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Titill
en

Small Island Differentiation in EU Law

Útgáfa
September 2010
Útdráttur
en

The principle of uniformity in the application of European Union (EU) policy and law has long been institutionally asserted as one of its foundations. Referred to as the acquis communautaire, roughly translated from the French as “that which has been acquired by the Union”, it is the term for the accumulated legislation, and judicial decisions which constitute the body of EU law and to which immediate and complete compliance is requisite of incoming Member States.
The EU, also referred to as the Union, includes a multitude of Member State small islands and other islands in the Mediterranean, Baltic, North and Caribbean Seas, and in the Atlantic and Indian Oceans. With the accession of Malta and Cyprus and with Iceland’s application for accession, the EU now incorporates two, and the possibility of three, sovereign small island states. It has been recognized by various economists and by Member State declarations that small islands face unique challenges due to inherent geographical and demographic constraints including distance from the continent, isolation, small size and limited population density and therefore merit special and differential treatment to effectively function and interact on a par with larger states.
Iceland, an island with a very small population, is the least populated EU candidate nation to date. It is in the remote North Atlantic and only a small portion of its territory is considered arable. Its export base is largely based on natural resources; fisheries products and industry powered by renewable energy sources.
Notwithstanding the precept of acquis communautaire, the Lisbon Treaty contains several instances of special statuses whereby small islands are allowed accrued differentiated treatment from that afforded to other Member States. These are found in Accession Treaties and related annexes and give rise to primary and secondary law differentiation. Additionally, the Lisbon Treaty incorporates a general provision where islands in general are deemed as requiring specific consideration because of extreme natural and demographic handicaps.
This treatise examines the special statutes principally utilized by small islands under EU law and addresses the question of prime importance to Iceland and to the Icelanders: does the EU, within its current legal framework, allow derogations from acquis communautaire on the basis of being a small and remote island? Are geographical parameters such as being an island, legally acceptable arguments for differentiated treatment within EU law? Accordingly, could a debate or discussion on the premise of territorial differentiation provide the means for the establishment of special status within the EU for such countries and otherwise be used in the negotiation process as justification for these exemptions?
The essay’s objectives are: a) to assess that differentiation is in fact an integral part of the EU’s legal order; b) to deduce whether arguments for differentiation are based on small island constraints as established in pertinent and germane literature and; c) accordingly determine if a small island policy is inherent in EU policy or; d) whether one should be established.
In the paper, scrutiny of the justification utilized for support of differentiated treatment for small islands is foremost, but an analysis of the differentiation mechanism applied and its legal ramifications is also of high relevance because: a) the differentiation mechanism inherently exposes compelling examples of how flexibility is established within the treaties regardless of the general dogma of the uniformity of EU law; b) the author sees variance in the appropriateness of the differentiation instruments – primary law, secondary law or exclusions – and, consequently; c) the type of differentiation mechanism applied as one of the factors that determines whether there is, in fact, a genuine small island policy in EU law.
The scope of this research is EU law small island policy and differentiation. Its perspective is from its relevance to Iceland in its accession negotiations with the Union. The methodologies for this research are largely descriptive, in order to define the data and the characteristics of the topic, and analytical with a comparative approach in that current discussions are compared with this study’s conclusions in order to discern their commonalities and their differences.
The study begins in Section II with a summary of the legal principles that apply in EU law to the current legal framework of differentiation.
Section III is a descriptive study of the justifications for differential treatment as recognized by scholars, international institutions and the EU.
Section IV examines the legal basis and justifications for different statuses within the Treaties. In Sections V and VI, two pertinent case studies are introduced, one on the Outermost Regions and one on the Åland Islands and are provided with a comparative analysis of their differentiation mechanism and the justifications for their special status. These two were specifically selected because unlike other mentioned islands, they are fully integrated into the EU and expected to adhere to the whole of the acquis communautaire but are afforded a different status because of their small island vulnerabilities
Section VII focuses on the recently entered small island states, Malta and Cyprus. These nations were also granted various temporary or permanent differentiation exceptions from the acquis communautaire on accession. These arrangements, particularly in the case of Malta, have been justified by some scholars as considering their unique circumstances as small islands. This section examines whether small island vulnerabilities as presented in relevant publications and in this study, were the sole factor and argument in determining their special and different treatment.
Section VIII deals with the policy of Territorial Cohesion as introduced in Articles 3 TEU and 174 TFEU of the Lisbon Treaty. Its reason for existence is reviewed and whether it might be regarded as the missing link in the development of a coherent small island policy within the EU. Article 170 TFEU (ex-Article 154 TEC) on Trans-European Networks recognizes the need to link islands with the central regions of the EU. However, space and time constraints limit the extent of this review and it solely focuses on the recently added territorial cohesion feature which, up to this point, may be regarded as the clearest instance of a Treaty acknowledgment for the need to address geographic restrictions such as those of small islands.
In Section IX, the final section, the assumptions and conclusions regarding the statuses of small islands within the EU and their relevance to Iceland’s membership negotiations, deduced from this study, are summarized.
Certainly other issues have allowed Member States to adopt exemptions within EU law in relation to EU policies on a permanent basis. The Treaties have sanctioned Member State opt-outs from the Economic Monetary Union (EMU), the Social Policy and the Danish second-homes protocol and are examples where the Treaties consent to Member State permanent derogations. These politically motivated instances of differentiation have been classified by scholars and politicians in numerous ambiguous theories such as multi-speed differentiation, á-la-carte differentiation and differentiation of variable geometry. As these are examples of differentiation pursued by current Member States and each example reflects an inherently divergent legal nature and motivation, they are outside the scope of this study and are not addressed.
Accordingly, this review concentrates on the effects these various statuses have on internal markets and the ‘four freedoms’ and does not particularly address their effects on EU law regarding social, citizen or human rights.
In compiling this research, the essay builds on legal sources of a primary and secondary nature, such as the Lisbon Treaty, secondary legislation, and established case law of the European Court of Justice (ECJ) as the source of EU law, and the doctrines and literature derived from these sources. Scholars have given scant attention to the subject of this treatise so it strongly relies on reports from the Union’s institutions as a secondary source of information.

Birting
4.10.2010


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