De Witte, Bruno --- "Variable geometry and differentiation as structural features of the EU legal order" [2017] ELECD 388; in De Witte, Bruno; Ott, Andrea; Vos, Ellen (eds), "Between Flexibility and Disintegration" (Edward Elgar Publishing, 2017) 9

Book Title: Between Flexibility and Disintegration

Editor(s): De Witte, Bruno; Ott, Andrea; Vos, Ellen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783475889

Section: Chapter 1

Section Title: Variable geometry and differentiation as structural features of the EU legal order

Author(s): De Witte, Bruno

Number of pages: 19

Abstract/Description:

Until the adoption of the Treaty of Maastricht, there was a growing sense of the unity of a single integrated Community legal order, despite the existence of three different Communities. That unitary legal order was also uniformly applicable to all the Member States, except for some limited derogations provided by primary or secondary law, which exempted single countries from specific rules of Community law. The Court of Justice set great store on this uniform application. For example, in a judgment of 1972, it held that: [T]he attainment of the objectives of the Community requires that the rules of Community law (…) are fully applicable at the same time and with identical effects over the whole territory of the Community without the Member States being able to place any obstacles in the way. This ambition of uniform application was backed by the duty for national courts to apply directly effective EC law and by the infringement actions the Commission could launch against non-complying Member States. However, there were also inherent limits to this aspiration of uniform application. The main limit was, and is, that EU law is applied most of the time by national authorities and courts that do not actually apply EU law faithfully and correctly on many occasions. But there was another limit, inherent in Community law itself; namely the fact that there were forms of European law and policy that contained an inherent permission for differential application.