This chapter explores how the enhanced cooperation procedure interacts with the European internal market. The chapter is divided into three parts: Part I (Fundamental Freedoms) discusses the relationship between the fundamental freedoms and the differentiation established between the Member States. This part of the book focuses particularly on the question of whether or not participating Member States are allowed to protect their harmonised values by way of protective obstacles against non-participating Member States. In the case of trade liberalisation or trade-strengthening enhanced cooperation, we will explore whether the principle of reciprocity can be used to align trade-hampering effects of enhanced cooperation laws with the fundamental freedoms. Part II addresses state aid law issues. The plain wording of the EU Treaties on the prohibition of state aid may give the impression that any form of secondary EU law does not fall within its scope. Since enhanced cooperation law does not bind all Member States, state aid law has to be applied to protect competition between participating and non-participating Member States. Part III explores the compliance of enhanced cooperation law with the European acquis. A particular focus is placed on potential conflict between ordinary secondary EU law and enhanced cooperation laws.
Commission v World Duty Free Group a.o.: Selectivity in (Fiscal) State Aid, quo vadis Curia?