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Repeated policy failures suggest that the system created by the European treaties is more suitable to the promotion of negative integration than to the development of measures of positive integration. Positive integration is often identified with positive values like social protection and the correction of market failures, negative integration with deregulation, social dumping, and the protection of economic interests. In fact, economic and other special interests may find it convenient to support measures of positive integration, while fundamental rights are often better protected by negative integration. At any rate, in an increasingly diverse EU it may be necessary to revert to a negative-integration regime, under which most regulatory responsibilities would be left with the people who are directly affected by a given problem, and who have to bear the costs of its solution.

This chapter reconstructs developments of EC law (including case law) relating to social protection, and traces the differential impact that free movement and competition rules have had on the various functional schemes and tiers or pillars of provision within national welfare states. It also identifies and illustrates the new strategies of spatial politics prompted by the boundary redefinitions operated by the EU, focussing on pensions (including pension funds), health care, and social assistance. Special attention is devoted to the position of third country nationals.

This chapter examines ‘negative integration’ within the European Community and its unique effectiveness in dismantling the post-war controls of national governments over their own economic boundaries. Through the ‘constitutionalisation’ of competition law, the European Commission and the European Court of Justice have greatly reduced the capacity of democratic politics at the national level to impose market-correcting regulations on increasingly mobile capital and on economic interactions. As a result, national polities find themselves under conditions of a ‘competition among regulatory systems’ that may prevent all of them from maintaining market-correcting policies that were previously supported by democratic majorities. At the same time, however, policies of ‘positive integration’, which would reconstruct a capacity for market-correcting regulations at the European level, continue to depend on near-unanimity among national governments in the Council of Ministers, and are thus easily blocked by conflicts of interests among these governments.

The EU began its environmental policy in the early 1970s, long before its legal base was introduced into the Treaty in 1987. Unanimous decision-making and the consultation procedure applied until 1987, only gradually substituted by qualified majority voting and the co-decision procedure. The level of conflict over environmental proposals was often high among member states and in the supranational institutions. Nevertheless, more than 500 legislative acts had been adopted by 2008. These were not only concerned with the creation of the internal market (negative integration) but often established ambitious goals to overcome environmental problems and correct market failures (positive integration). The chapter demonstrates how member states and supranational institutions succeeded in escaping the joint-decision trap through the effective employment of techniques for avoiding deadlock.

This chapter argues that, in Europe, there are unexploited opportunities for increasing the problem-solving capacity of the multi-level polity. It shows that the Amsterdam commitment to coordinated employment strategies may have greater potential than is generally assumed, especially when it is seen in conjunction with simultaneous changes in the practices of negative integration. These changes suggest that the European Commission as well as the European Court of Justice are now tending towards a ‘balancing’ approach that gives greater weight to policy goals other than the maximisation of free competition. On the other hand, the Amsterdam Summit failed to exploit the considerable potential of differentiated integration that would allow member states with similar problems or similar institutional conditions to use European-level decision processes for achieving coordinated reforms. Nevertheless, regulations at two levels, or ‘regulations on a sliding scale’, may be the only practical way to maintain the momentum of positive integration, especially in light of the dramatically increasing divergence of problems and interests among member states that is to be expected after the eastern enlargement.

This chapter returns to the issue of democratic legitimacy. Even though European institutions in their present shape are able to convey output-oriented legitimacy, the policies that can in fact be adopted under these conditions are limited in their problem-solving capacity. However, these European policies do contribute to a ‘democratic deficit’ at the national level as governments find themselves increasingly constrained by the legal rules of negative integration and by the economic competition among national systems of regulation. It seems worth exploring, therefore, whether this regulatory competition could itself be regulated by the evolution of a European ‘law of unfair regulatory competition’.

An overview is provided of the economic rationales for protection of IPRs (intellectual property rights) and the reasons behind moves to adopt multilateral rules in this area. Some of the major conflicts of interest that shaped the TRIPs (Trade‐Related Intellectual Property Rights) agreement on this are summarized, as are the basic elements of the substantive disciplines imposed. The agreement is unique in the WTO (World Trade Organization) context in that it imposes obligations upon governments to adopt a set of substantive rules in an area that traditionally has been regarded as the purview of domestic regulation. It is an example of what Tinbergen (1954) has called ‘positive integration’; this is in contrast with the ‘negative’ integration found in the GATT, which involves agreements not to use certain policies that directly affect (distort) trade flows––such as export subsidies or quotas––or if used, imposes constraints on when and how trade policies may be applied. The chapter ends with a brief discussion of implementation‐related questions, focusing in particular on the options that exist to reduce the potential negative aspects of stronger IPRs on national welfare. The different sections are as follows: Intellectual property and international trade; International conventions and GATT (General Agreement on Tariffs and Trade) history; The Uruguay Round negotiations; WTO rules on intellectual property rights; Implementation concerns and challenges; and Conclusion.

During the past ten years, the Europeanisation of social protection has undergone transformation and change. Europeanisation of social protection concerns the relationship between the national and EU levels in social protection. Originally, Jean Monnet and other architects of the EU bought into neofunctionalist theories of European integration. Neofunctionalism suggests that cooperation among European countries in economic areas and technical matters would initiate positive integration where countries would agree on the formulation of common policies at the EU level. Thus defined, positive integration requires a transfer of sovereignty from the national to the supranational level, such as that of the EU level. This chapter focuses on the Europeanisation of social protection. While social protection before was geared towards the transfer of sovereignty from the national level to the EU level, today, it aims to facilitate collaboration among sovereign Member States. The chapter begins with a discussion on the series of adaptational pressures and mediating aspects that are significant for understanding the different impacts which are expected across countries. It then describes how these country-specific pressures have been used as criteria in selecting eleven countries for case studies, so that they mirror the existing diversity between Member States and allow the testing of the different hypotheses on why the European impact differs across countries. The chapter also provides a simple model that depicts Europeanisation of social protection as a downloading process, and examines whether the model aids in understanding the recent welfare reforms and government responses. In addition to the simple model, it presents a complex model of Europeanisation, one that better explains the increasingly interweaving of the national and EU levels. The chapter ends with a discussion on some of the perspectives for the evolving relationship between the EU and the national level in social protection.

This chapter explains that the reason why the main judicial formulae used to identify restrictions on the market freedoms are so unsatisfactory is that such judicial formulae incompletely reflect normative debates concerning the ideal levels of centralization, harmonization and regulation in the EU’s internal market. Instead of fitting neatly into normative theories, judicial tests contain within them a variety of potentially conflicting normative approaches. In particular, this chapter shows how tests concerning the concept of restriction on free movement reflect specific perspectives on what negative integration is supposed to achieve, and that discussions about them fail to take into account how such tests impact on, and are affected by, European integration more generally. This demonstrates the limitations of legal analysis that focuses exclusively on the internal dimension of free movement law.

This chapter presents a macro-level analysis of the phenomenon of judicial deference in free movement law. It focuses on two questions: how frequently does the European Court of Justice defer to national authorities? Has its intensity of review of Member State action changed over time? A systematic analysis of free movement jurisprudence reveals that deference to domestic institutions has increased since the 1970s, a development which challenges some common beliefs about the Court of Justice and free movement law. The chapter looks at possible reasons for this evolution, arguing that it is connected to broader legal, political, and institutional changes that have taken place in the EU.

Article 149 EC The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.

In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States. Such measures shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).