Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-26T09:19:48.605Z Has data issue: false hasContentIssue false
  • English
  • Français

Devolution and differentiation: regional variation in EU law

Published online by Cambridge University Press:  02 January 2018

Jo Hunt
Jo Hunt*
Affiliation:
Cardiff Law School
Get access Rights & Permissions [Opens in a new window]

Abstract

For some years now, there has been a growing orthodoxy in EU legal studies which maintains that the EU project is less about achieving uniformity of laws across the Member States, and more about managing flexibility and differentiation. However, for the most part, space for differentiation is recognised only as between states or groups of states. The present paper moves beyond this level to explore the scope for local differentiation, at a sub-state level. This inquiry has been motivated by the recent Horvath judgment, in which the European Court of Justice was asked whether differential implementation by the devolved administrations of the UK of certain EU law obligations was lawful. The paper places these developments alongside other judicial, legal and political developments, to demonstrate a growing recognition of the role of regions within the EU's multi-levelled system of governance, revealing that the EU order is, in some respects, finally catching up with the realities of the rise of devolution and decentralisation taking place across Europe. However, it is submitted that there is further the EU could and should go in recognising, if not a ‘Europe of the Regions’, then a ‘Europe with the Regions’.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 3 , September 2010 , pp. 421 - 441
Copyright
Copyright © Society of Legal Scholars 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Himsworth, Cmg Devolution and its jurisdictional assymetries’ (2007) 70 Modern Law Review 31 at 31.CrossRefGoogle Scholar

2. AG Sharpston, Opinion in C-212/06, Government of the French Community and Walloon Government v Flemish Government[2008] ECR I-1683 at para 118.

3. For a general introduction and assessment of the ‘Better Regulation’ agendas being pursued at UK, EU and international levels, see R Baldwin ‘Is better regulation smarter regulation?’[2005] Public Law 485; and for official texts relating to the EU's pursuit of ‘Better Regulation’, see, eg, the 2001 Mandelkern Group Report on Better Regulation (November 2001); the European Commission's 2001 White Paper on European Governance COM(2001) 428 final; the Commission Communication (COM(2002) 275 final) and Interinstitutional Agreement [2003] OJ C 321/1 on Better Lawmaking and the Commission Communication Better Regulation for Growth and Jobs in the EU COM(2005) 97 final and, generally, the European Commission's Better Regulation website, available at http://ec.europa.eu/governance/better_regulation/index_en.htm.

4. Ibid, p 68.

5. CETS No 122.

6. Including the UK in 1998 and, most recently, France in 2006.

7. Article 4(3).

8. Above n 3.

9. COM(2001) 428 final at 12.

10. COM(2001) 428 final at 4.

11. The value of local government was defined in the Widdicombe committee report as being seen in its contribution to pluralism, its engendering of participation and its responsiveness: The Conduct of Local Authority Business Cmnd 9797, 1986. See further Bailey, S and Elliott, M Taking local government seriously: democracy, autonomy and the constitution’ (2009) 68 Cambridge Law Journal 436.CrossRefGoogle Scholar

12. See, eg, Tuytschaever, F Differentiation in European Union Law (Oxford: Hart, 1999)Google Scholar; De Witte, B, Hanf, D and Vos, E The Many Faces of Differentiation in EU Law (Antwerp: Intesentia, 2001)Google Scholar; De Burca, G and Scott, J (eds) Constitutional Change in the EU: From Uniformity to Flexibility (Oxford: Hart, 2002)Google Scholar; Dougan, M National Remedies Before the European Court of Justice: Issues of Harmonization and Differentiation (Oxford: Hart, 2004).Google Scholar

13. Case C-428/07 R (Horvath) v Secretary of State for Environment, Food and Rural Affairs (unreported) 16 July 2009.

14. C Jeffery Regions and the EU: Letting Them In and Leaving Them Alone Federal Trust Online Paper XX/04 (2004), available at http://www.fedtrust.co.uk/uploads/constitution/14_04.pdf.

15. See further Scott, J Member states and regions in community law: convergence and divergence’ in Beaumont, P, Lyons, C and Walker, N (eds) Convergence and Divergence in European Public Law (Oxford: Hart, 2002).Google Scholar

16. See further Loughlin, J “Europe of the regions” and the federalization of Europe’ (1996) 26 Publius: The Journal of Federalism 141;CrossRefGoogle Scholar Keating, M The New Regionalism in Western Europe (Cheltenham: Edward Elgar, 1998).Google Scholar

17. The regional subdivision of states along geographical lines according to NUTS (Nomenclature of Territorial Units for Statistics) is not used to define the region in this paper. These NUTS units, used in the mechanisms for the delivery of the EU's Structural Funds, are not always conterminous with administrative districts. For more on the NUTS, see the eurostat website, available at http://ec.europa.eu/eurostat/ramon/nuts/basicnuts_regions_en.html.

18. For an overview of the regional and local governance structures across Europe (not only the Member States of the EU), see Assembly of European Regions AER Regionalism Report (2006), available at http://www.aer.eu/en/main-issues/regional-democracy/aer-regionalism-report.html.

19. Börzel, T States and Regions in the European Union: Institutional Adaptation in Germany and Spain (Cambridge: Cambridge University Press, 2002) p 2.Google Scholar

20. Elias, A Introduction: whatever happened to the Europe of the regions? Revisiting the regional dimension of European politics’ (2008) 18 Regional and Federal Studies 483 at 485.CrossRefGoogle Scholar

21. As with the submission ‘Europe and the Regions’ made to the Convention by Peter Hain, ‘on behalf of the UK Government and the devolved administrations in Scotland and Wales’ CONV 526/03.

22. Including the Committee of the Regions and the European Parliament. From the latter, Neil MacCormick sought to promote a particularly strong line on the position of the regions; see the account in N MacCormick ‘The European Constitutional Convention and the stateless nations’ (2004) 18 International Relations 331.

23. See, eg, the RegLeg Florence Declaration of 15–16 November 2002, calling for special status for regions with legislative powers within the EU legislative process, available at http://www.regleg.eu.

24. First Conference of Presidents of Regions with Legislative Powers, Final Declaration, Barcelona, November 2000, available at http://www.regleg.eu.

25. Entered into force 1 December 2009.

26. Emphasis added.

27. Emphasis added.

28. Former EC Treaty, Art 5.

29. Former EC Treaty, Art 203.

30. Former EC Treaty, Art 263.

31. Former EC Treaty, Art 265.

32. The use of this term is traced from its early usage in 1970s in J Loughlin, above n 16.

33. John, P The Europeanisation of sub-national governance’ (2000) 37 Urban Studies 877 at 882.CrossRefGoogle Scholar

34. There is now an enormous literature on multi-level governance, with a starting point in the work of Marks, G ‘Structural policy in the European Community’ in Sbragia, A (ed) Euro-Politics: Institutions and Policy Making in the ‘New’ European Community (Washington DC: The Brookings Institute, 1992);Google Scholarsee also Marks, G, Hooghe, L and Blank, K ‘European integration since the 1980s: state centric versus multi-level governance’ (1996) 34 Journal of Common Market Studies 341;CrossRefGoogle Scholar Hooghe, L and Marks, G Multi-Level Governance and European Integration (Oxford: Rowman & Littlefield, 2001)Google Scholar; Bache, I and Flinders, M (eds) Multi-Level Governance (Oxford: Oxford University Press, 2004).CrossRefGoogle Scholar

35. Jeffery, C (ed) The Regional Dimension of the European Union: Towards a Third Level in Europe? (London: Routledge, 1997).Google Scholar

36. See, in particular, Marks, above n 34; Hooghe and Marks, above n 34.

37. See, eg, Majone, G The rise of the regulatory state in Europe’ (1994) 17 West European Politics 77.CrossRefGoogle Scholar

38. And, indeed, may well have been overstated here, as acknowledged by, inter alia, Hooghe and Marks, above n 34; Keating, M, ‘A quarter century of the Europe of the regions’ (2008) 18 Regional and Federal Studies 629.CrossRefGoogle Scholar

39. See, eg, Jeffery, C Sub-national mobilisation and European integration: does it make any difference?’ (2000) 38 Journal of Common Market Studies 1;CrossRefGoogle Scholar Bulmer, S et al British Devolution and European Policy-Making: Transforming Britain into Multi-Level Governance (Basingstoke: Palgrave, 2002)CrossRefGoogle Scholar; Palmer, R Devolution, Asymmetry and Europe: Multi-Level Governance in the United Kingdom (Brussels: Peter Lang/PIE, 2008).CrossRefGoogle Scholar

40. See, eg, Case T-214/95 Vlaams Gewest v Commission[1998] ECR II-717; Case T-288/97 Regione autonoma Friuli-Venezia Giulia[1999] ECR II-1871, and see further Nuffel, P What's in a Member State? Central and decentralized authorities before the Community courts’ (2001) 38 Common Market Law Review 871;CrossRefGoogle ScholarA Evans ‘Regional dimensions to European governance’ (2003) International and Comparative Law Quarterly 21 at 33.

41. Treaty on the Functioning of the European Union, Art 263.

42. Joining this list are now the European Council and the European Central Bank.

43. For recent assessments of the Committee of the Regions, see T Christiansen and P Lintner ‘The Committee of the Regions after ten years: lessons from the past and challenges for the future (2005) 1 EIPASCOPE 7-1 and Domorenok, E The Committee of the Regions: in search of identity’ (2009) 19 Regional and Federal Studies 143.CrossRefGoogle Scholar

44. Jeffery, C Devolution and the European Union: trajectories and futures’ in Trench, A (ed) The Dynamics of Devolution: The State of the Nations 2005 (London: Imprint Academic, 2006) pp 181–182.Google Scholar

45. Ibid.

46. This is one of four concordats which supplements the memorandum of understanding between the UK government and the devolved executives, 2001, CM 5240.

47. Concordat on Coordination of EU Policy Issues, Common Annex B4, B4.12 and B4.14.

48. Jeffery, above n 44, p 186. See also Jeffery, C and Palmer, R The European Union, devolution and power’ in Trench, A (ed) Devolution and Power in the UK (Manchester: Manchester University Press, 2007).Google Scholar

49. See, eg, Berglund, S, Gange, I and Van Waarden, F ‘Mass production of law. Routinization in the transposition of European directives: a sociological-institutionalist account’ (2006) 13 Journal of European Public Policy 692;CrossRefGoogle ScholarU Sverdrup Implementation and European Integration: A Review Essay ARENA Working Paper 25/2005, available at http://www.arena.uio.no; Dimitrakopoulos, D ‘The transposition of Eu law: “post-decisional politics” and institutional autonomy’ (2001) 7 European Law Journal 442.CrossRefGoogle Scholar

50. Committee of the Regions White Paper on Multilevel Governance, June 2009, p 4; Christiansen and intner, above n 43.

51. G de Burca ‘Legal principles as an instrument of differentiation?’ in de Witte et al, above n 12, p 141.

52. European Communities Act 1972, Sch 2.

53. Cmn 5420 at para 20. The memorandum is, in turn, supplement by concordats, most significantly here, the Concordat on Coordination of EU Policy Issues, Common Annex B4.

54. C Carter The Formulation of UK-EU Policy Post-Devolution: A Transformative Model of Governance? Manchester Papers in Politics MPP 9/2002, 1, available at http://www.socialsciences.manchester.ac.uk/disciplines/politics/publications/workingpapers/documents/manchester_working_papers/MPP092002.pdf.

55. Less, of course, for Northern Ireland following the period of suspension of devolved government from 2002 to 2007.

56. A Ross and H Nash ‘European Union environmental law – who legislates for whom in a devolved Great Britain’ (2009) Public Law 564.

57. Ross and Nash, ibid, reviewed the implementation in the UK of a set of environmental law Directives over the first seven years of devolution, and found Scotland implemented the Directives itself in 59.4% of cases, whilst Wales did so in only 15.6% of cases.

58. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, [2000] OJ L327/1.

59. Water Environment and Water Services (Scotland) Act 2003, s 3(9); cf Water Environment (Water Framework Directive) (England and Wales) Regulations2003, SI 2003/3242.

60. Transposition Guide: How to Implement European Directives Effectively (2007) para 1.5.

61. Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, [2001] OJ L197/30.

62. Environmental Assessment (Scotland) Act 2005.

63. Ross and Nash above n 56, at 585.

64. Jenkins, V Environmental law in Wales’ (2005) 17 Journal of Environmental Law 207.CrossRefGoogle Scholar

65. Council Directive 91/676/EC on the protection of waters against pollution caused by nitrates from agricultural sources, [1991] OJ L375/1.

66. V Jenkins, above n 64, at 219.

67. Council Directive 1999/31/EC, [1999] OJ L182/1.

68. Emphasis added.

69. Under the primary legislation, Waste and Emissions Trading (WET) Act 2003.

70. Landfill Allowance Scheme (Scotland) Regulations 2005, SSI 2005/157.

71. Landfill Allowances Scheme (Wales) Regulations 2004, SI 2004/1490, adopted under the WET Act 2003.

72. Welsh Assembly Government Consultation on Proposals for Managing the Co-existence of GM, Conventional and Organic Crops in Wales 30 June 2009, pp 1 and 41.

73. Directive 2001/18/EC [2001] OJ L106/1. On the implementation of this Directive across the EU, see Bodiguel, M et al Coexistence of genetically modified and non- genetically modified crops: national implementation in Europe’ in Bodiguel, M and Cardwell, M (eds) The Regulation of Genetically Modified Organisms: Comparative Approaches (Oxford: Oxford University Press, 2010).CrossRefGoogle Scholar

74. Directive 2004/35/EC, [2004] OJ L143/56.

75. Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009, SI 2009/995 (W 81).

76. Above n 72.

77. Concordat on Coordination of EU Policy Issues, Common Annex B4.17.

78. European and External Relations Committee Report, Scottish Parliament Report on an Inquiry into the Transposition of EU Directives SP Paper 89, 2008 [110].

79. Ross and Nash, above n 56, at 590.

80. Though see the concern displayed by the judiciary in the cases in McParland (2002) NICA 222 (concerning different rules in England and Northern Ireland implementing rules on road licensing) and Abna v Scottish Ministers[2004] SLT 176 (concerning challenges to the legality of the English and Scottish implementing regulations in the field of animal foodstuffs).

81. Constitution Select Committee, Second Report, HL (2002–2003), ch 6, Devolution and the European Union, para 182.

82. Ibid, para 183.

83. R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs[2006] EWHC 1833 (Admin).

84. [2007] EWCA Civ 620, [2007] NPC 83.

85. Above n 13.

86. [2003] OJ L270/1.

87. Case 227/85 Commission v Belgium[1988] ECR 1; Case 239/85 Commission v Belgium[1986] ECR 3645.

88. Case C-103/01 Commission v Germany (Fire Safety Equipment)[2003] ECR I-5269.

89. Directive 89/686/EC, [1989] OJ L399/18.

90. Reported at para 35 of Advocate-General Trstenjak's Opinion, Horvath 3 February 2009.

91. At para 50.

92. At para 57.

93. At para 55.

94. Above n 22, at 334.

95. Bourne, A The impact of European integration on regional power’ (2003) 41 Journal of Common Market Studies 597;CrossRefGoogle Scholar Fleurke, F and Willemse, R The Eu and the autonomy of sub-national authorities: towards an analysis of constraints and opportunities in sub-national decision making (2006) 16 Regional and Federal Studies 83.CrossRefGoogle Scholar

96. Case 77/69 Commission v Belgium[1970] ECR 237 established the principle that the central state is responsible in law for the acts and omissions of its ‘constitutionally independent institutions’.

97. Above n 46, para 20.

98. Case C-2/90 Commission v Belgium[1992] ECR I-4431.

99. Cases C-28/01 and 20/01 Commission v Germany[2003] ECR 3609; see further the discussion in C Hilson ‘Going local? EU law, localism and climate change’ (2008) European Law Review 194, for a reconsideration of this case-law.

100. See, eg, Kritikos, M Traditional risk analysis and releases of Gmos into the European Union: space for non-scientific factors?’ (2009) 34 European Law Review 405;Google Scholar Lee, M The governance of co-existence between Gmos and other forms of agriculture: a purely economic issue? (2008) 20 Journal of Environmental Law 193.CrossRefGoogle Scholar

101. Article 23.

102. Charter of the regions and local authorities of Europe on the subject of coexistence of genetically modified crops with traditional and organic farming signed in Florence on 4 February 2005, available at http://www.gmo-free-regions.org/.

103. COM(2009) 153 final, at 8.

104. An attempt by the legislative region of Upper Austria to render itself a GM-free zone through the use (by the Austrian State, on its behalf) of the derogation clause in Art 95(5) of the EC Treaty failed before the Court of First Instance and the European Court of Justice in C-439/05P and C-454/05P Land Oberösterreich and Republic of Austria v Commission[2007] ECR II-7141.

105. Case C-212/06 Government of the French Community and Walloon Government v Flemish Government[2008] ECR II-1683.

106. C Dautricourt and S Thomas ‘Reverse discrimination and free movement of persons under Community law: all for Ulysses, nothing for Penelope?’ (2009) 34 European Law Review 433.

107. Vandamme, T Case Note’ (2009) 46 Common Market Law Review 287 at 391.Google Scholar

108. Former Art 87 et seq of the EC Treaty, now Art 107 et seq of the Treaty for European Union.

109. Case C-88/03 Commission v Portugal[2006] ECR I-7115.

110. Joined Cases C-428/06–434/06 UGT-Rioja and Autonomous Community of Rioja[2008] ECR I-6747; see for discussion Greaves, R Autonomous regions, taxation and Eu state-aid rules’ (2009) 34 European Law Review 779.Google Scholar

111. See, eg, the Advocate-General's opinion in the Horvath case.

112. At para 107.

113. Speech of 10 February 2010, available at http://www.cor.europa.eu.

114. See for an early use of this term, Hooghe, L and Marks, G “Europe with the Regions”: channels of regional representation in the European Union’ (1996) 21 Publius: The Journal of Federalism 73.CrossRefGoogle Scholar