Márton SULYOK: Is This Loyalty In Fact Disloyalty?

On the Remarks of the German Government to the Commission after PSPP

If this was a eulogy, I would begin by saying that “it is with great sadness that we now need to face an ugly truth”, and the situation is kind of the same. Just coming to my senses after the many tumultuous events in 2021 European constitutional law, I noticed an eye-opening article on Verfassungsblog written by our colleagues, Karl-E. Hain and Frederik Ferreau, who talk about the German government walking on what they characterize as “tricky terrain”.

In the aftermath of the now infamous May 2020 PSPP decision, the general sentiment of European constitutional discourse towards the Federal Constitutional Court (GFCC) has significantly turned for the worse, casting shadows of suspicion on the judicial body for laying down the legal foundations nothing else than the beginning of Dexit. No matter how unrealistic these undertones continue to be, in this climate, the natural counteract was announced by the EU Commission in the form of an infringement proceedings, which was then closed against Germany on 2 December 2021, as Christmas came early for the newly formed German executive after the shuffle resulting from the most recent elections.

As one of their first acts as Germany’s newly inaugurated executive, the Government has sent a response to the formal notice sent by the Commission, which has rightly been described as “verfassungsrechtlich mindestens bedenklich”, which is German for ‘at least questionable in a constitutional legal sense’. The exact portion of the response they refer to roughly translates into this: The Federal Government has undertaken, “with express reference to its duty to cooperate loyally anchored in the treaties,” among other things, to “use all means at its disposal in order to actively avoid a repetition of an ultra-vires finding in the future”.

Prima facie, there are many problems with this executive statement. First off, and this is rightly acknowledged by the VerfB authors as well, a grave danger to judicial independence lies within this statement. Judicial independence is, however, often characterized as a pivotal element of the rule of law and therefore is placed on the forefront of current European debates with such countries that are thought to fall behind on the enforcement of European values on this front.

The second thing is the surprising tone of the quote talking about “actively avoiding the repetition of an ultra-vires finding” as if such a declaration by a constitutional court was a dangerous viral infection or a blossoming pandemic (by a less tasteful turn of phrase: an “ultra virus”, if you will…) The quick spread of this German “ultra virus” was envisioned by many in legal academia after 5 May 2020, but experience tells us that not many constitutional courts have “fallen in line” with this approach.

Those wo did, have been extensively criticized with relevant in-depth explanations of judicial statements that pointed to an abuse of competences. The Hungarian Constitutional Court – most often scolded by many for blindly following the GFCC in general but also in terms of sovereignty and identity control – decided in a very controversial decision reached on 10 December 2021, that the judgment of the CJEU on certain migration related issues (C-808/18) needs to be enforced without question. So not all political expectations in terms of constitutional courts are “safe bets”, when it comes reviewing the relationship of EU law and the national constitution.

Thirdly, a different narrative of the principle of loyalty emerges from the above quote, one that was so far unseen in recent European constitutional discourse. To me, it represents an unwavering conviction wrapped into the duty of loyalty under the Treaties, which triggered an executive instinct to limit the competences of an independent, autonomous and quite vocal constitutional organ created to defend the constitution and the national legal order. Were it not in Germany, where our story unfolds, the aftermath would potentially have been much louder in Europe. However, as the cited VerfB authors point out, German media was not quick to pick up on this as far as reporting and public broadcasting goes. Historical experience dictates that similar efforts to curtail the powers of a constitutional court have already been met with unforeseen uproar at the time of the adoption of the new constitution for Hungary in 2011-2012, but no European alarm bells toll as of yet for Germany – despite the welcome ones that have been duly rang by Hain and Ferreau on Verfassungsblog.

A familiar sentence pops up in their article when they talk about the core value of judicial independence: “This basic principle of our constitutional order must not be touched.” Many things have been said and written down on this issue already in the context of current Polish and Hungarian debates on the rule of law. Regardless whether we can completely agree with the arguments of either of the sides, what might already be common knowledge among these may be the opinion taken by the Polish Constitutional Tribunal (PCT) in response to interim measures imposed by the CJEU regarding the operation and composition of their Disciplinary Chambers in infringement proceedings against Poland. In that case, decided by the PCT in July 2021, it was put forth that the principle of loyalty as set in stone by the Treaties is incompatible with many specific provisions of the Polish Constitution and the institutions and branches of power created and protected by it.

In this German case, surprisingly however, this minute detail of “constitutional tissue” seemingly did not bother the executive at all, and they calmly take aim at the constitutional judiciary to put the Commission at ease by making political promises.

If nothing else, it has the impression of a chilling effect on constitutional adjudication in the context of integration and intends to put the GFCC “in its place”, especially in light of the fact that this proclamation contributed to the closure of the infringement proceedings against the country. (It is not my place to say whether the change in the leadership of the GFCC contributed to the birth of such bolder executive statement regarding the Court, as I do not have sufficiently intimate knowledge of the domestic workings of constitutional dialogue in Germany, but this is something that might one time come to light.)

On a pessimistically dystopian note, the above events might in reality be foreshadows of a scenario where if the German government would like “put their money where their mouth is”, they would need to initiate and promote legislation curtailing the powers and competences of their own constitutional court, an unquestionable symbol of German legal and constitutional culture, and an organ that may very well act as a guardian of the floodgates of EU integration and of the national constitution against executive overreach when it comes to legislation. Another problem with this statement is that it gives the impression that maintaining national sovereignty no longer seems a key issue for the German executive. “Using all means to actively avoid an ultra vires finding” might just as well mean that Germany no longer intends question anything as far as EU law goes and basically switches off an emergency break put in place for exigent circumstances, thereby dissolving its sovereign powers in the integration. This is no longer sovereignty transfer, no longer sovereignty pooling. This places no further emphasis on essential state functions and fundamental constitutional structures inherent to constitutional identity. At the very least this signals shortsightedness. In a different context, one might wonder, if a different German government would have chosen their words more carefully.

If – focusing on loyalty – we try and apply the allegory of marriage to describe the European integration and the internal dynamics of a Member State’s separation of powers and checks and balances, then two arguments can be made.

(i) European integration is (unfortunately) not a marriage without the possibility of divorce, but it is built on loyal cooperation between the Union and its Member States, despite the different interpretations of the principle that might apply;

(ii) The branches of public power within the Member States (fortunately) live in such a marriage: one without the possibility of divorce.

Turning back to the title of this post under this second angle, I asked: “Is this loyalty in fact disloyalty?” However, I could ask an additional question as well: “If yes, then against whom?”

Ideally, the two spouses (herein the Government and the Constitutional Court) should do everything in their power to engage in meaningful dialogue on the basis of – but at least not completely disregarding – this inherent loyalty (fine-tuned by checks and balances) to try and resolve their problems in lieu of solidifying fault-lines in and by their interactions. In borrowing from Garner, Lindahl and Tuori, I would like to add that these fault-lines are indicators that emerge “between what a [legal] collective can order – the orderable – and what it cannot order – the unorderable”.

In any case, such an executive reference – even if its veiled our turns out to be unfulfilled – on the principle of loyalty can indeed be considered in itself as a declaration of disloyalty to the internal equilibrium of the checks and balances working within Germany, creating fault-lines. In other words, without prejudice to whatever obligations might fall on Germany as a Member State arising out of the principle of loyalty in the Treaties, it shall never – not even by way of veiled references of executive overreach – disregard its duty of (loyalty construed as) fidelity to upholding the rule of law and the internal balance of the national legal order. This – logically – can only be maintained, if no constitutional actors are stripped of their core competences in watching over European integration and the jointly exercised competences. Constitutional courts are well within their rights to set (counter)limits and boundaries, and prevent the creation of fault-lines, and they shall not be prevented from doing so.

To use a familiar turn of phrase regarding the German case: Solange (as long as) this is not the case, serious doubts are cast on any relevant actions of the executive in light of the deep-seeded constitutional responsibility of Germany for the EU integration, called Integrationsverantwortung, allowing its national bodies, and first and foremost the GFCC to set constitutional counter-limits to it in order to realize the Integrationsprogramm.

Since I mentioned Solange, it is important to bear in mind the fact that by this statement, the German Government seems not only to go against the rationale of the PSPP judgment, but also the entire well-established German constitutional jurisprudence that provided the direct footing of its constitutional arguments, dating back actually to the 1970s, when Solange I was born.

Hain and Ferreau address this issue by alluding to the government’s control over the exercise of its responsibility for integration (developed in their 2009 Lissabon-Urteil, BVerfGE 123, 267, commonly referred to as Integrationsverantwortung – and based on which legislative commitments have also been made in that same year.

In this angle, it is interesting but not surprising, that when e.g. in Hungary the same approach was taken at the time when the Constitutional Court (HCC) abolished the Interim Measures of the Fundamental Law, and the constitutional legislator decided to put most of the annulled provisions back into the constitution by amendment contrary to the HCC’s ruling, at this moment everyone in Europe cried the death of the rule of law as one.

Now, I appreciate that no actual laws have yet been “put in motion” in Germany following up on this executive commitment (so this way the Hungarian analogy is only partially applicable), but it would be interesting to see how the story unfolds and what tone will the eventual, if any, (international) critics use in commenting on developments.

Working toward reaching the conclusions, one more remark: I am well aware that it is chic these days to act as if – along with national sovereignty and national constitutions – national constitutional courts were outdated constructs. What’s more, they are dinosaurs that need to be chased to the edge of extinction, because they do not fulfil any meaningful purpose and are seen to obstruct the effet utile of EU law. However, there are indeed lines in the sand that should not be crossed by anyone who feels a constitutional responsibility to work toward maintaining the internal balance of the integration and of domestic power structures between constitutional organs.

This German case is just as much similar to an ELE (extinction-level event) as the crusade that has been initiated by the Romanian Court of Cassation against the Romanian Constitutional Court. This latter case asked the CJEU to take into consideration whether it should be allowed that an ordinary national court disregard the otherwise erga omnes binding decision of a national constitutional court if it considers that the effet utile of EU law so requires, against established national regulations and practices. In their judgment handed down on 21 December 2021, in joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 et C‑840/19, they replied to this question in the affirmative – presumably subjecting the decision to further scrutiny in the months to come.

Without going into the specifics of the case, which is not my goal here, in the abstract, the far-reaching ripple-effects of opening such a line of argumentation under the guise of primacy of EU law forces to ask ourselves some hard questions in terms of our (dis)loyalty to the settled constitutional arrangements and (institutional) structures of our rule-of-law democracies.

  • Are constitutional courts really carnivorous dinosaurs, that need to be kept on a very tight leash, if not driven to extinction?
  • Are developments in this general spirit the first markers of overarching European political and judicial movements to abolish the inherent dualistic structure of apex courts in all countries that have adopted such a model over time and to create a monolithic system spearheaded by Supreme Courts that might or might not have powers of constitutional adjudication?
  • Does the constitutionally defined “erga omnes” (i.e. binding on everyone) effect of constitutional court decisions really no longer subsume ordinary, lower courts under “everyone” in terms of constitutional review and interpretation?

As you can see, there are more questions raised than answers that can be provided. Among them, the most important: If we keep this up, what else remains that we can be (dis)loyal to?

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu

Frederik BEHRE: A Ministry of Finance?

Charting and Testing the National Constitutional Limits to EU Fiscal Integration

I am honored to have been invited to introduce my 2021 PhD-thesis titled “A Ministry of Finance? Charting and Testing the National Constitutional Limits to EU Fiscal Integration”, published in the series of the Meijers Research Institute and Graduate School of Leiden Law School (Leiden University) on the pages of Constitutional Discourse.

The EU financial and sovereign debt crisis – better known as the Eurocrisis – erupted in late 2009 with destructive force. It threatened the survival of the EU’s single currency and thereby endangered the entire European integration process. The crisis revealed that the Euro suffers from major structural deficiencies, formally embedded into the Economic and Monetary Union’s (EMU) legal framework. And despite initial emergency fixes undertaken during the peak of the crisis, it is accepted that more comprehensive reforms are necessary to remedy this deficient EMU structure. The remaining flaws are currently in the spotlight again due to the economic consequences of COVID-19. It is by now widely acknowledged that some form of EU fiscal integration is necessary to remedy these structural flaws and achieve a stable euro in the long run. To clarify, the research employs the concept of EU fiscal integration as a broad, open-ended umbrella-term that encompasses all decisions on public expenditure and revenue, including on taxation and debt-issuing. Subsequently, this open-ended term is rendered more specific based on concrete EU fiscal integration proposals. Despite the apparent necessity of EU fiscal integration, the room for such integration steps seems strictly delimited by national constitutional concerns, as was only recently illustrated by the German PSPP-judgment and the reluctant stance of the Finnish Constitutional Law Committee in relation to Next Generation EU. Metaphorically speaking, these two constitutional decisions are only the tip of a much larger iceberg of critical national constitutional views formulated against the conferral of core state powers to the supranational level – including in particular national budgetary and fiscal prerogatives that would ultimately be altered by the proposed EU fiscal integration steps. National constitutional law therefore formulates hard limits against the surrender of fiscal, budgetary or economic powers to the EU. The result is a fundamental dilemma: on the one hand, effective EU fiscal integration seems necessary to stabilize the common currency and avoid an even more costly crisis. On the other hand, fiscal integration in the EU appears to be legally impossible, given the limits imposed by national constitutional systems and the need to respect national democracy and sovereignty.

Faced with this apparent dilemma, my research conducts a comparative assessment of a selection of national constitutional limits that are applicable to EU fiscal integration in order to investigate the dilemma’s legal-constitutional parameter. The research thereby determines how similarly – or differently – national constitutional systems address the very same EU integration ambition in order to determine what EU integration steps are compatible with national constitutional law. The research is hence divided into two different conceptual parts. In the first part, the available national constitutional space for EU fiscal integration is charted and dismantled. The chosen comparative setting allows to focus on a selection of representative national constitutional approaches and to identify national constitutional best practices. These best practices could be potentially employed in other Member States to locate additional constitutional space for EU fiscal integration whilst maintaining – or even increasing – the effective protection of core constitutional concerns. In the second part of the research, the previously charted national constitutional space is tested against the most authoritative fiscal integration reform proposals debated within the EU in order to evaluate and determine their national constitutional attainability.

More specifically, as previously indicated, Part I compares a selection of national constitutional constraints that set limits to EU fiscal integration ambitions. Confronted with 27 national constitutional strategies to manage EU integration, the research is delimited to a representative sample of national constitutional approaches and limitations imposed against these integration ambitions. It identifies two principal archetypes of how constitutional systems approach EU integration. On the one hand, a range of national constitutional systems developed more rigid constitutional approaches to EU integration that formulate strict substantive limits – or as Mattias Wendel calls them “red-lines” – for EU integration, traditionally determined by strong and independent constitutional actors. As a conceptual opposite to constitutional rigidity, some Member States have adopted more flexible constitutional approaches, where the main constitutional hurdle for EU integration is political-procedural in nature. Given that EU fiscal integration proposals will have to fit the constitutional space available under rigid as well as flexible constitutional approaches, the research conducts a wide charting and dismantling of national constitutional limits in the respective systems taking Germany as study case for rigid and Finland as study case for more flexible constitutional approaches. This assessment reveals that constitutional identity limits are seemingly the most serious legal-constitutional hurdle for EU fiscal integration ambitions. Therefore, the subsequent comparative assessment focused on the French, German, Polish and Spanish constitutional identity limit to determine their possible limiting effect for EU fiscal integration. Taken together, Part I thus establishes what the current legal space for EU fiscal integration is, and to what extent more space can be created by applying the outlined constitutional best practices.

Part II then examines whether the most authoritative reform proposals for EU fiscal integration are feasible within the available constitutional space. In other words, are the proposals currently on the table legally feasible? And conversely, what form of fiscal integration is maximally achievable within the available national constitutional space? This entails first the identification of the most relevant and authoritative EU fiscal integration proposals. These proposals are subsequently broken down into core components following a two-fold functional approach, which organizes the proposed fiscal integration steps first based on substantive elements (such as the creation of a fiscal capacity or the creation of new institutional-administrative structures) and second based on the envisaged degree of EU control. Subsequently, the deconstructed EU fiscal integration steps are tested against the previously charted national constitutional space to determine their attainability. The resulting overview outlines possible constitutional conflicts and remedies to address such conflicts both at the national constitutional level as well as when devising these EMU reform plans.

Based on this analysis, the research shows that there are important and far-reaching national constitutional limitations to EU fiscal integration. At the same time, even in the most rigid national constitutional systems, legal space can be found and created for some degree of EU fiscal integration, provided it is well designed.

In order to further reduce the tension between fiscal integration ambitions and national constitutional law, without renouncing national constitutional core values, the dissertation introduces two concrete proposals:

Firstly, the research proposes to integrate the explicit and implicit benefits resulting from EU fiscal integration into the national constitutional assessment of integration. This would modernize the prevailing state-centric or competence-centric interpretation of national sovereignty and democracy, so that it better matches the actual interests of Member States and their citizens. National constitutional actors can achieve this modernized understanding by following two strategies developed within the research: On the one hand, the research identified a constitutional double standard in the interpretation and application of national constitutional law – particularly in Germany – to the disadvantage of EU integration. Hence, by applying a consistent interpretation of national constitutional law, additional constitutional space can be located for EU fiscal integration. And, on the other hand, constitutional actors can draw inspiration from constitutional best practices identified, for example, in the Finnish constitutional order.

Secondly, the thesis proposes to better adapt the current proposals for EU fiscal integration to the limits that inherently result from the nature and content of the various national constitutions and the well-founded concerns of several constitutional actors that oversee these constitutions. These adjustments can constructively take into account the identified national constitutional constraints and shape fiscal integration in such a way as to go along with and leave room for national constitutional debate. One concrete possibility for institutional amendment at the EU level to address these national concerns is the establishment of a Eurozone Forum of National Parliamentary Delegates. This Forum would be exclusively composed of national parliamentary delegates and thus integrate the national parliamentary level better into EMU decision-making, which could address the identified concerns of national constitutional authorities regarding EU fiscal integration and the required degree of national parliamentary control over budgetary and fiscal decision-making. The proposed Forum would complement the existing informal general dialogue of COSAC and could guarantee that the fiscal decision-making process at EU level is in sync with the national processes.

Ultimately, these two proposals could help to break the apparent dilemma between the need for EU fiscal integration and respect for national constitutional boundaries. Overall, EU integration is a process of continuous amendments, challenges and transformation. Increasingly, this process conflicts with traditional characteristics of the national constitutional space, which can explain the emergence of national constitutional identity limits as a new type of constitutional defense mechanism. Through these limits, national constitutional authorities attempt to contain EU integration and preserve national constitutional structures in light of an ever-deepening integration. Although the research illustrates that national constitutional systems can be receptive towards the various benefits that stem from supranational cooperation, this receptiveness is increasingly limited as EU integration advances towards the core of national systems: their constitutional identity. EU fiscal integration ambitions squarely fit into this general trend, as they propose a shift of core constitutional and political competences from the national to the supranational level. Naturally, this proposed shift is met with national constitutional resistance displayed in the various constitutional proceedings in the Member States assessed within the research. The PhD-manuscript argues that overcoming these national constitutional challenges against EU fiscal integration – but also against EU cooperation in core state areas generally – might require initiating a new chapter in national and supranational constitutionalism. After all, EU integration and national constitutional law are not opponents but can and should be mutually reinforcing allies in a globalized world.

Frederik BEHRE is a postdoctoral researcher at the Europa Institute (Leiden University). He completed his PhD-degree in October 2021, focusing in his research on a comparative assessment of the national constitutional limits to EU fiscal integration. Frederik graduated from the European Law LL.M. programme at Leiden University. Previously, he studied German Law and completed the LL.B. programme on Information Technology and Intellectual Property Law at Leibniz University (Hannover, Germany). In addition, Frederik completed the Europaeum Scholars Programme (first cohort), a PhD-programme organized by Oxford University and the Europaeum network.

In his research, Frederik is particularly interested in the interaction between national constitutional law and EU law, including a focus on comparative constitutional research. He explores the challenges and opportunities of this interaction through substantive areas of the law, such as the Economic and Monetary Union and most recently EU climate change and environmental regulation. Frederik is also interested in comparative regional integration law and the potential to exchange legal experiences across different regional integration projects globally.

Enikő KRAJNYÁK: Territorial Sovereignty and Red Lines on the Sea

The Case of the Aegean Maritime Zones


The issue of territorial sovereignty is crucial in international law, as territory is a fundamental component of the State: without territory, population, government and sovereignty, the entity could not be considered a State.[1] It is, however, less emphasized, that the State is entitled to territorial sovereignty on the sea as well: the extent of the powers of a State depends on the distance from the shore in question. Therefore, customary law and international agreements developed a system of maritime zones in order to determine the sovereignty of the Coastal State on the sea.

Even though the United Nations Convention on the Law of the Sea (Montego Bay, 1982, hereinafter referred to as: UNCLOS or the Convention) provides rules on the delimitation of maritime zones, due to the geographical features of each shore, it leaves a broad margin of appreciation for the States. Political reasons, such as building alliance systems, the States’ individual approaches to constitutionalism and sovereignty, among others, play an important role in the decision-making process. Moreover, parties might fail to establish an agreement in conformity with UNCLOS for various reasons: either because of the complexity of the delimitation itself that would leave one party in an extremely unfavorable situation under UNCLOS, or because one of the Parties is not a signatory of UNCLOS.

Such cases have recently emerged in connection with Greece and its neighboring countries: two agreements have been concluded so far on the delimitation of maritime zones (with Italy and Egypt), while another one is pending with Albania, as the Parties turned to the International Court of Justice (further referred to as: ICJ). All these bilateral disputes are being resolved according to the provisions of UNCLOS. Turkey, on the other hand, has not ratified the Convention and has a completely different approach towards the question, that is based on the sovereignty of the country rather than adherence to the international practice. This article presents the different strategies to tackle the delimitation of maritime zones in the Aegean and addresses challenges to be solved in the future.

The Delimitation of Maritime Zones

In order to understand the above-mentioned strategies, first of all, the division of maritime zones shall be discussed, providing insight into the nature of (Coastal) State sovereignty on the different sections of the sea. According to UNCLOS, the closer the zone is to the coast, the stronger the powers of the Coastal State are. Therefore, the sovereignty of the State extends to 12 nautical miles, however, in this zone, ships of all States enjoy the right of innocent passage (Articles 3; 17). Beyond the territorial sea, a section of further 12 nautical miles constitutes the contiguous zone, in which the State may exercise control that is necessary to enforce its customs, fiscal, immigration or sanitary laws or regulations (Article 33). The Exclusive Economic Zone (hereinafter referred to as: EEZ) may extend to 200 nautical miles from the baseline. This is the most important zone from the economic point of view, as the State has sole exploitation rights over natural resources and water superjacent to the seabed and of the seabed and its subsoil. Additionally, the State has jurisdiction over its artificial islands, installations, marine research and the protection of the marine environment (Articles 55-57). The next zone, the continental shelf is the natural prolongation of the land territory to the outer edge of the continental margin, to a distance of 200 nautical miles from the baseline that consists of the seabed and subsoil of the shelf, the slope and the rise, excluding the deep ocean floor. The State exercises sovereign rights for exploitation of natural resources in this zone as well (Articles 76-77). The area beyond the continental shelf is referred to as ”high seas” where the freedom of navigation, overflight, scientific navigation, inter alia, are guaranteed for all States, whether coastal or landlocked (Article 87).

The Greek-Italian and Greek-Egyptian Bilateral Agreements on the Delimitation of the Exclusive Economic Zone

The delimitation of the EEZ shall primarily be set by a bilateral agreement, taking into consideration the principles of equidistance, equity and proportionality. Greece aims at delimiting its maritime zones according to UNCLOS, however, it is only possible to do so with other signatories of the Convention. The Greek-Italian bilateral agreement is of particular importance, as it serves as an example for the subsequently established or currently debated bilateral agreements (that is, for instance, the bilateral dispute between Greece and Albania, that will be discussed below). The agreement was signed on 9 June 2020 in Athens, and it designates the boundary of the EEZ the same as the continental shelf that was lined out in a bilateral agreement on the delimitation of the continental shelf in 1977, before the ratification of UNCLOS.

At this point, it is worth mentioning that the concept of the EEZ was first regulated by UNCLOS, therefore, the agreements prior to it could only deal with the delimitation of the continental shelf. Nevertheless, the establishment of the EEZ on the previously outlined continental shelf is a generally accepted practice in international law. The agreement is embedded in the process of the creation of the Eastern Mediterranean Gas Forum (EastMed) that would serve to deliver gas through the Mediterranean Sea from Cyprus to Spain.[2] In order to come to an agreement, Greece adopted a number of provisions more favorable to Italy, such as implementing the principle of equitable geographical distribution in such areas (between Salento and the Greek islands of the Ionian) that were previously entirely under Greek influence, or granting wide fishing rights to Italy in zones under Greek sovereignty.[3] It is important to highlight that the Greek-Italian bilateral agreement complies entirely with UNCLOS, as it recognized the continental shelf of the Greek islands of the Ionian, which is of crucial importance in the delimitation process, as it could determine economic power relations on the sea.[4]

Similarly to the agreement with Italy, Greece managed to establish an agreement with Egypt a few months later, on 6 August 2020 in Cairo. Egypt – as Greece and Italy – is a signatory of UNCLOS. Moreover, Egypt was the first State in the Mediterranean region to sign a bilateral agreement on the EEZ with Cyprus in 2003.[5] However, this agreement is rather disputed, as the EEZs between Greece and Egypt are claimed to overlap with the EEZs of Turkey and Libya set out by a Turkish-Libyan bilateral agreement of 27 November 2019. The key issue is that Turkey has not signed UNCLOS, therefore, those provisions were not taken into consideration in the delimitation of its own maritime zones.

The main problem with the Turkish agreement is that it refuses the recognition of the continental shelf of certain Greek islands (e.g. Castellorizo, Crete, Rhodes), that is why Greece and its ”allies” – Italy and Egypt – do not recognize the validity of this agreement. Consequently, Turkey considers the Greek-Egyptian agreement null and void.[6] Moreover, the Turkish-Libyan agreement raises other concerns from the point of view of general and customary rules of international law: the Libyan Government of Tripoli that signed the agreement is not recognized by the Parliament of Tobruk, therefore, ratification and entry into force practically seems impossible at this moment. Nevertheless, Greece obviously tried to win Egypt for this bilateral agreement. In the beginning, Egypt was open to negotiate with both Greece and Turkey but after the latter concluded the above-mentioned agreement with Libya, Egypt sought to agree with Greece, which, due to the urgent need to find partners in its maritime disputes, offered an advantageous deal to Egypt. This could be perceived from the fact that the bilateral agreement outlines the maritime border of the two countries in a 9:11 ratio in favor of Egypt.[7]

Disputes with Turkey and Albania – different solutions for dispute settlement

The Greek-Turkish maritime dispute on the EEZ dates back to the 2000s, when the exploration of natural gas urged the States to find a solution for the division of the Aegean in a way that is acceptable for both Parties. However, due to the fact that the Aegean islands belong to Greece and therefore, nearly 71.5% of the sea is under Greek control,[8] Turkey consistently refuses to recognize the provisions of UNCLOS and of those agreements that approve the continental shelf of the Greek islands. Turkey, in fact, calculates the maritime zones from the coasts of the Greek mainland, ignoring any legal consequences of the continental shelf of the islands, as – according to Turkey – they are located on the Turkish continental shelf.

Furthermore, Turkey concluded a bilateral agreement with the TRNC (Turkish Republic of Northern Cyprus) on 21 September 2011 that does recognize the continental shelf of Cyprus, referring to the fact that Cyprus is not located on the Turkish continental shelf.[9] In my opinion, the Turkish argumentation noting that each island shall be examined individually, taking into account all the geographical features of these islands, is correct. However, what is true for Cyprus, might not stand for the Aegean islands. Although, the fact that Turkey tries to regulate the Aegean region unilaterally, without any negotiations with Greece, is contrary to the rules and principles of international law. Furthermore, Turkey consistently refers to the antecedent of UNCLOS, the Convention on the Continental Shelf (1958, Article 6.2) which states that special circumstances might justify a boundary that is not determined by the application of the principle of equidistance. According to Turkey, such a special circumstance is the fact that the Aegean islands are located on the Turkish continental shelf. However, Turkey is not a signatory of this Convention either, therefore, it may refer to the conventional provisions in its legal argumentation with less success, especially if we take into account that the existing delimitation agreement that Turkey refers to was concluded with a country (the TRNC) that is not recognized as sovereign by the international community. The jurisdiction of the international courts on the legal status of the islands points out certain examples that could be considered such a ”special circumstance” (as it was formulated in the 1958 Convention mentioned above), such as the artificiality, the underpopulation or the lack of independent economic activity.[10] In the case of the Aegean islands, neither the natural creation nor the strong relation to the Greek state that dates back to thousands of years could be questioned, therefore, the Turkish standpoint seems unjustified.

In my opinion, a possible solution for the above-mentioned challenge could be a dispute settlement at the ICJ. However, the chances that Turkey would submit to the jurisdiction of any international court, are quite low: in 1976, Greece instituted proceedings against Turkey at the ICJ in order to settle the dispute of the recognition of the continental shelf of the islands but the latter denied the competency of the Court, therefore, the case was not processed.

However, there is an example of peaceful dispute settlement as well: Greece launched negotiations on the delimitation of maritime zones with Albania in 2018. In 2009, the two States drafted an agreement on the delimitation of the EEZ, however, Albania refused to ratify it, as the Albanian Constitutional Court ruled that it infringed the territorial integrity and thus the Constitution of Albania. Nevertheless, Greece aims at finding a compromise with this neighbor as well, even though it is obviously unfavorable for Albania: the continental shelf of certain Greek islands exceeds so far that Albania would end up having a relatively small EEZ. Moreover, Turkey also tries to put pressure on Albania – according to certain sources, Turkey played an important role in the failure of the negotiations in 2009. Due to the complex political situation, on 20 October 2020, Nikos Dendias, Greek Minister of Foreign Affairs and Edi Rama, Albanian Prime Minister agreed on jointly submitting the issue of the delimitation of the EEZ to the ICJ. It is important for both States to settle the dispute peacefully, in a way that complies with UNCLOS. With this step, Greece intended to indicate the importance of a dialogue and the recognition of the provisions of international law and of UNCLOS, instead of unilateral decisions that might infringe the territorial integrity or sovereignty of another State.

The infringement of territorial sovereignty on the sea is a rather sensitive topic for both States: as it had been pointed out above, the territorial sea may extend to 12 nautical miles, but the Greek territorial sea on the Aegean is currently set in 6 nautical miles. If Greece vindicates the maximum extent, it will overlap with the Turkish territorial sea that is fixed in 6 nautical miles. This could result in the situation that Turkey would need to ask for the permission of Greece for the innocent passage of its ships on its own territorial sea. That is why Turkey declared that such a unilateral decision of Greece would constitute a casus belli. On the other hand, it shall be taken into account that it is Turkey that intends to determine maritime issues unilaterally, without any negotiation with the neighboring country.


Based on the above, it can be concluded that theoretically there are several ways of resolving maritime disputes: the easiest and the most favorable way is the conclusion of a bilateral agreement, however, in case of a consistent disagreement, the Parties could turn to an international court (such as the ICJ, the ITLOS or and international court of arbitration). The probability of this scenario in the case of Turkey and Greece is very low, as it had been pointed out above. In my opinion, a possible solution could be the establishment of a bilateral customary law that prevails only between the two countries: this could be, for instance, the red line outlined by Giorgos Gerapetritis, Greek Minister of State on 14 October 2020. The red line equals to the maximum extent of the Greek territorial waters – 12 nautical miles – in the middle of the Aegean sea. As presented above, currently the Greek territorial waters extend to 6 nautical miles on the Aegean sea – and 12 nautical miles on the Ionian sea – therefore, the Minister emphasized that the Government intends to extend the territorial waters on the Aegean as well and will not tolerate the presence of Turkish drilling ships beyond that line. This could be a starting point of a future customary law.

However, it is apparent that Greece tries to secure allies that recognize the principles set out in UNCLOS, such as Italy, Egypt, Albania, and, most recently, the United States. Foreign Minister Dendias expressed his hope that the US might help in persuading Turkey to sign UNCLOS, or at least to accept the standard term of references for resolving issues related to the delimitation of the EEZ. Moreover, given the fact that all Member States of the European Union are signatories of UNCLOS as well, being a Candidate State of the EU, it is highly probably that Turkey shall sign and ratify the Convention in order to join the EU. The reality of the accession of the country to the EU now seems distant – considering the fact that Turkey gained the EU candidate status nearly 20 years ago, in 1999 – therefore, the ratification of the Convention does not seem to be urgent. In any case, the dispute shall be settled in a peaceful manner, probably with the help of the international community with which Greece has been trying to establish good political and diplomatic relations regarding maritime disputes.

[1] SHAW, Malcom N.: International Law, Cambridge University Press, Cambridge, 2017, pp. 156-158.
[2] LATINO, Agostina: L’accordo Italia e Grecia: zone economiche esclusive e interessi nel Mediterraneo, Instituto per gli Studi di Politica Internazionale, 22 June 2020. Available: https://www.ispionline.it/it/pubblicazione/italia-e-grecia-zone-economiche-esclusive-e-interessi-nel-mediterraneo-26617
[3] CAFFIO, Fabio: Con l’intesa italo-greca Roma entra nella partita delle Zee, Affari Internazionali, 11 June 2020. Available: https://www.affarinternazionali.it/2020/06/lintesa-italo-greca-roma-entra-nella-partita-delle-zee/
[4] PAPANICOLOPULU, Irini: Prime osservazioni sull’accordo di delimitazione tra Grecia e Italia del 9 giugno 2020, Società Italiana di Diritto Internazionale e di diritto dell’Unione Europea, 18 June 2020. Available: http://www.sidiblog.org/2020/06/18/prime-osservazioni-sullaccordo-di-delimitazione-tra-grecia-e-italia-del-9-giugno-2020/
[5] ΚΙΚΊΛΙΑΣ, Βασίλης: ΑΟΖ: Αποκλειστική Οικονομική Ζώνη. Από Τη Στρατηγική Κίνηση Στην Οικονομική Λύση. Εκδόσεις Καστανιώτη, Athens, 2012, pp. 68-72.
[6] YIALLOURIDES, Constantinos: Part I: Some Observations on the Agreement between Greece and Egypt on the Delimitation of the Exclusive Economic Zone, Blog of the European Journal of International Law, 25 August 2020. Available: https://www.ejiltalk.org/18969-2/
[8]ORTOLLAND, Didier: The Greco-Turkish dispute over the Aegean Sea : a possible solution?, Défense nationale et sécurité collective, February 2009, pp. 74-87.
[9] IOANNIDIS, Nikolaos: The Continental Shelf Delimitation Agreement Between Turkey and “TRNC”, Blog of the European Journal of International Law, 26 May 2014. Available: https://www.ejiltalk.org/the-continental-shelf-delimitation-agreement-between-turkey-and-trnc/
[10] See also: Denmark v. Norway, Judgement, Permanent Court of International Justice, 5 September 1933; The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Permanent Court of Arbitration, 12 July 2016.

Enikő KRAJNYÁK is a doctoral student of the Central European Comparative Law PhD programme at the University of Miskolc and an intern at the Ferenc Mádl Institute of Comparative Law in Budapest. Her PhD topic is about the interrelation of Human Rights and Environmental Law with special regard to the Central European region. During university years she won the National Higher Education Scholarship and the New National Excellence Programme in 2020. She also completed Erasmus+ studies at the Jagiellonian University in Cracow and at the Aristotle University in Thessaloniki.

Pál Péter KRUZSLICZ: More or Less State when facing Statelessness

Thoughts on States’ Functions when applying International and Supranational Law

In fashion, it is well-known that less can be more as Coco Channel stated. The same question arises in constitutional law nowadays with the continuous development of international and supranational law: in front of such a development, what a State can do, less or more, or more or less. Even though, the supremacy of international law and the primacy of European law put international and supranational acts before the national ones, from a constitutional perspective, the question of limits shall always be asked, and the answer demands nuances.

During the last couple of months, the problem, which is obviously in the frontline of constitutional discourse, reappeared in some judicial decisions in a very specific aspect: with regards to the safeguard of national security. In my point of view, the recent decision of the Hungarian Constitutional Court dealing with the question of the conventionality of Hungarian legal provision about refusal of the stateless status for a person whose residence would endanger the national security of Hungary, is one of those.

As a fellow researcher from my University – it was a great pleasure to read his clever lines and see his interest for the topic, even better as I do not agree completely with his critical point of view – has already summarized the case on this blog, there is no need to go in further details about its facts, legal background and the solution given by the Court. I prefer to put the question in a more general perspective, especially, because once again, it has been raised, even though in significantly different contexts and terms, but as we will see, with the same fundamental problem, before other national courts, too.

Among these decisions, one of the most relevant, in my opinion, is the recent judgement of the French State Council (Conseil d’État). In a case about the conformity of French governmental regulations obliging web and communication service providers to preserve in a generalised way individual data about traffic, localisation, and identity of their users, with European Union’s law on data protection, after a preliminary ruling in Luxemburg, the highest French administrative court stated that:

“It is an obligation of the administrative judge to retain the most conform lecture of the interpretation of the Court of Justice of the European Union about obligations resulting of the Union’s law, with constitutional principles … When the application of a European directive or regulation would jeopardize the effective guaranties for the respect of one of such constitutional principles that has no equivalent protection in the Union’s law, the administrative judge, when asked to do so, shall not apply European acts …”.

In the above-mentioned case, the relevant constitutional principle was the one about safeguarding the Nation’s fundamental interests, especially maintaining law and order, and safeguarding national security in the context of fight against terrorism. Those principles are enshrined, according to the Conseil d’État, in French constitutional law, in the Universal Declaration of Human and Citizen Rights (1789). Even though the French administrative judge could find a conform lecture of the European interpretation of Union’s legal acts, we can easily understand the importance of its statements.

Without rushing to conclusions about the constitutional limits of the application of international and supranational law, let’s take a step back. Of course, we sense and understand the delicate approach to the topic made by the Hungarian Constitutional Court solving the problem by qualifying the recently introduced reason of refusal as a procedural one that such as, can be conform with the New York Convention (1954), as well as by the French State Council being reconciling the Court of Justice’s interpretation of the European law with French constitutional principles.

However, as we announced before, there is a more general problem behind those cases – as we see despite the fact that the Hungarian decision was about conventionality and not constitutionality and the French one pronounced in an administrative proceeding not in a constitutional one – about national constitutional framework, and its application with regards to the development of international and supranational law.

If we could believe a couple of decades ago that those questions would have been answered in a comforting way, and even, we could think that the progress of international and supranational cooperation would more and more dominate our legal orders; nowadays, we could realize, especially in the context of crises (migration, terrorism etc.), a certain need and willingness to return to some constitutional bases.

Undoubtably, States are back in time of crises, and with States, constitutional law, let’s at least hope so, as we strongly believe in constitutional States, is also back. The legal construction of modern State has achieved some very important results, and even in the context of the suitable development of international and supranational cooperation, those results should be, in my opinion, preserved.

The basic achievement of national constitutions was certainly due to their capacity to strengthen a national political community. This fundamental function of constitutions with its consequences could and should never be forgotten. But, when doing so, national constitutions were not neutral. On the contrary, they could be an efficient instrument of rebalance, thanks to their high level of social normativity, the equilibrium between public power (potestas) and individual liberty (libertas): enabling the first to act for the public interest and protecting the second at the same time. And they established such an equilibrium with conformity to important choices between political, economic, social, and cultural values with regards to the specific historical context of their political community.

This equilibrium is, most obviously, always fragile. That is the reason why it shall be preserved with strong and effective normative protection. On the one hand, we have the liberty, the rights of the persons to be preserved, on the other hand, we have the public interest, or even, common values to safeguard and to promote. Two essential dimensions appear in the background of national constitutionalism: in a first view, we see the individual interests protected by individual fundamental rights and the public interest for which public power is exercised; as a second dimension, we can contour the protection of individual liberty and equality and the willing to realize common goals and to protect and promote common values.

In those basic constitutional dilemmas where, of course, usually, individual rights, and liberty and equality can be reconciled with public interests and common goals and values, conflicts can also raise, and constitutional law has the essential role to solve those conflicts. Once again, national constitutional law proved itself, during centuries, to be able to solve this kind of conflicts in a well-balanced and as such, pacific way. But what if it is losing its capacity and we are more and more exposed to external legal challenges coming from legal orders without an equivalent capacity of preservation of fundamental equilibrium, especially when choices were not really made about it.

The situation becomes obvious when the most basic principles are fragilized. Law and order such as national security are two of those. It is not by accident that maintaining the first and safeguarding the second are defined, even in the well-developed system of the ever-closer Union’s law, as essential State functions that should be respected by the supranational integration system when exercising its competences, especially the second one remaining the sole responsibility of the States. There can be no political association, or more precisely, no society with Constitution, without the capacity to guarantee those principles.

There is no doubt such doctrinal problems are, and that is quite fortunate, not raised by judicial bodies when interpretating and applying the legal acts, seeking to decide, in our cases, about the question of conformity. The Hungarian Constitutional Court has decided, after the Hungarian National Assembly decided to introduce a new reason of refusal of the claim for stateless status – I would admit in a very strange way as on the one hand, for the above-mentioned reasons, there was no need to do so, and on the other, the legal provision completed was not the best place to put such a procedural reason for refusal – that this new reason is in conformity with the New York Convention.

When it did so, it motivated its decision arguing that the Convention does not bind the States to control from a national security aspect the persons asking for stateless status even when their claim is pending, that stateless persons should be considered as third country citizen, and the lawful residence of third country citizens on the national territory of Hungary is conditioned to the absence of endangerment of national security, that the Convention provides material definition of statelessness which is not excluding procedural exceptions, that there are procedural guaranties to contest the endangerment of national security, finally, that it is for ensuring the compliance of Hungary with its international engagement that a person endangering national security should be not granted with stateless status. Hence when according to a statement of the Secret Service the person claiming stateless status and related protection, endangers national security, the claim can be refused in conformity with the Convention for the procedural exception provided by the national act.

This reasoning seems to be convincing. First, it would be, we would even claim for the use of argumentum ad absurdum, absurd to grant protection for a person who is not entitled to reside on the national territory. Secondly, even the Convention allows the States to expulse persons entitled to stateless status when they endanger national security, by argumentum a maiore ad minus, it would mean that their claim can also be rejected. Third, of course, it does not mean that the person endangering national security but filling otherwise the material conditions defined by the Convention, could not be considered as stateless, it only means that a State whose national security is endangered by its presence, shall not grant the person with the related protection.

For those reasons, the decision of the Hungarian Constitutional Court is, in my opinion, well founded. Even though, there could be some specific questioning about the judicial control of the motivation of the refusal, as for obvious security reasons, the real motives, and the method by which they have been discovered, remain secret, this is usually considered as necessary and in proportion with the constitutionally protected goal to safeguard national security.

If there can be some discourses about the topic, it is more because, one could think that with respect to the Convention – and we could, as we saw, enlarge the spectre to other international and supranational legal acts – a State cannot anymore answer to its basic constitutional function. Once again, general, and abstract thoughts about such challenging and topical questions should certainly not developed by judicial decisions, but by the constitutional doctrine, those questions should, and I am sure, will be more and more discussed so that we can understand in the most possibly comprehensive way where our States should be more and where, because of the international and supranational legal achievements, should be less present.

Péter KRUZSLICZ (PhD in law and political sciences) graduated at the Faculty of Law and Political Sciences of the University of Szeged, and got a Master degree in European Law at the Faculty of Law of the University Jean Moulin Lyon 3. He is a lecturer at the University of Szeged in comparative constitutional law and European law. His research focuses on the relations between national constitutional law and European laws in different aspects.

Károly GERGELY: Forgotten Differentiation

An Inquiry into the Informal Differentiated Integration


The concept of differentiated integration (DI) has a history of over 70 years and since its appearance in the 1950s, an immense number of definitions attempted to pinpoint what exactly this expression refers to.[1] In the case of DI, even though definitions are countless (one study enumerated at least 30 conceptual models of DI)[2], the majority of academic literature has agreed on broadly defining it as ‘as the territorial variation of validity of EU legal rules within and beyond the EU member states.’[3] This legal focus of the academic literature also resulted in a nearly exclusive focus dedicated to the formal and legal aspects of DI, thus the field became increasingly dominated by institutional arguments and by the ‘institutionalist literature.[4]

The definition one ascribes to a concept inevitably defines the kind of evidence used in addressing problematics arising around said concept. The body of evidence used by the vast majority of scholars discussing DI is therefore a mixture of Founding Treaties and other legal texts. Understanding differentiated integration ‘in a much wider context’, this essay aims to shed light on the ‘uncharted depth of projects’ of DI and to bring forth formerly disregarded evidence.[5]

This essay proposes to interrogate this ‘uncharted depth’ through two main sections. The first section looks at the accession process of the 2004 enlargement and argues that the transposition of the acquis communautaire did not lead to uniformity between Member States, rather, it created a hidden layer of differentiation. The second section argues that this ‘hidden’ differentiation had important ramifications for the development of the new members, as the lack of changes ‘locked in’ in certain cases, therefore cementing the gap between old and new member states. The essay’s argument, put forward in these two parts makes the case for moving beyond the institutional-legal narrative of differentiated integration and argues for a more serious scholarly analysis of the informal arrangements that define and shape the EU.

Introducing a Forgotten Aspect

The typologies of various DI structures are just as numerous as the names for DI or the definitions given to pinpoint the exact nature of this phenomenon, resulting in an ‘excess of terminology which can give even the most experienced specialist of European integration a severe case of semantic indigestion.’[6] This essay, therefore, does not aspire to enter the intellectual battlefield of typologizing, an intellectual endeavour which Peter Baldwin likened to the ‘works of bean-counters and bookkeepers.’[7] Nevertheless, a look at the variety of typologies of DI structures is indicative of the nature of the evidence most DI scholars utilize in their works. If one examines the corpus of academic texts, the almost exclusive reliance on EU treaties and other legal texts in order to determine the level of integration is staggering. This indicates a level of naïveté that overlooks the fact that when it comes to policy, ‘transposition does not equal actual implementation’, therefore, there is often a discrepancy between the official state of legal uniformity and the actual facts on the ground.[8]

This essay builds on the work of Nick Andersen and Svein Sitter who criticized the narrow conceptualisation of DI and ‘used the term “differentiated integration” to capture the empirical variation in the impact of EU decisions at the national level.’ They have argued that these variations may be resulting from both ‘formal and informal arrangements.’[9] In order to interrogate this ‘informal’ aspect of DI, it appears intuitive to follow a similar path to those who pinpointed the 2004 ‘big bang’ enlargement as being a crucial stepping stone in the development of DI structures in the EU.[10] Therefore, this essay proposes analysing the impact of the acquis communautaire as many scholars consider the acquis to be the most prominent antithesis to DI and a pinnacle of uniform integration.[11]

The obligation on all new member states to transpose the acquis created the expectation that at the end of the accession process (and after the end of the initial, temporary period of ‘formal’ DI measures) there would be legal uniformity in the areas covered by shared law. However, both the acquis itself and its implementation was marred by issues that prevented it from becoming the ‘great equalizer’ of the Union.

The conceptualisation of the acquis as a Swiss-army-knife of uniformity was detrimental, as within the body of legislation the pattern of detail is ‘highly uneven both across and within policy areas’, therefore, it was immensely difficult to monitor the transposition of the 80,000 odd pages of the acquis.[12]Additionally, the accession process was plagued by shortcomings on the part of the European Commission (EC), leading to an uneven introduction of the acquis.

Scholars have addressed the ‘analytical difficulties’ around assessing the EU’s accession conditionality, however, the limits of this essay only allow for a short discussion of the all-important question of monitoring.[13] During the accession process, the EC’s monitoring procedures utilized a methodology ‘according to which countries are evaluated by the number of measures adopted from detailed Commission “roadmaps” rather than by indicators measuring real changes on the ground.’[14] This roadmap-based approach was worsened by ‘superficial monitoring of candidate states’, and by the fact that ‘performance tasks set for the CEECs [Central and East European countries] by the Commission have not been easily devised, evaluated or benchmarked.’[15] In other words, the EC mistook the ‘transposition of the acquis with a successful outcome of conditionality, without paying attention to the actual implementation.’[16] For DI this meant that while officially, there was no differentiation between member states, this apparent uniformity was nothing more than a sort of Potemkin-uniformity, a uniformity that is ‘more façade than fact.’[17]

One example for this hidden DI can be found in the policy area of regional policy and regionalization as analysed by James Hughes, Gwendolyn Sasse, and Claire Gordon. In their study, the authors have shown that as a result of the relative thin nature of this policy area, outcomes in the East and Central European region were mostly influenced by a variety of domestic factors and led to different outcomes, which undermines the presupposition that the acquis stands for uniformity among member states.[18] Discussing the implications of their study, the authors suggested to leave behind the understanding of conditionality as a ‘constant factor of causation’ and rather conceptualise it as a process resulting in a variety of different outcomes based on ‘the policy area, the actors involved and the candidate country.’ [19] Building on their work, this essay suggests that if the accession process was not the ‘great equalizer’ then one must talk about DI even in the case of the complete transposition of the acquis. Other studies focusing on gender-equality institutions or environmental protection legislation has also underlined the fact, that transposing the acquis did necessarily lead to uniformity among new member states.[20]

This section has showed, how the informal arrangements and the actual implementation of the acquis has been largely neglected in the DI scholarship and argued that the acquis cannot be understood as the a generic tool of uniformity across all member states. This hidden, informal differentiation carries important implications for the future of differentiation and even the very existence of the EU.

The Lasting Impact of Informal Differentiation

The second section argues that neglecting informal arrangements has major implications for the future of the EU, and it might even have a more significant role in understanding DI than formal ‘club memberships.’ As the first section has shown, certain parts of the acquis have not been implemented (only transposed) and have not resulted in lasting change on the ground. Once again, this essay borrows from Andersen and Sitter, who have argued that the considerable variations observable in the impact of EU decisions at a national level can be the product of ‘intended or unintended consequences’.[21] This essay argues that the unintended consequences of the poor implementation of the acquis might have created an ‘excessive fragmentation of the EU polity’, which is generally overlooked.[22] The superficial implementation of the acquis carried implication for the future of differentiation as well, similarly to the scholarly discussion that emerged around the potential centipedal or centrifugal impact of (formal) DI.[23] Akin to debates around the potential lock-in effect of formal DI mechanisms (such as opt-outs), this essay argues that fears from the lock-in of informal DI is well-founded.[24]

While the scale of changes during the accession period cannot be disputed, the lock in effect of the poor implementation of the acquis in certain policy areas might have created unsurmountable differentiation between member states. In cases, when instead of actual implementation, only transposition occurred, the accession procedure locked in ‘deeper structural problems and contradictory behavioural trends.’[25] In her study, Gwendolyn Sasse analysed the impact of minority legislation and found that domestic considerations prevailed over ‘formal’ obligations in cases such as Estonia, and argued that the way conditionality was utilised potentially locked in ‘deeper structural problems and contradictory behavioural trends.[26] Analysing gender equality institutions, Ulrich Sedelmeier has found that non-compliance during the accession processes can lock-in if conditionality is ‘unsuccessful’ – that is to say, if no change is achieved on the ground.[27] This implicates that the formal unity which was achieved with the transposition of the acquis in all new member states not only created a false sense of uniformity among member states but the underlying differences, instead of diminishing and the member states converging toward the common finalité politique, might continue to exist.

Therefore, the neglected area of informal DI is seriously influencing the future shape of the EU. The seminal work of Alexander C-G. Stubb on the various categories of DI states that the multi-speed concept ‘applies to new policy areas only. That is to say, the acquis communautaire is to be preserved and developed.’[28] Other scholars have pointed to the importance of the ‘inviolable’ nature of the common body of legislation.[29] This formulation implicitly understands the acquis as something representing the single-speed nature or the uniform integration of the EU, however, the acquis is not just manifesting itself in a differentiated ways across countries and policy areas, the ‘development’ of the acquis can also face the same problem.

Analysing the transposition of directives in all EU member states, scholars have found that ‘states from Central and Eastern Europe are not doing any worse than the rest of the EU in terms of transposition timeliness.’[30] The fears about an ‘avalanche of infringement cases against the new members after accession’ proved to be unfounded as the new member states were surprisingly compliant.[31] However, as the first section has shown, transposition does not equal actual implementation. One study used the term ‘the world of dead letters’ when discussing the compliance of the majority of ‘new’ EU members, indicating a group who ‘transpose EU Directives in a compliant manner, depending on the prevalent political constellation among domestic actors, but then there is noncompliance at the later stage of monitoring and enforcement.’[32]

These issues indicate a deeper problem with the neglected area of ‘informal’ DI and its future. In the case of European integration, ‘out of sight, out of mind’ is not a fruitful principle and neglecting the existing differentiation between states might have unforeseeable consequences. This section argued that similarly to formal DI, informal arrangements can also lock-in which carry long-term consequences.


This essay shed light on the ‘informal’ aspect of DI through analysing the accession process and more specifically the implementation of the acquis as well as it limits. The first section dissected the shortcomings of the accession process and the ways in which formal transposition covered up the lack of actual change in many cases. The second section analysed the potential future impacts of this informal differentiation and argued that the continued focus on the official transposition of EU legislation only prologues the methodological issue of neglecting facts on the ground. This essay serves as a starting point for future research into the ‘informal’ aspect of DI and puts forward a research agenda that aims to go beyond the official accounts of DI. Exploring this strain of DI at the very heart of the European project may shed light on processes and developments so far unaccounted for by narratives focusing on the legal-institutional aspects of differentiation. However, understanding these processes might just be that is needed to keep differentiated integration from turning into differentiated dis-integration.

[1] Boglárka Koller. ‘Többsebességes vagy menüválasztásos jövő? ‘, in Halmai, Péter (ed.), Tagállami integrációs modellek: A gazdasági kormányzás új dimenziói az Európai Unióban (Budapest: Dialóg Campus, 2019), p. 53.; Benjamin Leruth; Stefan Ganzle; Jarle Trondal. ‘Exploring Differentiated Disintegration in a Post-Brexit European Union’, Journal of Common Market Studies 57 [6] (2019), p.1015.; Iordan Gheorghe Barbulescu and Andra-Maria Popa. ‘A Crisis of the European Model? Reflections and Projections’, in Disintegration and Integration in East-Central Europe: 1919-post-1989 (Baden-Baden, Nomos Verlagshesellschaft mbH, 2014), p. 333. [2] Richard Bellamy and Sandra Kröger. ‘A Demoicratic Justification of Differentiated Integration in a Heterogenous EU’, SSRN Electronic Journal (2017), p. 6. [3] Thomas Malang and Katharina Holzinger. ‘The Political Economy of Differentiated Integration: The Case of Common Agricultural Policy’, The Review of International Organizations 15 (2020), p. 743. [4] S. Svein Andersen and Nick Sitter. ‘Differentiated Integration: How Much Can the EU Accommodate?’ Paper for the 37th World Congress of the International Institute of Sociology, Stockholm, 5-9 July 2005 (2005), p. 4. [5] Boglárka Koller. ‘Klubtagságok az EU-ban: A differenciált integrácó gyakorlati és elméleti vonatkozásai’, Politikatudományi Szemle 21 [1], p. 43. (translation is the author’s); Kenneth Dyson and Angelos Sepos. ‘Differentiation as a Design Principle and as a Tool of Political Management of European Integration’, in Kenneth Dyson and Angelos Sepos (eds.), Which Europe? The Politics of Differentiated Integration (London: Palgrave and Macmillan, 2010), p.11. [6] Alexander C-G. Stubb. ‘A Categorization of Differentiated Integration’, Journal of Common Market Studies 34 [2] (1996), p.284. [7] Quoted in H. J. M. Fenger. ‘Welfare regimes in Central and Eastern Europe: Incorporating Post-Communist Countries in a Welfare Regime Typology’, Contemporary Issues and Ideas in Social Sciences 3 [3] (2007), p. 2. [8]Bernard Steunenberg and Dimiter Toshkov. ‘Comparing Transposition in the 27 Member States of the EU: the Impact of Discretion and Legal Fit’, Journal of European Public Policy, 16 [7] (2009), p. 966. [9] Andersen and Sitter. ‘Differentiated Integration’, p. 12. [10] Dyson and Sepos. ‘Differentiation as a Design Principle’, p. 14; Koller. ‘Klubtagságok’, p. 34. [11] Dirk Leuffen; Rittberger Berthold; and Frank Schimmelfennig. Differentiated Integration: Explaining Variation in the European Union (London: Palgrave Macmillan, 2013), p.17; Dyson and Sepos. ‘Differentiation as a Design Principle’, p.9. [12]James Hughes; Gwendolyn Sasse; and Claire Gordon. ‘Conditionality and Compliance in the EU’s Eastern Enlargement: Regional Policy and the Reform of Sub-National Government’, Journal of Common Market Studies 42 [3] (2004), p. 525. [13] Heather Grabbe. The EU’s Transformative Power – Europeanization Through Conditionality in Central and Eastern Europe (London: Palgrave Macmillan, 2006), p. 31. [14]Alina Mungiu. ‘EU Accession is No “End of History”’, Journal of Democracy 18 [4] (2007), p. 15. [15]Bernd Rechel. ‘What has Limited the EU’s Impact on Minority Rights in Accession Countries?’, EEPS 22 [1] (2008), p. 171.; Hughes, Sasse, Gordon. ‘Conditionality’, p. 526. [16] Rechel. ‘What Has Limited’, p. 183. [17] Wade Jacoby. The Enlargement of the European Union and NATO: Ordering from the Menu in Central Europe (Cambridge: Cambridge University Press, 2010), p. 17. [18] Hughes, Sasse, Gordon. ‘Conditionality, p. 542. and p. 547. [19] Hughes, Sasse, Gordon. ‘Conditionality’, p. 548. [20] Michael Baun and Dan Marek. ‘The Implementation of EU Environmental Policy in the Czech Republic: Problems with Post-Accession Compliance?’, Europe-Asia Studies 65 [10] (2013), pp. 1877-1897 [21] Andersen and Sitter. ‘Differentiated Integration’, p. 12. [22] Thierry Chopin and Christian Lequesne. ‘Differentiated as a Double-Edged Sword: Member States’ Practices and Brexit’, International Affairs 92 [3] (2016), p. 534. [23] Benjamin Leruth; Stefan Ganzle; Jarle Trondal. ‘Differentiated Integration and Disintegration in the EU after Brexit: Risks versus Opportunities’, Journal of Common Market Studies 57 [6] (2019), p. 1385. [24] Dorte Sindbjerg Martinsen and Ayca Uygur. ‘Managing Upward Transfer: On Differentiated Integration in EU Social Policy and the ‘Opt-Out’ Spiral, Department of Political Science, University of Copenhagen [manuscript], p. 9. [25]Gwendolyn Sasse. ‘The Politics of Conditionality: The Norm of Minority Protection before and after EU Accession’, Journal of European Public Policy, 15 [6] (2008), p. 842. [26] Sasse. ‘The Politics of Conditionality’, p. 855. and p. 856. [27]Ulrich Sedelmeier. ‘Is Europeanisation through Conditionality Sustainable? Lockin of Institutional Change after EU Accession’. West European Politics 35 [1] (2012), p. 20. [28] Stubb. ‘A Categorization’, p. 287. [29] Neil Walker. ‘Sovereignty and Differentiated Integration in the European Union’, European Law Journal 4 [4] (1998), p.367. [30] Steunenberg and Toshkov. ‘Comparing Transposition’, p. 951. [31]Ulrich Sedelmeier. ‘After Conditionality: Post-Accession Compliance with EU Law in East Central Europe’, Journal of European Public Policy, 15 [6] (2008), p. 807. [32]Gerda Falkner and Oliver Trieb. ‘Three Worlds of Compliance or Four? The EU-15 Compared to New Member States’, Journal of Common Market Studies 46 [2] (2008), p. 308.

Károly GERGELY, Hungarian freelance journalist and analyst based in Budapest. Károly holds a BA in Politics and Modern History from the University of Manchester and an MSc in Russian and East European Studies from the University of Oxford. A contributor to several outlets, his work focuses on populism, corruption, and the wider Central European and East European region.

Mónika MERCZ: Thank you, next! On refusing blood transfusions as a fundamental rights claim


The treatment of patients who refuse blood transfusions is always a challenge for doctors all around the world. One group in particular has become well-known for this reason: Jehovah’s Witnesses refuse transfusions of whole blood, of red and white corpuscles, platelets and plasma since 1945, when the legal organisation of leaders of the Congregation of Jehovah’s Witnesses, the Watch Tower Bible and Tract Society concluded that it was against divine law.[1] Their reasoning for refusing blood transfusions is based on their religious beliefs. “Patients, including children, who do not receive transfusions usually fare as well as or better than those who do accept transfusions. In any case, no one can say for certain that a patient will die because of refusing blood or will live because of accepting it.”[2] – goes the statement on their official website – in response to concerns arising out of their refusal of possibly life-saving treatments. In an article arguing for their viewpoint from a non-religious perspective they also hold that “the world over, more and more doctors are seeing the advantages of bloodless medicine and bloodless surgery.”[3] Whichever is the case from a medical point of view, today I would like to take a look at how religious freedom relates to the right to life and the right to health. This article is a strictly objective study about the issue, my aim is not to offend any parties to this conversation, mainly to start a discourse about the importance of all fundamental rights, the right to refuse treatment as a patients’ rights issue, and how these rights relate to each other.

Religious freedom against the right to health

Religious freedom is guaranteed on the international level through documents such as the Universal Declaration of Human Rights, Article 18[4] and Article 19.[5] In Hungary, Article VII. of our constitution, called Fundamental Law (Alaptörvény) enshrines freedom of religion as a fundamental right. This is one of the first-generation rights, just like the right to life. Therefore, it is incredibly difficult to say if one takes precedence over the other. As any refusal of blood transmission can result in the death of the patient, debates in this realm are very much also relevant to the right to life, but it is also worth mentioning how the right to health and its regulation informs these debates. The European Charter of Patients’ Rights contains provisions that have bearing on this issue, as it is clearly stated that the patient has the right to refuse a treatment or a medical intervention.[6] Therefore “the negative of accepting transfusion by Jehovah Witnesses when this is correctly indicated, in accordance to medicine precepts, attempts against their security as a patient”.[7] It is best to discuss the specifics of blood transfusion refusal with patients,[8] as a mentally competent individual has an absolute moral and legal right to refuse the consent for medical treatment or transfusion.[9]

The right to decide on individual treatment – in practice

I would like to explore what medical professionals follow in their practice, to get a look at how prevalent this issue is and how the system of healthcare rises to the challenges presented. Many internationally accepted documents including Article 5 of Council of Europe’s Convention on Human Rights and Biomedicine contains the principle of self-determination.

Article 9 of the Convention on Human Rights and Biomedicine states that “expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account”. This is especially important in this case, as Jehovah’s Witnesses carry a card with them which clearly states their wish to refuse even potentially life-saving operations if they require techniques that go against their beliefs. The medical community agrees that emergency physicians should look for evidence of an informed refusal when evaluating these documents.[10] In an emergency, a medical practitioner shall not refuse to treat a patient who refuses a blood transfusion. In cases like this the patient should accordingly be treated without administering blood, and the consequences of not receiving a blood transfusion should be explained to them, if possible.[11]

There have been such cases before the European Court of Human Rights as well. The religious community of Jehovah’s Witnesses of Moscow were dissolved for various reasons, one of which was the ‘No Blood’ card’s existence, as Russian courts decided that participation in the activities of the community had been damaging for the health of its followers because they had refused blood transfusions. The Russian courts also alleged that they band the community because they “encouraged its members to commit suicide and/or to refuse medical assistance in life-threatening situations.”[12] In this case, the complaint of Jehovah’s Witnesses about being banned was found admissible by the European Court of Human Rights.

Informed consent, of course, can be fully given by adults who have chosen not to accept such treatments. I would like to briefly touch upon the subject of children in situations where they refuse blood transmission because of religious reasons. In South Africa, a child who is over the age of 12 and has reached a level of sufficient maturity and mental capacity may consent to their own medical treatment without assistance from a parent. Children under the age of 12 need the consent of the parent to refuse such a treatment. In the UK, children under 16 years of age can legally give consent, but only if they understand the issues related to their decision.[13] Although their right to express religious belief is protected under Article 9 ECHR, there are limitations to this article. Under English law the Family Law Reform Act 1969 is applied in the case of 16 and 17 year olds.[14] The issue of consent for minors is incredibly layered. In the Netherlands for example, euthanasia of a minor of 16 years for psychiatric suffering is legal. Noa Pothoven’s case is one of the most well-known examples of a minor consenting to ending her own life. She was a 17-year old girl who had a variety of mental issues after being sexually assaulted. Her request for euthanasia had been denied, but she still committed suicide by refusing to eat and drink, a decision which was known both to her family and to professionals.[15]

However, it is clearly the everyday practice that the right to life must prevail above all else in situations where there is a serious threat to the life or health of the minor. In these cases medical treatments can be imposed by the judge declaring a temporary removal of the right to custody from the parents.[16] In these cases, children’s decisions can be overruled by the court. There have been instances where such a decision was made[17] and resulted in negating the child’s or family’s decision. The American Academy of Paediatrics recommends healthcare providers to “avoid unnecessary polarisation when conflict over religious practices arises”.[18] This issue is especially difficult as failure to give life-saving treatment to a child could render the doctor vulnerable to criminal prosecution.[19]


From the collegial work of the National Commission of Medical Arbitration, Undersecretary of Innovation and Quality, General Direction of Legal Issues of the Health Secretary, General Direction of Religious Associations of the Secretary of Governorship, National Centre of Sanguine Transfusion, National Human Rights Commission, Mexican Academy of Surgery, National Commission of Bioethics and the National Academy of Bioethics six recommendations were emitted specifically for the attention of Jehovah Witnesses’ patients.

The first one is that it is necessary to obtain an informed letter of consent. Moreover, if transfusion is considered indispensable, doctors must allow the participation of medics from the Link Committees of the Jehovah Witnesses to value other alternatives available. It is also of utmost importance not to deny the patients’ hospitalization. When doctors are unable to attend to Jehovah Witnesses’ patients without blood, medical attention must not be suspended. In case of a real emergency, the medic must preserve the life of the patient before other issues are taken into account. Finally, health institutions must promote the creation of hospital committees of transfusion medicine.

In my opinion these practices aim to respect the wishes of the patient involved, emphasizing the importance of religious freedoms while preserving the right to life. Hopefully newer and newer techniques will emerge in the medical community, making the maintaining of all related fundamental rights easier.

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3934270/ [2] https://www.jw.org/en/jehovahs-witnesses/faq/jehovahs-witnesses-why-no-blood-transfusions/ [3] https://www.jw.org/en/library/magazines/g201209/medical-alternatives-to-blood-transfusions/ [4] Every person has the right of freedom of thought, conscience and religion; this right includes the liberty to change religion or belief, as well as the freedom to manifest its religion or belief, individually or collectively, whether in public or in private, by teaching, practice, cult and observance. [5] Every individual has right of freedom of opinion and expression; this right includes not to be bothered because of his opinions, to investigate and receive information and opinions, and to spread them without limitations of frontiers, by any means of expression. [6] https://ec.europa.eu/health/ph_overview/co_operation/mobility/docs/health_services_co108_en.pdf [7]https://www.elsevier.es/en-revista-revista-medica-del-hospital-general-325-articulo-blood-transfusion-in-jehovah39s-witnesses-S0185106314000250 [8] McBrien ME, McCarroll C, Heyburn G. Who or what defines a patient’s best interests? Anaesthesia. 2007;62:413–4. [9] Rogers DM, Crookston KP. The approach to the patient who refuses blood transfusion. Transfusion. 2006;46:1471–7. [10] https://pubmed.ncbi.nlm.nih.gov/9715245/ [11]https://www.medicalprotection.org/southafrica/casebook/casebook-may-2014/the-challenges-of-treating-jehovah’s-witnesses [12] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-99221%22]} [13] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4260316/#ref14 [14] https://pureadmin.qub.ac.uk/ws/portalfiles/portal/182746725/Clayton_N_ill_EJHL.pdf [15]https://www.theguardian.com/world/2019/jun/05/noa-pothoven-netherlands-girl-not-legally-euthanised-died-at-home [16]https://eprints.ucm.es/id/eprint/55546/1/A%20Critical%20Analysis%20ECtHR%20Blood%20transfusions%202010.pdf [17] https://www.lexology.com/library/detail.aspx?g=1e0ea388-6c66-4248-8dda-f9fdacfb2ebd [18] Religious objections to medical cares. American Academy of Pediatrics Committee on Bioethics. Pediatrics. 1997;99:279–81. [19] Milligan LJ, Bellamy MC. Anaesthesia and critical care of Jehovah’s Witnesses. Contin Educ Anaesth Crit Care Pain. 2004;4:35–9.

Mónika MERCZ is a Hungarian fourth year law student at the University of Miskolc, currently in her last semester of an English Legal Translation Course. Mónika is the Secretary General of European Law Students’ Association (ELSA) Miskolc, a recipient of the National Higher Education Scholarship 2020, and is currently taking part in Aurum Foundation’s Mentoring Program. Having done several publications, her work mainly focuses on environmental law, constitutional law and data protection. She is a member of the Constitutional Discourse’s Editorial Board.