Differentiated Integration or Uniform Regime? National Derogations from EU Internal Market Measures

Abstract

The EU has most frequently resorted to harmonisation as a model to achieve its in-ternal market. This contribution examines the dynamics of legal differentiation in EU’s internal market law laid down in Article 114 TFEU and secondary laws. It con-cludes that there has been a modest number of invocations of the derogation possibili-ties under Article 114 (4) and (5) TFEU and the safeguard clauses. The low number may be due to the fact that may both the Commission and the Courts have a very rig-id reading of the procedure whilst the grounds for invocation are very limited. This low number nevertheless does not automatically imply that Member States agree with the level of protection laid down in the EU’s harmonisation measures or that the opt out mechanisms are not relevant. Derogation mechanisms may play an important role in the negotiations of the level of protection in the draft legislative acts. This study moreover reveals that the derogation mechanisms may be important devices of regulatory adjustment and learning in the fields of public health and environmental protection in the EU. They ultimately may rather strengthen the uniformity of regula-tory requirements in the EU internal market instead of leading to regulatory diversity.

Keywords: EU law; differentiation; harmonisation; opt out; safeguard clauses; Article 114 TFEU