Postfunctional differentiation, functional reintegration: the Danish case in Justice and Home Affairs

Abstract

Previous research shows that Differentiated Integration (DI) in areas of core state powers works according to a postfunctional logic, in response to concerns about national autonomy and sovereignty. Against this backdrop, scholars usually expect that the policies and practices ensuing from formal DI are equally differentiated. This article presents theoretical and empirical evidence to suggest otherwise. It argues that, while postfunctionalism explains the emergence of formal DI, its practical consequences are driven by functional pressures. The interdependencies produced by the integration process create functional incentives for states with opt-outs to work towards 'reintegration' by converging with EU policies. The result of this process is a decoupling between differentiated rules and similar practices. The plausibility of this argument is tested by applying process tracing techniques to the case of Denmark in Justice and Home Affairs.

Differentiated integration in the European Union: Institutional effects, public opinion, and alternative flexibility arrangements

“…To compensate for the resulting inefficiency of these "functionally false negatives", insiders and outsiders then seek informal or ad hoc arrangements that straddle the legal divide but typically increase transaction costs and underprovide collective goods. The Danish opt-outs from the European Monetary Union or Justice and Home Affairs arguably fit this pattern (Migliorati, 2022). In other cases, member states were admitted to the insider group in spite of capacity deficits.…”

Differentiation in the European Union and beyond

“…A differentiated polity is one that does not exert uniform authority within its borders, and where at least one constituent unit has a formal arrangement that allows it to opt out of a common policy (Hooghe and Marks, 2016: 53, 101; Migliorati, 2022: 1112; Schimmelfennig and Winzen, 2014: 356). 1 Conceived in this way, differentiation is a phenomenon that can arise in any system of governance.…”

Cascading opt-outs? The effect of the Euro and migration crises on differentiated integration in the European Union

“…The Danish referendum of December 2015 could have been affected by the crisis but was about reconfiguring rather than abolishing the opt-out (e.g. Migliorati, 2022). Bulgaria, Cyprus and Romania remain excluded from the Schengen area for reasons that date back to before the crisis and that are not related to migration primarily (e.g.…”