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

42 Pages Posted: 30 Sep 2016

See all articles by E. Vos

E. Vos

University of Maastricht - Faculty of Law

Maria Weimer

Amsterdam Centre for European Law and Governance, University of Amsterdam

Date Written: September 30, 2016

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

Suggested Citation

Vos, Ellen and Weimer, Maria, Differentiated Integration or Uniform Regime? National Derogations from EU Internal Market Measures (September 30, 2016). Maastricht Faculty of Law Working Paper No. 2016/3. Available at SSRN: https://ssrn.com/abstract=2845819 or http://dx.doi.org/10.2139/ssrn.2845819

Ellen Vos (Contact Author)

University of Maastricht - Faculty of Law ( email )

PO Box 616
Maastricht, 6200 MD
Netherlands

Maria Weimer

Amsterdam Centre for European Law and Governance, University of Amsterdam ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

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