 Member States. The second, which followed the first and has certainly not been unrelated
to it, is the rise and fall of documentary constitutionalism resulting in a strong blow to the
dominant constitutional perspective of integration which has been literally forced to the very
brink of lustration.
If our analysis of the flexibility process conducted above is correct, the just described changes
in European integration affect two out of its four defining elements. The first cuts through the
triggers of flexibility and concerns more concretely the heterogeneity between the constituent
entities of integration. Heterogeneity has been increased by every single enlargement. This is
a rule that has so far known no exception and the latest big bang enlargement does not offer
us any reason for concluding the opposite. Quite the opposite, if any then it is this
enlargement that must be recognized as the biggest and simultaneously the most diversity
augmenting in the entire history of EU. Its vastness is not that much due to the quantity, even
though the number of Member States almost doubled, as it is due to the quality. European
integration with the enlargement to the East definitely tore down the iron curtain and by doing
so it integrated the-post communist states, which historically, provided there is such a thing,
admittedly had belonged to a common European cultural space, but were subsequently
excluded from it for half of a century.
This has inevitably left strong consequences on them and made them objectively different
from the Western European countries, to use still a very much vital cold-war terminological
cliché. These differences are those which can be measured in economic terms, whereby the
Eastern block is much poorer and less economically developed, and those which can not be
because they pertain to the systemic characteristics of the society at large. The latter, if though
much less visible and harder identifiable, are equally if not even more important. They
concern the quality of democracy, presence or absence of legal and political culture and
ultimately boil down to the most elementary, but in practice the most resilient and enduring,
differences in the people’s mentality.
To cut a long story short, European integration before and after 2004 is simply not the same
thing. It is now truly pervaded by far reaching social, economical, legal, political, cultural,
linguistic, religious and other forms of diversity. This new unprecedented scope of diversity
inevitably must get some expression in the daily legal and political life of integration, given
that law and politics depend on the social substratum that they regulate and from which they
11
grow. If in the widest social sense European integration has undergone a transformation from
relatively socially homogeneous six original Member States to objectively socially
heterogeneous 27 Member States, then the EU can not anymore plausibly follow the same
linear path of integration, which knows only one direction and operates on the basis of a
principle that ultimately, this or another way, one size must fit all. In short, the EU reality post
the big bang enlargement therefore certainly speaks in favor of a more flexible type of
integration.
Interestingly, we shall come to the same conclusion taking into account the recent EU’s
constitutional travail. When it already seemed that with Maastricht’s creation of the pillar
structure, which was said to have blown the integration into bits and pieces,44 the classical
constitutional vision and its unity dogma suffered a decisive, if not yet a definite, defeat, we
have instead witnessed its full revival. In accordance with the desires of the EU
constitutionalists expressed long ago in the early 1990s, the EU after the Treaty of Nice really
embarked on a fully-fledged documentary constitutionalization. The classical constitutional
vision appeared to be revindicated and once and for all written down in the genetic code of
European integration. However, for many unexpectedly, for others not, the result was rather
the opposite. The CT was refused in two founding Member States in the popular referenda,
i.e. by the people who should have embraced it with open hands as it was tailored just for
them. In a sobering constitutional limbo that followed new solutions were desperately sought
and after a two year period of intense reflection (Germans put it best when they called it, and
for a reason, a Denkpause) a new Reform Treaty, later baptized as the Treaty of Lisbon, was
agreed.
However, the latter presented a literal salto mortale. In a manner close to lustration of EU
constitutionalism the European stakeholders uprooted from the text of Constitutional Treaty,
that they had only a while ago still so vigorously defended as the Constitution, everything that
might be in any way reminiscent of the C-word, going even so far as deleting the provisions
on the EU’s values and symbols.45 Hence, it took only a couple of years for the EU
constitutional narrative to travel from the long aspired European constitutional skies to the
44
Deirdre Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, CMLRev 30, 1993, at
46.
45
While adding in the same voice, which is at least for us utterly paradoxical, that they will nevertheless
continue to fly and sound around Europe.
12
deepest abbeys of the EU’s constitutional self-denial. Doubtlessly, this journey has seriously
discredited the constitutional basis of the unity dogma and the ensuing faith in the
indispensability of an ever closer Union. But in so doing, the biggest hurdle standing in the
way of a more flexible integration might be thus removed or it is at least in the process of
removal.
Pros and Cons of Flexible Integration
With a demise of a stifling unity dogma underlying the classical constitutional vision of
integration and with a concurrent, even unprecedented, increase of heterogeneity, the present
state of European integration, in theory at least, provides a fertile soil for a potential new
launch of flexibility process, also in the form of differentiated integration which interests us
here. The time therefore seems to be ripe, but is it in fact opportune or even necessary to
introduce the strongest version of flexibility in integration? What are the possible advantages,
but also disadvantages that a third order flexibility could have for European integration as a
whole?
Among the arguments that speak in favor of differentiated integration objective existence of a
growing diversity between its constituent entities should be mentioned first. Differentiated
integration as a diversity managing mechanism takes full account of this diversity, of its
positive and negative sides, and tries to find solutions which would preserve it as much as
possible, while making sure it does not transform itself in a stumbling block of integration. In
that way, an open decision for differentiated integration is much preferable to those strategies,
typical of classical constitutional vision, which tend to disregard the diversity either by
downplaying its true range or by simply railroading it through the EU wide uniform solutions.
First of all, by recognizing diversity differentiated integration could contribute to a greater
legitimacy of the entire process of integration. In so doing, as one commentator has noted, it
could also increase a democratic potential of European integration by showing a respect for
national democratic majorities, without allowing this majority, as a European minority, to
block the realization of the European majority preferences.46 At the same time, such a model
of integration could be much more efficient. Presently a de facto consensual system has
46
Daniel Thym, "United in Diversity" – The Integration of Enhanced Cooperation into the European
Constitutional Order, at 1735.
13
entangled the integration into the so called politics of incrementalism.47 The latter is
characterized by practice of postponing the most sensitive and burning issues of integration
hoping that once in the future new energy and motives will be found to tackle what could not
be achieved at present. While this patient, progressive, consensual synchronized integration
certainly has its advantages, after all it has made the integration possible in the first place and
brought it to this, especially in comparative terms, enviable stage, it also has its strong
downsides. Consensus, even if only de facto, is a mode of decision-making which favours the
status quo at the expense of change and progress Due to its all-or-nothing effect (either all
agree, or there is no decision), it enables every single participant to block the game for
whatsoever marginal reasons. As a result, the EU has ended up with a stagnant legal, political
and economic agenda. Already a brief look at its development in the last two decades reveals
almost shockingly that the EU debate has had a cyclical character48 with a clear lack of a
significant progress. Hence, in the economic terms the flagship of EU integration, i.e. the
common market, is still not achieved; and all the attempts to provide the EU with new
impetus through the successive intergovernmental conferences resulted only in remedying the
decades-old leftovers of the past.49
The EU has been thus paying a huge and increasing price in terms of efficiency, but other
injurious side effects have not been absent either. One of them concerns transparency. Even
those who are very much in favour of the present model of integration are ready to concede
that it has led to an opaque system which is barely legible.50 The second, and perhaps even
more important, raises the issue of an overall stability of integration. When differences
between the Member States are so big that simply no solution which would satisfy everyone
could be found, insisting on one might lead some of them to have recourse to the formal
mechanisms outside a Treaty framework51 or even to informal, more or less, secret dealings
behind the scenes.52 This could lead to the erosion of the EU’s activities, to its incremental
47
See more in Matej Avbelj, European Constitution-Building Through a Basic Law and Differentiation in
Neuwahl, Haack eds. Unresolved Issues of the Constitution for Europe (Les Editions Themis 2007).
48 W. Wallace and H. Wallace, Flying together in a larger and more diverse European Union. Working
document of the Scientific Council for Government Policy, (The Hague, 1995), at p. 23.
49
W. Weidenfeld and J. Janning, "Strategy Paper for the International Bertelsmann Forum", in The New
Europe – Strategies for Differentiated Integration (Bertelsmann Foundation Publishers, Gütersloh 1997).
50
R. Dehousse, "The Unmaking of the Constitution: Lessons from the European Referenda”, 13 Constellations
(2006), pp. 152-164.
51
Prum convention the most recent example,
52
Refer to Shaw and article from EUobserver.
14
disintegration from the outside53 and would simultaneously have detrimental effects for its
democratic pedigree. Conducting differentiated integration in an organized, transparent way
within a Treaty framework subject to a judicial and parliamentary supervision following the
rules which are laid down in advance and agreed by all appears much more credible and
appealing.54 Moreover, in that way differentiated integration could be used, in the opinion of
many, as a vehicle of change guaranteeing that evolutionary dynamics that European
integration is in a desperate need of.55
However, while the arguments in favour of differentiated integration are not so few, the
counterarguments have not been lacking either. They can be divided into two groups. The
first is concerned with negative normative implications that differentiated integration could
have for European integration. Above all its coherence could be at stake. The argument goes
that even now the relationship between the EU and national legal orders is not fully settled,
whereas creating a third or any further level as a result of differentiated integration would
make coherence only more remote an ideal. The presently solidifying, hard-won supranational
structure would come under additional strain of fragmentation which could make it less and
less intelligible and thus only hardly comprehensible to its subjects. This lack of transparency
would necessarily detrimentally affect the already frail legitimacy of integration. 56 But, what
is worse, differentiated integration would mean a terrible blow for the bonds of solidarity and
political community in whose absence the existence of European integration is said to be hard
to imagine.57
The second group of arguments against differentiated integration emphasizes its inoperative
practical side and it is not necessarily related to the first one. While many would oppose
differentiated integration on normative grounds and simultaneously aver its practical
impossibility, others would find it agreeable and perhaps even necessary, but would be
dissuaded from it due to an apparent lack of attainable workable means for its practical
53
J. Shaw, "The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy", 4 European Law Journal
(1998), pp. 63-86.
54
Filip Tuytschaever, EMU and the Catch-22 of EU Constitution-making, in De Burca, Scott, Constitutional
Change in the EU, Walker.
55
Id. at 195.
56
See, for example, Stephen Weatherill, 'If I'd Wanted You to Understand I Would have Explained it Better':
What is the Purpose of the Provisions on Closer Co-operation Introduced by the Treaty of Amsterdam?,
O'Keeffe, Twomey, Legal Issues of the Amsterdam Treaty, Oxford 1999, Hart Publishing, at 37.
57
J.H.H. Weiler, Amsterdam, Amsterdam, Editorial, 3 ELJ 1997, 309-312, Robert Harmsen, A European Union
of Variable Geometry: Problems and Persepctives, 45 N. Ir. Legal Q. 109 1994, at 129-130.
15
implementation. Indeed, the question whether differentiated integration can be ever put in
practice is a decisive one and it should interest us most. No matter what arguments we can
produce against or in favour of differentiated integration, and even if the latter are more
numerous and stronger as the former as we believe to be the case, the entire intellectual
endeavour is ultimately in vain if we can not come up with evidence showing its viability in
practice.
And up till now this has not been the case. Despite numerous attempts we still have not been
offered a reliable institutional solution. Hard intellectual work has been invested in looking
for the means of striking the right balance between flexibility and coherence to avoid the
extremes of fragmentation or uniformity.58 There has been a constant search for the core,
which should remain intact, periphery that could vary and the appropriate line dividing the
two. The suggested criteria for division varied and have ranged from the core being formed
either by the Member States, policy sectors, or by substantive commitments, principles and
value-foundations of integration.59 None of them proved to be satisfactory for everyone.
Moreover, concrete institutional solutions, like a system of institutional representation,
systemic relationships between constituent entities, role of the court and distribution of
financial benefits and burdens within a multi-dimensional European integration have been
hard to conceive of.60
Objective Prospects for Differentiated Integration
But what has been a reason for that? At the beginning we put all the blame on the dominant
classical constitutional vision. However, while the latter has been watered down, the practical
inoperativeness of differentiated integration has remained. This indicates that there must be
another, deeper reason for it. In fact there are two of them. The first has to do with the context
in which the need for differentiated integration arises. It is a situation of a long-lasting
standoff where the differences between the Member States reach a level where it becomes
increasingly obvious that no uniform solution meeting the needs of all of them could be
found. Every proposal for differentiated integration is thus, usually, preceded by a
58
For a compilation of different approaches see De Burca, Scott eds., Constitutional Change in the EU, From
Uniformity to Flexibility, Hart 2000
59
For a summary of all types of differentiation see Tuytschaever (PhD Thesis) and Stubb, A Categorisation of
Differentiated Integration in JCMS, Vol. 34, No. 2, June (1996).
60
See, for example, Beaumont, Lyons, Walker, Convergence and Divergence in European Public Law, Hart
2002.
16
considerable disagreement between the Member States. However, at the same time any
practically viable proposal for differentiated integration also requires from these very same
disagreeing Member States to find a substantial agreement on the facets of differentiation. In
other words, differentiated integration is necessary when the differences are big enough that
no reasonable agreement can be found for all to continue following the same rules with the
same pace, but it is only possible when these deeply disagreeing Member States can agree on
how to disagree.
The crux of the issue is thus whether the Member States, which can not agree on their cooperation in a particular field, can agree to disagree (and how much) in that field while
remaining part of the same structure of the whole. This is not an easy task, especially when a
disagreement is not so much due to some objective reservations on the side of some of the
Member States, but stems from the latter’s subjective usually strategic, economic or geopolitical reckoning aimed at maximizing their national interests. In such circumstances of a
strategic interest and power-play it is hard to expect from the Member States involved to be
ready to take a risk and trade the status quo for a more uncertain differentiated regime, for
which it is by no means clear, because it has not been tried out, for whose strategic benefits it
could actually work.
However, there is an additional dimension to what has been just said. For the Member States
to be able to make what sometimes seems almost as a quantum leap from uniformity marked
by disagreement to agreement on differentiation, they would need to posses an appropriate
guidance to that result. They would require a roadmap allowing them to understand how to
conduct their practices to implement differentiated integration at everyone’s satisfaction. The
task of providing one rests on the shoulders of legal theory of European integration. However,
the latter has so far failed to carry out its duty. It is a fact that differentiated integration has
been significantly under-theorized.61 A theory which would imbue the process as a whole
with a sense of coherence has been simply missing. But in the absence of theoretical
imagination of the means for coping with differentiated integration, it is impossible to expect
the latter to function in practice.
61
Also Walker (1998)
17
There has been something to differentiated integration that has so far been too hard a nut to be
cracked by theory, not least by practice. This has to do, as Walker has first noted,62 with a
kind of Europe that would emerge was differentiated integration put in place. The latter would
transform the existing bi-dimensional internal structure of integration, whereby one dimension
is statist and the other supranational, into a multi-dimensional. European integration would
exist as a common whole composed of the Member States, supranational level constituted by
all the Member States, and then various other dimensions (levels) in which different Member
States would participate in a different fashion to a different extent. To put this kind of
monster in practice it would require an institutional solution that would achieve three things at
the same time. Enable those Member States which would like to integrate further to do so, but
without using their opportunity at a disadvantage of those which do not want or can not join
them, while making sure that integration is preserved as a common whole. With all due
fairness, none of the theories of European integration, especially not the dominant ones, are
capable of offering one. All of them operate with a monistic mindset, which means that they
see the world in binary terms and postulate order as their highest normative ideal. This is
precisely in contrast with a multi-dimensional thinking necessitated by differentiated
integration which requires transcending the exclusive (as well as exclusionary) binary logic
and accepting complexity, flexibility, more disordered type of order as normal part of daily
affairs and not as pathological occurrences.
Conclusion
In this light it seems that objective prospects for re-launching the flexibility process,
especially its third order type of flexibility, remain rather gloomy. The main and decisive
reason for this, according to this short brainstorming paper at least, lies in our intellectual
foundations. As heirs of the monistic mindset we lack the capacity to mastermind even viable
theoretical models for a multi-dimensional European integration, which makes the latter’s
practical realization hardly possible. This means that in the light of practical unavailability of
differentiated integration, heterogeneity in European integration will have to be dealt with in
other ways. First and second order flexibility are at hand and have so far proven to be able to
accommodate some diversity and eschew the majority of stalemates. The other option is to
62
Walker, (1998) at 356.
18
continue with the present politics of incrementalism and its ensuing package-deals between
the Member States on the basis of the quid pro quo incompletely theorized agreements.63
However, we believe that sooner or later these techniques will prove inadequate for European
integration and a real move towards differentiated integration will be necessary. A clear need
for this is emerging already now in Europe of 27,64 but it will become all the more burning
and perhaps even indispensable ten years from now when all the countries of the Western
Balkans could join, not to mention the rising Turkish star at the Eastern horizon. If we soon
do not make any theoretical step forward, we will be then, much more so than today, faced
with a very annoying, if not even disturbing, situation with potentially destabilizing and
unsettling effects for European integration whereby the latter will be in a genuine need of
flexible solutions, even those of a third order, yet we will be theoretically and, of course, a
fortiori practically unable to come up with any workable and hence feasible models.
63
The expression "incompletely theorized agreement" was coined by C.R. Sunstein, "Constitutional Agreements
without Constitutional Theories", 13 Ratio Iuris, (2000), pp. 117-130. For the application of this approach within
the EU law see M. P. Maduro, "Contrapuntcual Law: Europe's Constitutional Pluralism in Action", in
Sovereignty in Transition, ed. N. Walker (Hart 2003), at p. 502. This means that the actors manage to strike an
agreement on a particular outcome yet without agreeing about the theories and reasons underlying this outcome,
since the latter is (usually) only possible after short-term trade-off for some benefits in another domain of EU
activities.
64
French proposal for Mediterranean Union, Polish pressure to find some privileged solution for Ukraine, etc…
19