Many believe that we live in a European Union, where part of competences of national States have been voluntarily transferred to the EU, who sets the rules and should enforce them, ultimately through a judicial system, the Court of Justice.
In fact over the years, exceptions to the common rules have been admitted formally or, even worse, informally. The debate over a differentiated integration started (by coincidence?) soon after the UK joined the European club. The ‘Tindemans’ report (1975) evoked the possibility of a ‘Europe à deux vitesses’, regarding the economic and monetary union. Later the Amsterdam Treaty (1997) created, for the first time, a formal framework (the enhanced cooperation) for the development of the European Union, as an asymmetrical form of political organization in which some of the member states participate more than others.
The European Council endorsed this differentiated reality with an original interpretation: the commitment to an “ever closer Union”, enshrined in the Treaty on the European Union, “allows for different paths of integration for different countries, allowing those that want to deepen integration to move ahead, while respecting the wish of those who do not want to deepen any further”.
There is no doubt that the differentiated integration has been a win-win approach, breaching the deadlock of important decisions (ie Euro, Schengen or Justice and home affairs). It is also true that an escape clause exists in some federal constitution (Canada, Germany).
The differentiated integration touches as well the core of the European integration, Single market, EMU, Home and Justice and the external relations, in particular security. In some cases, we face a functional asymmetry in others more a political one. Academic literature explains and categorizes the various types of differentiation, but my question is up to what limit an efficient, effective and legitimate asymmetric EU can be accepted? Or whether could a clear differentiation of structures contribute to the re-launch of the European project?
European Union implies common rules and their respect for the enforcement of the Court of Justice, but in many cases the respect of rules seems submitted to a political evaluations (ie the respect of Fiscal compact) or simply to the incapacity of the Commission to oblige the Member States to comply with decisions (ie repartition of migrants). The non-uniform respect of rules, the lack of solidarity between the Member States and the general mistrusts increase the doubts that Union doesn’t mean Union.
There are about 30 exceptions to the common rules. The asymmetric EU is even more confusing for the public opinion and probably one of the causes of disaffection and disillusion of the Europeans project.
Further to that, the outcome of the British referendum proves that offering exceptions to many core policies is not sufficient to preserve the Union and it could constitute an encouragement to ask more opt-outs with the clear risk to lose the ‘big picture’ and accelerate the disintegration process.
Is there an alternative to the opt-out approach? Several ideas and proposals have been advanced over years, the current crisis creates a sense of urgency to introduce some important changes to revive the European project.
There is no originality to say that MS of the Eurozone (including the pre-ins) have a degree of cohesion, a political willingness and an economic interest to stay and develop an ‘ever closer union’ with a set of shared values: ie four freedoms (free movement of goods, persons, services and capitals), the euro and its governance, a full fiscal capacity, security to its borders, management of transnational problems as migration, a fiscal capacity to make the Euro stronger, its own budget with high level of conditionality. This should constitute the first circle (European Union)
The second circle (European Communities) should concentrate some of the current opt-out, plus eventually others, with clear and separate rules and reduced benefits and with a higher level of conditionality.
The third circle (Continental Partnership) mainly regulating the external relations could include a wider group with special neighboring relations (i.e. UK, Turkey).
No change to the current Treaty to cover the first circle, while the second and third should be defined in terms of contents and legal form. A new European Union, with less but exclusive competences, with Institutions, adapted to the new geometry and clear rules for the second and third circle.
To conclude more than continuing with exceptions, and exceptions to the exceptions, European Leaders should take the opportunity of the British (quasi) decision to leave the EU, to clarify the structure, competences of the new multi-level Europe with clear definition of duties and rights, just the contrary of ‘à la carte’ approach which seems to inspire the multiple opt-outs. The final aim being that Union means Unions for all MS are in the first circle, with no exceptions.
 Conclusions of the European Council 27 June 2014
 Continental Partnership term used by a Study of the Brueghel Institute on Europe after Brexit: A proposal for a continental partnership, 2016 http://bruegel.org/2016/08/europe-after-brexit-a-proposal-for-a-continental-partnership/
 Conclusions of the European Council 27 June 2014Author : European pratictioner and researcher