Bullettin n. 1/2011
June 2011
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Fois Paolo
    Applicazione differenziata e flessibilità nel diritto dell'Unione europea
    in Studi sull'integrazione europea , Anno VI, n. 1, gennaio-aprile ,  2011 ,  25-40
    The essay focuses on the study of the concept of “separate application” of EU law, which has received so far very limited attention by the doctrine. There is indeed a widespread tendency to dwell mainly on the enhanced cooperation (now provided for, after the Lisbon reform, in Article 20 TEU and Articles 326-334 TFEU), and to formulate some criteria of differentiation with reference to the “separate application” which do not appear entirely convincing. Other contributions include in the “differentiated integration” concept both the enhanced cooperation and the “separate application”. In this study it is instead claimed the existence of precise criteria of differentiation, such as to exclude that the “separate application”, which continues to recur with particular frequency in the formulation of European Union law, may be confused with the enhanced cooperation (that is, governed by these articles of the Treaty and TFEU). In contrast to this cooperation, indeed, in the “separate application” the element of the authorization is entirely absent, given by a decision adopted by the Council also by a majority (see, for enhanced cooperation, Articles 20 TEU and 329 TFEU). In fact, in the “separate application”, the rules applicable to all the Member States and the exemptions in respect of one or more of the same shall be decided with the consent of all Parties to the Treaty. It is also the element of consent that allows us to capture the kind of flexibility of EU law related to the mechanism of “differentiated application”. The same Member States, in defining the rules of law contained in the primary treatment or in the Additional Protocols, determine whether and when these rules will receive a “differentiated application”. Only in enhanced cooperation, ultimately, the limit laid down in Article 326 TFEU could apply, stating that those actions “respect the Treaties and the Union law”.
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