Hostname: page-component-7b7567c8c-tnzcf Total loading time: 0 Render date: 2026-11-12T18:04:53.153Z Has data issue: false hasContentIssue false
  • English
  • Français

Variable Geometry or Concentric Circles: Patterns for the European Union

Published online by Cambridge University Press:  17 January 2008

J. A. Usher
Rights & Permissions [Opens in a new window]

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the 'Save PDF' action button.

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

Information

Type
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

References

1. [1988] E.C.R. 5483.

2. [1987] E.C.R. 4199; [1988] 3 C.M.L.R. 57.

3. [1974] E.C.R. 33; [1974] 1 C.M.L.R. 523.

4. In the sense that they remain free to make a further reference on the same point.

5. [1986] E.C.R. 117.

6. [1987] E.C.R. 3639.

7. [1990] E.C.R. 1–3365.

8. Commission Reg.2124/85 (1985) OJ. L198/31.

9. [1991] E.C.R. 1–935.

10. (1993) OJ. C39/6.

11. Case C-39/94 SFEI v. La Poste (11 July 1996).

12. (1995) OJ. C312/8.

13. Case 44/84, [1986] E.C.R. 298; [1986] 2 C.M.L.R. 1.

14. [1960] E.C.R. 1125.

15. [1979] E.C.R. 2923.

16. [1984] E.C.R. 1891.

17. [1984] E.C.R. 1921.

18. [1990] E.C.R. 1–4135.

19. [1991] E.C.R. 1–5357.

20. Case C-392/93 R. v. H.M. Treasury ex p. British Telecommunications pic (26 Mar1996), ECJ.

21. Art.A.

22. In particular, Arts.lO2a to 109m of the EC Treaty.

23. See Council Regs.3300/91 (1991) OJ. L315/1 and 1432/92 (1992) OJ. L151/4.

24. [1991] E.C.R. 1–6079; [1992] 1 C.M.L.R. 245.

25. Case 68/88 Commission v. Greece [1989] E.C.R. 2965.

26. Case C-2/88 Zwartveld [1990] E.C.R. 1–3365.

27. Text as downloaded from the Internet.

28. Council Regs.3 and 4/58 (J.0.1958 pp.561 and 597).

29. (1991) OJ. L288/32.

30. (1992) OJ. L231/26.

31. 12 Nov. 1996.

32. Case C-450/93 Kalanke v. Freie Hansestadt Bremen [1995] E.C.R. 1–3051.

33. (1994) O J. L254/64.

34. Protocol ll.para.2.

35. [1991] E.C.R. 1–6079.

36. (1990) OJ. L78/23.

37. (1990) OJ. L78/25.

38. Art.lO9k of the EC Treaty as amended by the Maastricht Treaty.

39. Art.109k(5).

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.

46. Reflection Group comprising representatives of the foreign ministers of the member States, and of the President of the Commission, and two representatives of the European Parliament, established in June 1995 in anticipation of the opening of the IGC.

47. Text as downloaded from the Internet.

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

49. Supra n.13.

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

51. Art.73(l)(b).

52. The signatories of which are not limited to the member States of the European Union.

53. [1994] E.C.R. 1–5267.

54. Para. 103.

55. [1983] E.C.R. 3663; [1985] 1 C.M.L.R. 220.

56. Agence Europe, 21 Dec. 1996.

57. Though it was also agreed at the Luxembourg meeting in December 1996 that controls could be eliminated at the borders of Italy. Greece and Austria in October 1997.

58. Reuter European Community Report. 15 Oct. 1996.

59. Art.l.

60. Convention, Arts.2–4.

61. Art.21.

62. Arts.7 and 20: Convention, Arts.9–27.

63. Arts.K to K9.

64. Convention. Arts.29 el seq.

65. See Blanc, “Schengen: Le chemin de la libre circulation en Europe” (1991) Revue du Marché Commun 722,723.

66. Convention, Arts.39 el seq.; this mutual assistance extends to cross-border surveillance for certain offences (Art.40) and pursuit across frontiers for the same offences and e.g. after serious road accidents (Art.41). Pursuing officers would be permitted to carry arms for their “legitimate defence”.

67. Convention, Arts.48 el seq.

68. Convention, Arts.70–76.

69. Convention, Arts.92–119.

70. Which entered into force in Jan. 1994.

71. (1996) OJ. L140/52.

72. [1991] E.C.R. 1–3479; [1991] 3 C.M.L.R. 325.

73. Case 125/84 Continental Irish Meal [1985] E.C.R. 3441; [1985] 3 C.M.L.R. 713.

74. Cases C-294/88 and C-194/89 Dzodzi [1990] E.C.R. 1–3763 and Case 231/89 Gmorzynska-Bscher [1990] E.C.R. 1–4003.

75. [1991] E.C.R. 1–6079; [1992] 1 C.M.L.R. 245.

76. Ibid.

77. Opinion 1/92 [1992] E.C.R. 1–2821.

78. For further discussion see Kronenberger, “Some Questions Raised by the Restamark Judgment” (1996) 45 I.C.L.Q. 198.

79. [1995] 1 C.M.L.R. 161.

80. [1993] E.C.R. 1–1277.

81. Even though in Opinion 1/91, supra n.68, at paras.27 and 28, the ECJ appears to have doubted whether the EFTA States were obliged to accept this concept, and that of the primacy of EC law (which, it may be submitted, is inherent in the concept of direct effect).

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.

84. In its Opinion on the IGC of 28 Feb. 1996 at para. 42.

85. Text as downloaded from the Internet.

86. Text as cited by the Commission in its Report of 28 Feb. 1996 at para. 43.

87. Case C-117/95 Commission v. Italy (26 Sept. 1996).

88. [1979] E.C.R. 2575,2596.

89. E.g. Case 45/86 Commission v. Council [1987] E.C.R. 1493.

90. See Case 90/74 Deboeck v. Commission [1975] E.C.R. 1123.

91. Case 259/87 France v. Commission [1987] E.C.R. 4393.

92. [1993] E.C.R. 1–3605.

93. [1976] E.C.R. 1473.

94. Though Advocate-General Warner did not give an opinion in such a case until Case 143/78 De Cavel v. De Cavel /1979/ E.C.R. 1055. which was heard (if not registered) after the Accession Convention had been signed.

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