Maastricht Working Papers (2016) 43 págs.
Abstract
The EU has most frequently resorted to harmonisation as a model to
achieve its internal market. This contribution examines the dynamics of legal
differentiation in EU’s internal market law laid down in Article 114 TFEU and
secondary laws. It concludes that there has been a modest number of invocations
of the derogation possibilities under Article 114 (4) and (5) TFEU and the
safeguard clauses. The low number may be due to the fact that may both the
Commission and the Courts have a very rigid reading of the procedure whilst the
grounds for invocation are very limited. This low number nevertheless does not
automatically imply that Member States agree with the level of protection laid
down in the EU’s harmonisation measures or that the opt out mechanisms are not
relevant. Derogation mechanisms may play an important role in the negotiations
of the level of protection in the draft legislative acts. This study moreover
reveals that the derogation mechanisms may be important devices of regulatory
adjustment and learning in the fields of public health and environmental protection
in the EU. They ultimately may rather strengthen the uniformity of regulatory requirements
in the EU internal market instead of leading to regulatory diversity.
