Differentiated integration as symbolic politics? Constitutional differentiation and policy reintegration in core state powers
| Author | Philipp Genschel,Markus Jachtenfuchs,Marta Migliorati |
| DOI | http://doi.org/10.1177/14651165221128291 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Differentiated integration
as symbolic politics?
Constitutional
differentiation and policy
reintegration in core state
powers
Philipp Genschel
Department of Social Sciences and Humanities, Jacobs University
Bremen, Bremen, Germany; Faculty of Social Sciences,
University of Bremen, Bremen, Germany
Markus Jachtenfuchs
Jacques Delors Centre, Hertie School, Berlin, Germany
Marta Migliorati
Institute for European Studies, University of Malta, Msida, Malta
Abstract
What are the policy consequences of constitutional differentiation in core state powers?
We argue that the most important consequence is not necessarily the exclusion of
the constitutional outs from the policies of the ins, but their reintegration by different
means. The outs often have strong functional and political incentives to re-join the pol-
icies they opted out from, and the ins have good reasons to help them back in. We
develop a theoretical framework that derives the incentives for reintegration from
the costs of a policy exclusion. We use a novel dataset of reintegration opportunities to
map trends and patterns of reintegration across policy fields and member states. We
analyze selected cases of reintegration to probe the plausibility of our theoretical
argument.
Corresponding author:
Markus Jachtenfuchs, Jacques Delors Centre, Hertie School, Friedrichstr. 180, 10117 Berlin, Germany.
Email: jachtenfuchs@hertie-school.org
Article
European Union Politics
2023, Vol. 24(1) 81–101
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14651165221128291
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Keywords
Core state powers, differentiated integration, European Union, symbolic politics
Constitutional differentiation and policy reintegration
The Post-Maastricht era has been characterized by two broad trends, the rise of differen-
tiated integration (Leuffen et al., 2013) and the increasing involvement of European
Union (EU) institutions in core state powers (Genschel and Jachtenfuchs, 2016).
Both trends are related. As the EU claimed authority over core functions of sovereign
government –money, defence, foreign policy, migration, internal security –some par-
ticularly sovereignty-minded member states were granted formal opt-outs to allow inte-
gration to proceed.
Opt-outs were not a new policy instrument. Since the early years of integration, new
and/or poor member states were regularly granted temporary exemptions from selected
EU policies to build up the requisite capacity for implementation. The opt-outs in core
state powers, by contrast, responded to postfunctional concerns of identity and sover-
eignty rather than functional concerns of governance-capacity and efficiency. They
were constitutional rather than instrumental, and they were permanent rather than tem-
porary (Schimmelfennig and Winzen, 2020).
High hopes have been pinned on constitutional differentiation (European
Commission, 2017; Schimmelfennig et al., 2023). Some claim it increases efficiency
by reducing intergovernmental conflict, improving decision-time, and helping tailor
EU policies to heterogeneous national preferences (Alesina et al., 2005). Others highlight
how differentiation increases legitimacy by protecting member states from EU domin-
ation and interference in key policy fields (Bellamy, 2019; De Blok and De Vries,
2023; Schraff and Schimmelfennig, 2020). Whether and to what extent these hopes are
borne out depends on the policy effects of constitutional differentiation on the ground.
What difference does it make for ins and outs?
The answer may seem obvious: the outs are excluded from the policies of the ins. This
is the key assumption behind the efficiency and legitimacy arguments in favour of con-
stitutional differentiation, and one of the key claims of the most important empirical
research in the field (Duttle et al., 2017; Schimmelfennig and Winzen, 2020). Yet, as
we argue in this article, this claim is wrong. We show empirically that constitutional dif-
ferentiation does not always imply full and lasting policy exclusion and explain theoret-
ically why the outsiders have various instruments of reintegration at their disposal and
often use them. We define reintegration as the effective inclusion of a member state
into a field of EU policy-making from which it is formally excluded by a constitutional
opt-out.We distinguish three main instruments of reintegration:
(1) Reintegration by default makes the practical application of an opt-out contingent
on conditions that are not presently met. For instance, the application of the Danish
constitutional opt-out from Justice and Home Affairs (JHA) of 1992 was premised
on the introduction of qualified majority voting to that field. Hence, Denmark
82 European Union Politics 24(1)
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