Between Compliance and Particularism: Member State Interests and European Union Law

347 Pages·2019·3.919 MB·English

by  Marton Varju

Marton Varju Editor
Between
Compliance
and
Particularism
Member State Interests and European
Union Law
Between Compliance and Particularism
Marton Varju
Editor
Between Compliance
and Particularism
Member State Interests and European
Union Law
Editor
Marton Varju
Center for Social Sciences
Hungarian Academy of Sciences
Budapest, Hungary
ISBN 978-3-030-05781-7 ISBN 978-3-030-05782-4 (eBook)
https://doi.org/10.1007/978-3-030-05782-4
Library of Congress Control Number: 2019930406
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Preface
This book presents a collection of the outputs produced by a research group set up
under the Lendület Programme of the Hungarian Academy of Sciences and its inter-
national network of researchers. The research group received funding to carry out a
comprehensive legal analysis of the opportunities and constraints affecting policy-
making in Hungary—as a Member State—in the European Union. One of our cen-
tral strands of research focused on the “national interest”—the interests of the
Member States—as a conceptual frame and an analytical tool for investigating the
legal obligations imposed on the Member States in the Union, in the dynamic
decision-m aking phase as well as in the course of their application and enforcement
in the national territory. The context was unfolding before our eyes in the course of
our work; the socio-economic transformation implemented in Hungary at the turn
of the first decade of the twenty-first century brought with itself a change both in the
“Europe politics” of the country and in the attitude of the government towards EU
obligations and their impact on national policymaking and governance. Pursuing
and protecting the “national interest”, the exact meaning of which was left unde-
fined, gained absolute priority in EU–Hungary relations—most obviously in the
political rhetoric, and there emerged a clear tendency in a number of policy areas to
favour domestic initiative and action over doubts about their compatibility with the
constraints following from EU law.
From very early on, our research, which used legal as well as social science
methodology, revealed that State administration in Hungary, while it was engaged
and involved in the EU political process and was acutely aware of the limitations of
its activities as laid down in EU law, defined its role and understood its responsibil-
ity in the context of it being the central actor in governance in a sovereign State led
by a government having indisputable political authorisation to act. The “national
interest” was introduced as a central point of reference for government and admin-
istration in domestic as well as in European policy domains. The “national position”
in EU decision-making was identified as representing the selfish interests of the
State as emerging from the national political process and from inter-State haggling
at the European level. EU obligations were quite often regarded as “irritants” capa-
ble of undermining the coherence, the moral underpinnings or the desired
v
vi Preface
effectiveness of national policymaking and unjustifiably delimiting national policy
discretion. The interests and needs requiring a response from government were pre-
dominantly interpreted within the territorial confines of the local polity. There was
also critical evidence of the State and its administration intensively contesting the
necessity and the appropriateness of EU action to problems aspects of which were
experienced locally and, in parallel, promoting its territorially confined responses
which were regarded as more effective and having a higher quality of legitimacy.
The local benefits of EU integration were precisely kept count of indicating an
approach that EU membership was valued primarily for the positive local impacts it
was expected to deliver.
Working with Member State interests as an analytical tool was often a frustrating
and difficult process in both theoretical/conceptual and empirical legal research.
While its relevance was evident and its use in legal research was extremely promis-
ing, its contradictory interpretations, multifaceted meanings, uncertain boundaries,
questionable normative value and its general “fuzziness” seemed to prevent the
delivery of accurate and definitive results expected from legal scholarship. Its use as
a frame for analysis produced a number of “insights”, offered an intriguing perspec-
tive and raised several paradoxes, the analytical value of which in legal research was
found problematic. As another major difficulty encountered, the doctrinal frame-
work developed to secure the normativity of EU obligations in the context of their
application and enforcement at the national level proved to be largely impenetrable.
While EU decision-making and its outputs—the framework of the Treaties’ obliga-
tions and individual pieces of EU legislation—yielded rather easily to our analysis,
the principles governing the implementation of EU legal rules in the Member States,
which explicitly exclude unsanctioned unilateral departures in the national interest
from the obligations regulated, at a general level resisted scrutiny. Having experi-
enced these difficulties, we decided to frame our legal analysis as investigating in a
broad range of general and particular legal domains what could be called as the
interplay between State interests and EU legal obligations. The legal-conceptual
boundaries of this analytical frame were found in the concepts of Member State
particularism—a fundamental condition of EU integration, and the equally funda-
mental legal and political demand of Member State compliance.
The contributions in this volume were thus prepared under a relatively broad,
nonetheless conceptually consistent framework of analysis, which offered the ben-
efit of securing freedom to our experts to develop novel approaches and perspectives
in their scrutiny. It also enabled bringing together rather different issues and policy
areas within EU integration, all of which are impacted by or are capable of reflect-
ing on the indisputable relevance of Member State interests for the development and
the implementation of EU obligations. The separate treatment of the decision-
making and the normative dimensions of EU law, the former referring to the politi-
cal process(es) for the adoption of EU legal rules and the latter to the domain of the
application and the enforcement of those prior adopted legal obligations, was one of
our central common reference points. As another point of reference, our authors
were urged to consider and assess, in our understanding, the evident overlap between
the local interests brought by national governments to the EU political arena and the
Preface vii
legal rules introduced there with a view to realise those interests, which have by
then been transformed into common policy objectives shared by the Member States.
Furthermore, as a consequence of recognising this overlap, the different contribu-
tions were requested to avoid—where possible—the strict dialectical positioning of
Member State interests and EU obligations. Authors were suggested to explore their
complementarities as well as the mutual dependencies between the obligations
imposed under the EU policy framework and Member State policies driven by inter-
ests competing or conflicting with the relevant EU objectives.
The chapters in this book are the result of a long-term research cooperation coor-
dinated by the Hungarian Academy of Sciences. They benefited greatly from panel
discussions and numerous individual presentations at UACES conferences and
other international and domestic conferences and workshops, including those
organised by the Lendület-HPOPS Research Group. The visiting fellowships
offered by our research group made intensive collaborative research between our
members and our international partners possible. The editor is greatly indebted to
the members of our advisory committee—Marie-Pierre Granger, György Hajnal,
Miklós Király and Ernő Várnay—for their advice and support. He is specifically
grateful to the senior civil servants in Hungary who made themselves available for
interviews and discussions and to academic colleagues who participated in the
expert workshops organised to present the outputs of our project.
Budapest, Hungary Marton Varju
Contents
Between Compliance and Particularism . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Marton Varju and Veronika Czina
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 History, Politics and the Law: The Background . . . . . . . . . . . . . . . . . . . . 4
3 Between Compliance and Particularism: The Analytical Frame . . . . . . . . 8
4 The Structure of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In Search of Limits for the Protection of National Identities
as a Member State Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Darinka Piqani
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2 The Emergence of Respect for National Constitutional Identity
in the European Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.1 C ommon Interests and Protection of Member States Interests
in the Early Stages of Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.2 C odification of the Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3 Limits to Protection of National Identity in European Union Law . . . . . . 27
3.1 N ational Constitutional Identity and the Court of Justice’s
Triptych of Effectiveness, Uniformity and Autonomy of the EU
Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 T he Principle of Proportionality as a Limit to National
Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.3 N ational Constitutional Identity and (Common) Liberal Values . . . 41
4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
EU Loyalty and the Protection of Member States’ National Interests . . . 49
Federico Casolari
1 Introductory Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ix
x Contents
2 The Protection of Member States’ National Interests in an “Ever Closer
Union”: The General Paradigm of the Interplay Between Loyalty,
EU Integration and National Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2.1 T he Protection of National Interests in the Decision-M aking
Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2.2 E xceptions, Derogations and Loyalty . . . . . . . . . . . . . . . . . . . . . . . . 61
2.3 D ifferentiated Integration and Loyalty . . . . . . . . . . . . . . . . . . . . . . . 63
3 Loyalty, Solidarity and Member States’ National Interests in Times
of Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
3.1 T he Interplay Between Loyalty and Solidarity in the European
Union’s Regular Institutional Life . . . . . . . . . . . . . . . . . . . . . . . . . . 66
3.2 L oyalty and Solidarity in Times of Crisis . . . . . . . . . . . . . . . . . . . . . 68
4 Acceding to (and Leaving) the Union and Protecting National Interests:
Is Loyalty (Still) Relevant? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
EU Post-crisis Economic and Financial Market Regulation . . . . . . . . . . . 79
Pieter Van Cleynenbreugel
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
2 “More Europe” at the Expense of Member States’ Interests? . . . . . . . . . . 81
2.1 S tage One: A Common Rulebook for Financial Services
Harmonising National Frameworks . . . . . . . . . . . . . . . . . . . . . . . . . 81
2.2 S tage Two: Budgetary Stability Obligations and Emergency
Rescue Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
2.3 S tage Three: Single Supervisory and Resolution Mechanisms . . . . 86
3 Member States’ Interests in an Upgraded Institutional Framework . . . . . 88
3.1 G uaranteeing Member States’ Interest by Means of Institutional
Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
3.2 S treamlined Conflict Resolution Methods . . . . . . . . . . . . . . . . . . . . 92
3.3 P rotecting Member States’ Interests by Means of Administrative
Embedding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
4 Challenges and Frictions Resulting from the Embedding of Member
States’ Interests in the EU Financial Governance Framework . . . . . . . . . 96
4.1 S acrificing Substance for the Sake of Procedure? . . . . . . . . . . . . . . 96
4.2 A dditional (Soft) Legal Instruments as Intermediate Solutions . . . . 98
5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Member State Interests and EU Internal Market Law . . . . . . . . . . . . . . . 103
Mónika Papp
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
2 Member State Interests and the Internal Market . . . . . . . . . . . . . . . . . . . . 106
3 Derogations from the Fundamental Freedoms and the Role of the Court
of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
3.1 T he Scope of the Fundamental Freedoms . . . . . . . . . . . . . . . . . . . . 107
Contents xi
3.2 Member State Justifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
3.3 T he Effects of the Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
3.4 M ainstreaming Non-economic Values and Norms . . . . . . . . . . . . . . 118
4 Imbalances Between the Market and the Social Sphere . . . . . . . . . . . . . . 119
5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Member State Interests in EU State Aid Law and Policy . . . . . . . . . . . . . 129
Francesco de Cecco
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
2 State Aid and the Revival of Industrial Policy . . . . . . . . . . . . . . . . . . . . . . 130
3 The Purpose and Justification of State Aid Control in the EU . . . . . . . . . . 131
4 The Notion of State Aid and Its Impact on National Policy Autonomy . . 133
5 The Commission’s Role in Influencing the Design of National
Industrial Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
5.1 The GBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
5.2 T he Case of Research, Development and Innovation . . . . . . . . . . . . 140
6 National Interests in EU State Aid Law and Policy . . . . . . . . . . . . . . . . . . 142
7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Member States’ Interest in the Enforcement of EU Competition Law . . . 147
Or Brook and Katalin J. Cseres
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
2 The Transformation of EU Competition Law Enforcement and Its
Impact on the Uniform Enforcement of Article 101 TFEU . . . . . . . . . . . . 149
2.1 T he Centralised Enforcement System of Regulation 17/62 . . . . . . . 149
2.2 T he Decentralised Enforcement System of Regulation 1/2003 . . . . 150
2.3 H ard and Soft Law Rules to Address the Risk
of Re-Nationalisation Under Regulation 1/2003 . . . . . . . . . . . . . . . 151
3 Leeway in EU Law for Incorporating National Interests in the
Enforcement of Article 101 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
3.1 L eeway for National Interests Under National Legal Provisions . . . 154
3.2 L eeway for National Interests Through National Application
of Article 101 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Against the Grain? Member State Interests and EU Procurement Law . . . 171
Albert Sanchez-Graells
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
2 Competition-Oriented Public Procurement and the Diversity of National
Economic Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
3 EU Public Procurement and Member States’ Protectionist Interests . . . . . 178
3.1 P rotectionist Interests as “Anti-Internal Market” National
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179