Member State Interests and European Union Law

Revisiting The Foundations Of Member State Obligations

Marton Varju

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781032239699
• eBook ISBN: 9780429664199
• Topic: Law
• Subtopic: International Relations
• Index: Law

This book re-examines the law governing the obligations of the Member States in the European Union from the perspective of the interests formulated and pursued by national governments in the EU.

Member States' interests provide the source as well as the limitations of the obligations undertaken by the Member States in the Union. From the early days of European integration, they have determined how the law frames and defines EU obligations in the Treaties, in legislation and in the jurisprudence of the EU Court of Justice. The book neither challenges directly, nor undermines the current state of the law in the EU. Instead, it introduces a framework for interpreting and analysing legal developments – both legislative and jurisprudential – from an angle which brings the legal dimension of the membership of States in the European Union closer to its political reality. By choosing Member State interest to frame its analysis of the law, the book expresses a clear intention to explore further the interactions and the potential interconnectedness of the intergovernmentalism of EU decision-making and the normative supranationalism of the application and the enforcement of Member State obligations, in particular at the national level. Analysing how diversity among the Member States, which arises from different local interests, institutional frameworks and socio-economic arrangements, is assessed and sustained in EU legislation and in the jurisprudence of the Court of Justice, the book examines the impact of EU obligations on Member State territorial authority and territoriality. Providing a new perspective on Member State interests and European Law, the book closes the widening gap between the politics and law of European integration and between its political science and legal analysis.

The book is essential reading for students and scholars in the field of state law, EU law and politics.

1 Member State interests and EU law

An introduction

For legal analyses of European integration, the fundamental condition of inter-State cooperation in Europe that the legal norms enacted in European Union and the corresponding legal obligations undertaken by the Member States bear the mark of economic, social, political and other interests formulated at the national level represents a clear challenge. EU legal scholarship also faces limitations when it attempts to internalise the related circumstance that the economic, social and political conflicts that EU law may generate when confronted with competing interests, values or other considerations, which principally are formulated in the national arena, and in most instances emerge and require responses locally at the level of the Member States. There are a number of factors, such as the place and the function found for law in EU integration, the core ‘constitutionalising’ principles developed by the EU Court of Justice which place EU rules on the top of a normative hierarchy in regards the legal systems of the Member States, or the functional expectations of uniformity and effectiveness concerning the implementation of Member State obligations and generally compliance with those obligations, which prevent EU law and its analysis from recognising the relevance of Member State interests in policy-making and governance in the EU.

The interests brought by national governments to the Union and their impact on common policies are admittedly not issues that EU law and EU legal scholarship need to address. EU law – in particular, its so-called ‘normative’ dimension – operates within a self-determined and rather closed conceptual and doctrinal space where formalism dominates the understanding of the rights guaranteed and the undertaken by the Member States. Its capacity to reach out from that space and address issues which bear relevance for its broader context, such as the interests pursued by national governments to shape EU policies, has been substantially constrained by the specific purpose assigned to law in European integration as revealed in the jurisprudence of the Court of Justice. As often told, law had been put into use in the Union with the explicit aim of bringing the implementation and realisation of EU objectives under a formal framework whereby the effectiveness of those processes can be secured and whereby they cannot be undermined by the Member States unilaterally prioritising their respective interests over their prior agreed commitments. It offered a number of (inherent) qualities, such as its ability to ensure that the obligations regulated are given effect with the same force and in the same manner in the entire territory affected, which made law an attractive instrumental choice. With this background, it is understandable why considerations which may challenge its ability to secure outcomes in this manner, such as the interests of the Member States which may demand immediate protection, have been suppressed not only in their treatment in EU law, but also in analyses of legal developments in the Union.

Nevertheless, Member States’ interests represent considerations which EU law cannot afford to ignore and which legal scholarship must not overlook when framing its analysis of EU legal developments. The EU legal order has been suggested to have also a so-called ‘decisional’ dimension, which concept was used to denote the political process leading to the adoption of EU legal measures and the obligations imposed by them on the Member States. In this dimension of EU law, the direct relevance and impact of Member State interests have been recognised, as well as their consequence that Member State obligations, as outcomes of EU decision-making, reflect the respective interests of national governments and are the results of the Member States agreeing that they have certain interests in common. Although introduced to separate the politics of Member State obligations from their legal implementation, the ‘decisional’ dimension of EU law should by no means be treated as bearing no relevance for its ‘normative’ dimension. The ‘decisional’ dimension of EU legal obligations teaches us that the application and the enforcement of EU law in the Member States is in their interests and that by meeting their EU obligations, the Member States give effect to their prior agreed and legally expressed commitment to realise their shared interests. From this perspective, disagreements with EU legal obligations and Member State decisions to disengage from those obligations represent a conflict between the different interests held by the national government concerned, between those embodied in EU legal rules and those which are threatened by the implementation of those rules. These are the basic ideas using which this book is going to re-examine the law on Member State obligations in the EU. Its aim is not to challenge or replace the current normative framework underpinning the operation of Member State obligations as legal obligations. Rather, it aims at investigating whether the original choice, which was made by the Court of Justice, to detach the obligations undertaken by the Member States in the EU from the local interests which serve as their political source, as well as the political basis of membership in the Union itself, and to treat them accordingly in law¹ can be reconsidered, and whether the framing of Member State obligations as formal obligations under EU law can be reinforced by making the political dimension of those obligations, as manifested in Member State interests, more explicit.

1 And not as obligations which follow fr om a principle of self-help or reciprocity as principles governing membership in the EU.

There are a number of more specific reasons for integrating into the legal analysis of Member State obligations the interests brought by national governments to the Union. In a framework of inter-State cooperation whereby conflict between common obligations and particular local interests are not uncommon, the analysis of legal developments can only provide a comprehensive understanding of how a ‘community’ of formally equal States operates under law if the political source of the legal obligations imposed on the Member States – on themselves – are taken into account. The aim here is to reconsider the cleavage that emerged between EU law’s formalistic treatment of Member State obligations, which demand uniform and effective implementation and enforcement, and the historically persistent state of European integration itself that it is driven by the interests of its Member States and is held back when its Member States are divided as they pursue different, possibly conflicting, interests. Furthermore, the law on Member State obligations may only reach its true potential in case it addresses another fundamental contradiction. EU law’s formalist treatment of Member State obligations has created an essentially vertical relationship between the Union and its Member States. This stands in stark contrast with how – from the perspective of the interests brought by the Member States to the Union – membership in the EU expresses the mutual dependence of interdependent States which decide to impose on themselves common obligations so that they can achieve certain local but transnationally expressed interests offering considerable individual and collective benefits.

The broader context of European integration offers further rationales for reconsidering in legal analysis the law on Member State obligations from the perspective of Member States’ interests in the EU. First, the domestic political arena occupied by national governments, which act locally and outside of national territory under essentially ‘patriotic’ political mandates, continues to have utmost political relevance for national and for European governance. EU membership and the obligations undertaken in that context raise issues related to political responsibility and legitimacy domestically whereby the interests represented and pursued by national governments are formulated. Also, the responses given to the financial and economic crisis or the European migration crisis should remind us that despite the advancement of European integration the most relevant powers, capacities and functions have been retained by the Member States. National public finances devastated by the crisis were stabilised by national governments which imposed new taxes, restructured expenditures and secured government financing. National economies were put back on track by national governments which secured foreign investment, rescued failing undertakings or reinstated public ownership in strategic sectors or industries. Employment and social protection crises were addressed by national employment programmes or by investment into public services and other public infrastructure. The migration crisis continues to be managed by individual Member States using local capacities in border protection and immigration administration. Expanding EU law’s formal approach to EU legal obligations and framing them from the perspective of Member State interests is expected to internalise adequately the political realities of membership in the European Union.

The relevance of the Member States and their interests is highlighted further by the internal divisions within the Union and disenchantment at national level with European integration. Based on their respective interests, the Member States continue to disagree over fundamental policy directions in the EU, as well as on the corresponding obligations which national governments are expected to undertake. These local interests may have their roots in the significant geopolitical differences which continue to characterise Europe and which follow from unignorable historical, economic, social, political and cultural causes determined by geography. For instance, there are undeniable cores and peripheries within the EU which structural condition determines what kind of interests are represented and pursued at European level and what kind of common obligations the different Member States are prepared to undertake. Membership crises, such as the UK’s impeding withdrawal from the EU or the critical undermining of ‘European values’ or the backsliding in fundamental qualities of statehood in certain Member States can be traced back to these geographically framed divisions within the EU. With these conflicts in perspective, the stake is no longer the ability of law in the EU to ensure the effective and uniform implementation of common policies and the corresponding legal obligations in the Member States. Rather, the law needs to ensure that the Union can operate as a ‘community’ of States with sometimes corresponding, sometimes different, interests, whereby the interest of others, in particular those of other Member States are appreciated and taken into account.

Member State interests and EU obligations

The European Union was brought to life voluntarily by its Member States in order to realise through common action the interests (‘objectives’) they share. This has been recognised by the Treaties themselves,² but it also follows from the politics of EU membership.³ The international agreements which anchored the membership of individual European States were negotiated and signed by national governments under their local political mandates, which held them to pursue the interests and needs emerging in the local political community. When developing common policies within the EU framework and participating in EU decision-making, national governments also act based on their political mandates, and represent the interests of their Member States on that basis. In this light, the obligations undertaken in the Treaties and in individual pieces of EU legislation seem to find their origin in the respective interests of the individual Member States, which are often framed as objectives of concrete national policies, and in the joint commitment by the Member States to realise their shared interests. Membership in the European Union, therefore, seems as much based on calculation and selfishness by individual Member States keen to promote their respective interests as on their willingness to cooperate and negotiate with each other and promote the causes that they may have in common.

2 Ar ticle 1 TEU.

3 See the analysis of post-war European multilateralism by Moravcsik in A. Moravcsik, ‘Conservative Idealism and International Institutions’, (2000) 1 Chicago Journal of International Law 291.

This linkage between the interests held by the Member States and the obligations which they imposed on themselves in law is often quite obvious. A number of EU legal provisions make an explicit reference either to the Member States being permitted to advance their own interests in a ...

Table of contents

• Cover
• Half Title
• Series Title
• Title
• Copyright
• Contents
• List of cases
• Preface
• 1 Member State interests and EU law: an introduction
• 2 Obligations
• 3 Values and identities
• 4 Competences
• 5 Diversity
• 6 Territoriality
• 7 Autonomy
• 8 Derogations
• 9 Member State interests and EU law: a conclusion
• Index