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Variable Geometry or Concentric Circles: Patterns for the European Union

Published online by Cambridge University Press:  17 January 2008

J. A. Usher
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Extract

Once upon a time, a Professor of European Institutions, at least if a lawyer by training, could simply assert that the European Communities are based on the rule of law, that they create institutions with autonomous powers, which are able to issue legislation binding as law throughout every member State of the Community, and that they create courts which have power to exercise judicial control over a complex network of relationships between the Community institutions, the member States and private citizens. While these statements are still true, however, they must now be laced in a rather more complex context. Furthermore, there is a contrast between on the one hand the intensification (to borrow a word from the Common Agricultural Policy) of certain fundamenta s of the EC legal order in the recent case law of the European Court, and on the other hand attempts by member States to escape this through non-EC forms of cooperation in the framework of the European Union, the development of the idea that not all the rules of the EC Treaty apply to all the member States, and the entry by the majority of the member States into a separate Treaty, the Schengen Agreement, dealing with matters which might be thought to fall under the EC Treaty or the Home Affairs and Justice pillar of the Treaty on European Union—all of which might generically be referred to as variable geometry. In the other direction, it may be observed that large amounts of substantive

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Articles
Information
International & Comparative Law Quarterly , Volume 46 , Issue 2 , April 1997 , pp. 243 - 273
Copyright
Copyright © British Institute of International and Comparative Law 1997

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References

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40. Art.109e(3).

41. Art.109k(3) and (4).

42. UK Protocol, Art.5.

43. Though it will be recalled that under Art.109(1) it needs to act unanimously to conclude the resultant agreement.

44. Report of the EMI to the informal ECOFIN Council. Verona, 12–13 Apr. 1996.

45. Reuters European Community Report, 16 Dec. 1996.

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47. Text as downloaded from the Internet.

48. Art.K3(2)(c).

49. Supra n.13.

50. Which, however, is not yet in force.

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82. And on the day on which the lecture on which this article is based was delivered (1 Nov. 1996) the point was given particular significance by the decision of the Ulster Unionists as to how they would vote in the UK Parliament on gun control legislation which would not apply in Northern Ireland.

83. Text as downloaded from the Internet.

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95. See. to take a couple of random examples. Case 60/81 IBM v. Commission [1981] E.C.R. 2639 or Case C-49/88 Al-Jubail Fertiliser v. Council [1991] E.C.R. 1–3187.

96. Cases C-294/88 and C-194/89, and Case 231/89, supra n.74.

97. Or indeed that they are the only examples of close relationships with non-member States. Attention may be drawn in particular to the customs union with Turkey and Cyprus.

98. Reuter European Community Reports. 23 and 28 Feb. 1995