Intergovernmental action above, below and alongside the European Union : the law and practice of parallel and partial agreements between member states

Abstract

In the last decades, the EU has gradually become Member States’ preferred vehicle through which they deepen intra-European cooperation. In that context, they act mainly through the European Union and its institutional apparatus, which they have endowed with defined missions and for the benefit of which they have limited their sovereign rights. Yet the establishment of the Union has also given rise to a Union system lato sensu outside the Union legal order stricto sensu but within the broader system of public international law within which that order is situated. In this grey area, Member States act collectively, alongside, below and above the Union in close connection with its integration agenda, by way of treaties governed by international law. In a cases-based analysis, this research unpacks those forms of intergovernmental action, from the early days of the EEC up until now. The thesis investigates the following questions: How to differentiate action through and outside the Union? Why do Member States take the intergovernmental route when they could have acted through the Union? What is the effect of ‘reverting to international law’ on the development of the Union and its institutional balance? And conversely how does Union law and its development affect the ways in which Member States act collectively outside the Union framework? The thesis ultimately nuances the dominant view that sees intergovernmental action in a negative normative light. In the current constitutional context, acting intergovernmental does carry significant risks in terms of legal compliance, accountability, and transparency. Yet many intergovernmental accords, it is argued, enhance, or protect the foundational trust between Member States and vis-à-vis the Union that makes common action possible.