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Differentiated Integration and Brexit - Coggle Diagram
Differentiated Integration and Brexit
Internal Differentiation
Variation in levels of centralisation of authority, i.e., the extent to which MS are part of EU projects
To accommodate for this variation, opt-outs based on national sensitivities are allowed.
Otherwise, these MS that are unwilling to move forward would simply veto integration decision [bringing it to a standstill]
MS have a continuous commitment to the EU project as a whole, and would not like to leave over a mere project.
Explaining differentiated integration - tension between
interdependence and politicisation
Interdependence of MS vs Politicisation of nationally-important areas
incentive for integration :arrow_right: Greater Interdependence = Greater cost of non-participation [in the interdependence project]
i.e., because interdependence comes with many benefits, the alternative of backing out would collapse a system that has already accommadated this interdependence.
incentive against integration :arrow_right: Greater politicisation = Greater cost of participation
i.e., post-functionalist tensions stymie a MS's effort to integrate, because there are certain policy areas that are considered 'too personal' to abdicate authority for.
Interdependence :arrow_right: Driven by need for certain political outcomes that could not be achieved unilaterally.
Politicalisation :arrow_right: Driven by increased awareness of EU affairs [Hooghe and Marks (2009)], Spillovers into nationally important areas, etc.
The European Union as a system of differentiated integration: interdependence, politicization and differentiation
Frank Schimmelfennig, Dirk Leuffen & Berthold Rittberger
Thesis:
Vertical differentiation mainly results from variation in interdependence
Horizontal differentiation is triggered by politicization
Internal differentiation – EU member states opting-out – is produced by supranational integration under conditions of high policy interdependence and asymmetric politicization across member states.
External differentiation results if non-members that are unable to join because EU membership is highly politicized opt in selectively in highly interdependent but weakly politicized policy areas.
Analysis / Normative Information
Theoretical Spectrum from a polity to operate on:
Unitary State: Include maximum functional scope of policy areas
International Organisation: Decentralised and task-specific, covering a wider territorial influence
The EU, given its complex differentiation arrangements, is deemed to be
captured
in “alternative visions for competitive governments for Europe” (Frey and Eichenberger) [critique: the EU is superior considering the pervasiveness of its institution throughout the European states]
Key Findings
Analysis from Data
“Horizontal differentiation has been the facilitator – or the price – of dynamic growth in both vertical and horizontal integration”
Alleged dilemma between deepening and widening integration does not exist
Normative
Interdependence can generally be conceived as a factor that creates demand for and promotes integration
Politicization tends to inhibit integration
The balance between the two is then achieved through H.D. and V.D.
Matrix of outcome
If interdependence is low, politicization does not matter much because there will not be major demand for substantial integration in the first place.
If strong interdependence is combined with no or weak politicization, demand for integration is likely to be met.
If strong interdependence is confronted with strong politicization, integration will fail [integration with the unwilling will not manifest], remain at a low level [stalemate],
or
differentiation
Evaluation of Key Findings through Real-Life Application
Internal Market: [high interdependence and low politicization]
Showcase high vertical integration and the absence of internal and external differentiation
Although the economy may not be linked to state identity, the concept of EU membership, for whatever reason, may be sufficiently political enough to evoke the negative view.
Monetary Union [high interdependence and high politicization]
Remains at the level of intergovernmental coordination: always been “the most internally differentiated policy area of the EU” → high interdependence and asymmetric politicization.
Monetary policy’s status as a core state power was not sufficient to thwart supranational integration in this area altogether.
Defence [low interdependence and high politicization]
High interdependence is a necessary condition of high vertical integration and asymmetric politicization is a necessary condition of internal differentiation.
The integration of defence affects the core of state sovereignty and autonomy, qualities which tend to be particularly sensitive to questions of national identity
Main Tensions
Normative: is it good or problematic that we have these systems of opt-ins and opt-outs?
Asymmetrical Integration: What is the impact on the overall project / perspective of individual MS?
Differentiated integration as a constitutional model?
Implicit tension - Does EU policy-making enhance or limit MS' capacity to structure societies in the way they desire?
Collective Action VS Individual Action
The relationship between the UK and the EU
How does their relationship look like now, and is it ideal?
What are the motivations and proposals from both sides?
What principles are limiting them from compromise?
External Differentiation
Variation in levels of territorial extension, i.e., the extent to which non-Ms are part of the EU's projects [e.g., Norway; Switzerland]
Accommodated for via "opt-in" policy to widen scope of operations. The EU reigns as the dominant party as the non-MS have to comply with the EU's standards to opt-in
Which is better? Uniform Integration of Differentiated Integration?
In favor of Uniform Integration
The option for differentiated integration leads to disintegration of the EU
Too much leeway for differentiation = less commitment to achieving EU goals ['cherry-picking issue']
UK was the most internally differentiated MS in the EU and still had Brexit.
Fosters culture of national interest bargaining instead of EU cooperation
To maintain the stability of the EU, UI is preferable
Commitment to the EU project should be all-or-nothing.
In favor of Differentiated Integration
Prevents the Maltese question / Prevents the overall development of integration because of the reluctancy of one state.
Respect for national interests and autonomy is favorable in terms of being better accepted by MS and by citizens.
Bolsters the
demoicratic
legitimacy of the EU: Gives effect to what national citizens want from it
Brexit
Leaving the EU - Implications and Outcomes
Negotiation
Economic success for the UK post-Brexit may be an incentive for other MS to leave the EU. Therefore, there is an incentive for the EU to give the UK a bad deal.
Eurosceptic opposition creates political incentive for 'very hard' Brexit or 'very soft' Brexit
David Cameron:
The UK was already autonomous in the areas in which it wanted to decide differently from the rest of the EU.
The areas in which it was tied to the EU (fisheries, internal market, etc.) were all areas which, even for the UK's interests, were better achieved by the EU.
Conclusion: Brexit had a powerful emotional / symbolic basis
Legal Implications
Impact on Directives and Regulations that came into effect prior Brexit [resolved through retention of EU law until Exit Day]
Rights of Europeans in the UK?
Lack of institutions for areas which the EU oversaw [need to create these institutions from scratch]
Potential hard border between Ireland and Norther Ireland
Agreements
Current Agreement:
Withdrawal Agreement
Protects:
Citizen rights - UK retains obligations towards already resident EU workers/citizens
Institutional configuration - has a yearly Joint Committee on the "implementation, application, and interpretation" of the WA.
Obligation to give "due regard" to EU law, which degrades in strength over time.
Bradley, ‘Agreeing to Disagree: The European Union and the United Kingdom after Brexit’ (2020)
EU law is applied to the Withdrawal Act, which the UK must give effect to via its NCs.
However, case law of the CJEU also counts as EU law. Hence, "due regard" = unclear
UK courts must act ‘in conformity with any Court decisions handed down before 1 January 2021, but need only have ‘due regard’ to decisions handed down after that date (Art 4 (4) of WA)
Implications
Cases pending at the end of the transition period
Maintain ECJ's juris for cases pending at end of transition period - ensures efficiency and justice because
Court knows of dispute and can provide solution faster
Facts occurred under Union law as interpreted by the ECJ
New cases based on old facts
Regarding the Safeguard Protocol: possibility of initiating infringement actions against the UK
Court = jurisdiction over new infringement actions
EComm can initiate proceedings over the UK's failure to comply with any decision adopted in admin procedures before end of transition period
such proceedings would ‘have binding force in their entirety on and in the United Kingdom
New categories of jurisdiction
Court can rule without limitation in time on 'infringement, enforcement, and preliminary ruling proceedings' on 'the application and interpretation of the rules of the Agreement regarding the Union’s own resources and the implementation by the UK of Union programmes.'
Status as a newly departed ex-MS = acknowledged
Highest courts of the UK invited by the CJEU to establish a ‘regular dialogue’, ‘analogous to the dialogue in which the Court... engages with the highest courts of the MS'
help 'facilitate the consistent interpretation of the Agreement in the 2 jurisdictions' (useful in future)
Potential Agreements
Politicised and Diplomatic
VS
Legal and Institutional
The Swiss Deal
Means of enforcement without judicial intervention [by administrative action]
Very fragile - i.e., the moment a term is breached, the entire treaty ceases to have effect.
Trade and Cooperation Agreement
Allows for the exclusion of EU institutions and instead for an independent interpretation of treaty provisions
exists with Canada
Far more diplomatic than institutionalised
Effectively, the UK may never 100% leave the EU, especially in an age of globalisation because of the
Extraterritorial Effect
Int'l Companies have to follow EU rules to trade within the EU internal market. Given size of market inside, there is high incentive to do so.
Many standards are 'indivisible' economically, technically, or practically:
E.g. Facebook cannot have different privacy settings for EU users, Argentinian users, etc. so they simply apply the EU rules universally
Northern Ireland :arrow_right: Possibility of:
Hard border between NI and I
Hard border between NI and the rest of the UK (Boris Johnson)
No border [UK remains part of the EU's custom union] (Theresa May)
2nd Option: NI is de facto part of the Union; Applocable EU norms are managed by the Commission and CJEU, etc.
UK's perspective
Want this to instead be governed by a bilateral agreement between EU and UK, rather than by the EU's deeply legalised system (ECJ + CJEU involvement)
EU's perspective
The current arrangement is, for legal reasons, non-negotiable: the EU cannot agree to international agreements that undermine the autonomy of the EU's legal system
UK Command Paper (July 2021) - Reforms for NI Protocol
Get rid of the role of the CJEU and Commission in enforcement of the Protocol
Use bilateral negotiation and agreement/consent
Reform of substantive rules - SPS (essentially food checks), state aid, VAT
Note that these proposals were previously made by the UK prior to the WA, and they were rejected by the EU as inappropriate/illegal under EU law
Safeguard Clause (Art. 16 Protocol) - doesn't solve much of the 'sausage war' issue because of its extremely high threshold for disapplication.
The CJEU cannot allow for this bilateral negotiation because the EU is primarily built on law [esp. after the Treaty has left the legislative factory].
CJEU has established a rule whereby it is impossible for the EU to allow an institution that is not the CJEU (e.g. national court, international court, etc.) to have the power to interpret or disapply EU law
Hence, UK's proposals = incompatible with the EU's stance.
Options for the Future Relationship
:
"Brexit: Where is the EU–UK Relationship Heading?", Simon
Hix
EEA / Similar Arrangement as Norway and the EU
Very Soft
The harder the Brexit, the more freedom the UK gets. However, it comes at the cost: the implementation is
immediate
and
holistic
, i.e., without sufficient pre-planning and arrangement, this freedom could lead to chaos.
The softer the Brexit, the more influence the EU still retains over the UK. The relationship is such that the UK and the EU can never be equal bargaining powers [by the political context and the institutional set-up of the EU], to run by law rather than diplomacy].
Hence, while the withdrawal would be more controlled and easier to handle, freedom is not fully achieved.
EEA -
Soft
FTA + (include financial service - important to the UK)
Middle
Motivation for Either parties regarding which path they rather take
UK
:
Wants to reduce impact of a hard Brexit [sudden loss of regulation]
Does not want to pay more [Dhingra et al. (2017): trading under a no deal/WTO outcome would cost 2.7 per cent of GDP,
Reduction in EU immigration]
Wants to preserve the workforce flow coming in from the EU.
They want to retain Parliamentary Sovereignty
Preference of Outcome:
On an economic basis
: EEA > EEA - > FTA + > FTA > WTO (
best to have increased access to the internal market
)
On a political basis
: WTO > FTA > FTA +
(
EEA - and EEA both include the conferring control to the ECJ and not having national competence over migration - two of the key goals of Brexit. Therefore, it is unlikely that the UK would ever accept those positions
)
Overall
: FTA+ > FTA > WTO
Matrix of likely outcome:
UK [Compromise] + EU [Compromise] = EEA -
UK [Hardball] + EU [Compromise] = FTA +
UK [Hardball] + EU [Hardball] = Basic FTA
EU
Prevent a good deal for the UK, as that may incentive other states to lease as well.
Prevent a uniquely British model - hence, preferrential treatment would have to be based on current arrangements
Does not want to undermine the integrity of the four freedoms in the single market nor allow for cherry-picking of other policies.
Preference of Outcome:
On an economic basis
: EEA > EEA - > FTA + > WTO > FTA
(
The two EEA options would give it significant control over the UK markets. FTA + is only approved because the UK is a significant importer of financial services for the EU. Otherwise, WTO would be the next preference [which is why FTA ranks below WTO]
)
On a political basis
: EEA > FTA + > FTA
(
EEA - would lead to a British model, which the EU wanted to avoid. Furthermore, the EU wanted to prevent further disintegration, so WTO would be unwanted
)
Overall
: EEA > FTA + > FTA
Long-Term Implications:
Public opinion in the UK may become increasingly anti-Europea
Contrast: increase in support in Sweden and Austria, who accepted more pro-EU deals than those Norway or Switzerland accepted
FTA / Similar Agreement as Canada and the EU
Hard
No Deal / WTO Rules
Very Hard
Towards a Radical Revision of the Northern Ireland Protocol?
Tobias Lock
Constitutionally impossible
for the EU to agree to the UK’s proposals regarding the renegotiation of the Protocol on NI
without
agreeing to a radical revision of the Protocol that would endanger
the achievements of its overall aims.
Means of resolving any potential conflict or legal issues that arise later [ UK Government’s proposal in relation to Governance ]
Dispute settlement aligned to that in the WA (straight-forward and practical)
A radical revision of the Protocol to avoid the constitutional constraints of the exclusive jurisdiction of the ECJ, all references to EU law must be removed from the Protocol and replaced with sui generis rules
Potentially lead to weak enforcement and risk the entire foundation of the Protocol.
Critique of the Command Paper
Question of the Direct Effect of the Protocol
Both parties need to
adapt
to it - beyond the scope of EU action
Potential impact on access to justice for citizens [enforceability]
A more limited adaptation that would only affect the Protocol might turn out to be too widely phrased as well and affect its Article 2, which enshrines the individual rights guaranteed in the Good Friday/Belfast Agreement.