With the stalling of the “semi-permanent” revision process of EU constitutional law after the entry into force of the Lisbon Treaty, different types of differentiated integration came to the fore as potentially flexible means to unlock unanimity requirements and enable further integration. At first glance, the growing number of enhanced cooperation, both ordinary and atypical, the establishment of a Banking Union, and the repeated recourse to satellite treaties seems to confirm that potential. However, a closer look reveals a much more complex picture, in which not only the legal rigidities of unanimity requirements in light of highly divided policy preferences should be taken into account, but also the specific features of each type of differentiated integration, its basis within or beyond the EU legal order, or even gesture politics. This paper aims to identify these factors and reveal the potential function of differentiated integration as a constitutional workaround.
Since the Maastricht Treaty, differentiated integration has been regulated in EU primary law. Despite the increase of differentiation tools through Treaty revisions, instances of “atypical” differentiation, i.e. differentiated integration beyond the primary law framework, have emerged in recent practice. On the one hand, most cases of differentiation through partial agreements can be categorized as atypical. On the other, atypical differentiation has also been achieved through secondary EU law, the most prominent case being the banking union. Focusing on the latter type of atypical differentiation, the paper sheds light on what this trend may add to our understanding of differentiated integration. First, atypical differentiation may call into question scholarly efforts to categorize the phenomenon of differentiation. Secondly, and more importantly, if this practice were to be generalized, would enhanced cooperation, with its substantive and procedural constraints, still be needed?
The idea of establishing a Core Europe emerged as the membership of the EU grew beyond the original group of six member states. Its first prominent expression was the Schāuble-Lamers paper of 1994, envisaging the creation of a Kerneuropa of five or six states. It was reinvigorated at regular intervals ever since. These ideas were usually not accompanied by concrete institutional designs. It is unclear whether the euro area countries (or any subgroup within the euro area) have sufficiently homogenous policy preferences to justify the creation of a Core Europe. Yet, this idea keeps emerging in the discussions on the future of Europe. The paper describes this political trajectory and focuses on the legal feasibility of moving towards some form of Core Europe. It argues that the enhanced cooperation mechanism is not a suitable tool for its creation, but that the conclusion of international agreements might serve for the formation of a core Europe with a modest range of policy goals.