Variable Geometry and International Relations Within the Matrix of the AFSJ: A Practice-Based Case Study of Opting-In and Out in EU-US Relations

Abstract

The extensive legal flexibility accorded to the UK and Ireland in respect of the Area of Freedom, Security, and Justice in the Treaty of Lisbon was considered to threaten the legal coherence of the Union considerably. The flexibility was unique in many respects, not least for its broad application, its two-way “opt out and opt in” character, and its relationship to the Transitional Provisions, providing for further constitutional conditionality. One of the manifestations of flexibility is in the area of the external Area of Freedom, Security, and Justice (AFSJ) in transatlantic relations. While flexibility has functionally formed part of several agreements between the EU and US to date, it has not impacted ostensibly upon legal coherence of EU external action in transatlantic relations. Flexibility does not appear to have complicated the negotiation of transatlantic agreements, and does not appear to have stalled evolution of the EU’s global objectives, or the deepening proximity between the EU and US legal orders.The account assesses the practical effects so far of the British, Irish, and to a much lesser extent, the Danish Protocols; whereby variable geometry in the AFSJ is examined on the basis of the practice that has developed in the last years since the Treaty of Lisbon. The paper also considers in detail their impact upon the international relations agreements of the EU, particularly their operation in the specific case of EU-US relations. The paper examines firstly the key legal provisions shaping variable geometry in the AFSJ; followed secondly by an analysis of the provisions for parliamentary scrutiny of these provisions in a domestic context in the UK and Ireland. Third, the operation of scrutiny provisions in the area of Transatlantic Relations is considered in Ireland and the UK; followed fourthly by an assessment of the external implications of variable geometry for the negotiation of international agreements; and fifthly by the practical consequences for pre-Lisbon Agreements of a UK “mass” opt-out.