Constitutional challenges of the enlargement : is further enlargement feasible without constitutional changes?

This research paper was requested by the European Parliament's Committee on Constitutional Affairs and commissioned, overseen and published by the Policy Department for Citizen's Rights and Constitutional AffairsStudy of the European Parliament ; Policy Department for Citizens' Rights and Constitutional Affairs ; Directorate General for Internal Policies of the Union ; PE 608.872 This in-depth analysis, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Constitutional Affairs, recalls the earlier debates linking the enlargement of the Union with the need to adapt its constitutional framework, and discusses whether further constitutional reforms, involving Treaty change or not, are necessary when a further enlargement of the Union will take place in the near future. It focuses on three main themes: the Union’s decision-making capacity; forms of differentiated integration; and the question on how to ensure respect by all member states for the Union’s fundamental values

Legal feasibility study of the differentiation options

In recent years, leading political actors and institutions have suggested further differentiation as a plausible scenario for the EU’s future, in fields such as economic governance, social Europe, migration, tax harmonisation, and defence. One central question is to what extent such scenarios require revision of the current EU Treaties and which ones can, on the contrary, be implemented under the current Treaty text. As the chances for Treaty revision are very remote, the latter option is the more promising. Under the current rules, the various forms of differentiated integration offer different costs and benefits due, in part, to the legal conditions and constraints applying to them. For example, enhanced cooperation (wherein a group of member states can ‘use’ the EU institutions) does not allow for self-selection of participating countries and can only be undertaken for specific projects and as a ‘last resort’. By contrast, separate agreements concluded under international law between ‘willing and able’ member states do allow for self-selection of the participants, but are less effective tools as they cannot use the legal instruments of EU law. This paper presents and weighs the advantages and costs of each of the forms of differentiated integration, in relation to the various policy areas in which they might be experimented in the coming years. It does so from a legal perspective.This project received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement number 822304. The content of this document represents only the views of the InDivEU consortium and is its sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains

Along the seam of Europe’s composite constitution : acts of the representatives of the member states

in: Liber amicorum Besselink (2021) p. 69–83

Guest Editorial : EU emergency law and its impact on the EU legal order

Published: February 2022There is a widespread view in the European studies literature that the European Union has faced a series of important crises in recent years; one even finds the view that the Union is facing one overall multidimensional crisis. Crises have frequently happened in the course of the earlier history of European integration as well, and one could almost retrace the entire history of the integration process based on the occurrence of crises. The canonical listing of those remote and recent crises contains a mixture of endogenous institutional crises (such as the famous “empty chair” crisis of the 1960s3 or the various failures of Member States to ratify an EU Treaty revision) and exogenous developments (such as the banking crisis of 2008, the migration crisis of 2015, the current pandemic crisis, or the climate change crisis). The examples cited above show that there is no neat distinction between the two categories as, arguably, the institutional features (and decision-making failures) of the European Union can contribute to exacerbate a crisis that is of external origin, as the development of the banking crisis into a euro crisis may illustrate. What the examples have in common, though, is that they refer to “events or developments widely perceived by members of relevant communities to constitute urgent threats to core community values and structures.” That definition emphasizes the importance of perceptions and of framing: in politics generally and in European politics specifically, theexistence of an urgent threat to core values or structures of the community is itself contested; what may seem like a crisis to some actors may appear like normal events or developments to others. A further complication is that some crises are fast-burning whereas others are slow-burning: the urgency of the threat may appear suddenly and abruptly (as with a terrorist attack, a natural disaster, or the spread of a pandemic) or it may appear more gradually, step-by-step (as is the case, arguably, with the EU’s rule of law crisis emerging from Hungary and Poland). Again, this is not a neat distinction, since a slow-burning crisis can have fast-burning phases, as was aptly illustrated by the euro crisis which lasted for several years but required some very rapid emergency measures at some key moments in time

Integration through funding

Published online: 2023The European Union does not have an army or a police force. Its budget is small. It achieves its integration aims mainly by regulating – by making laws that apply throughout Europe. It is often noted that ‘what the EU lacks in terms of material capacity, it partly compensates for by regulation’.[1] This contrasts with federal systems where the ‘power of the purse’ of the federal state plays an important role in governance, in two different ways: by operating direct transfers to the member states for their general use; and by funding the member states or local authorities for specific purposes decided at the federal level. The latter is often described as the ‘federal spending power’. By spending money, the federal level exercises power, in that it can force or at least encourage the member states or local authorities to pursue the policy preferences set at the federal level. In the European Union, general financial transfers from the European to the member state level do not exist (quite the opposite, in fact); however, there are various ways in which the European Union uses its ‘spending power’ to try and steer the policy choices made at the national or local level. Such integration through funding forms the object of this chapter. As is the case with European-level law-making, the question whether a given policy requires spending at EU level depends on an assessment of the added value compared to action taken by national governments alone.[2] However, public expenditure by the EU is not only subject to such a subsidiarity test. It is also subject to other constraints of EU constitutional law that will be discussed in the next sections: it should remain within the limits of the competences conferred on the Union by the Treaties (section 2); and it must respect the rules and limits imposed by EU public finance law (section 3). After that, section 4 will give a general overview of the main policy areas in which integration through funding is happening. Section 5 will explore the way in which instruments for emergency funding have recently been turned into instruments to achieve the EU’s general policy goals, and section 6 will show how cohesion policy has now become the institutional seat of broadly based integration-through-funding mechanisms

Retour a Costa : La primaute du droit communautaire a la lumiere du droit international

Digitised version produced by the EUI Library and made available online in 2020

Legal conditions and constraints for differentiated integration projects

This set of five policy briefs draws the conclusions of five larger studies dealing with the legal feasibility and constitutional acceptability of the various mechanisms of differentiated integration (DI). Those conclusions also reflect on the future prospects for DI from the legal and constitutional perspectives. The policy briefs deal, in turn, (i) with the conditions set by the European treaties for the various mechanisms of differentiated integration, (ii) with the consequences of DI for democracy and the institutional balance in the EU, (iii) with the question whether, or to what extent, fundamental rights and the rule of law can be the object of DI, (iv) with the practical constraints imposed on DI by national constitutional laws; and (v) with the particular legal and institutional characteristics of DI in the relation with third countries

The law as tool and constraint of differentiated integration

In recent years, leading political actors and institutions have suggested further differentiation as a plausible scenario for the EU's future, in fields such as economic governance, social Europe, migration, tax harmonisation, and defence. One central question is to what extent such scenarios require revision of the current EU Treaties and which ones can, on the contrary, be implemented under the current Treaty text. As the chances for Treaty revision are very remote, the latter option is the more promising. This paper explores the main legal mechanisms allowing for further differentiation, namely enhanced cooperation and the conclusion of separate international agreements between a group of EU states. It examines their legal feasibility and the legal constraints that affect their potential use