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Observers have developed a number of interesting parallels between flexibility and the concept of subsidiarity which was included in the EU Treaties by the Treaty of Maastricht in 1993 (Shaw 1998, Wallace 2000). Like flexibility, subsidiarity finds a number of different forms in the Treaties, juxtaposing the `legal' and the `political' (De Búrca, 1999). The political statement is that now contained in Article 1 TEU, about decisions being taken as closely as possible to the citizen. Its specific legal form is to be found in Article 5 EC, where it sets out conditions to the exercise of shared competences between the Community and the Member States, including a reference to levels of appropriateness for decision-making. Flexibility meanwhile is part of the deep political penumbra of the Treaties, which comprise increasingly common differentiated solutions to the challenges of integration. In legal terms, it also has two different faces (Walker, 2000). On the one hand there is the `unplanned architectural sprawl' (Walker, 2000) of ad hoc arrangements principally for social policy (1993-97), for EMU (1993 to the present) and for matters relating to free movement, asylum and immigration (since the 1980s in respect of the Schengen Convention, but since 1999 only in respect of this newly `communitarized' policy). On the other hand, there are basic principles which are supposed to govern any future and potential flexibility within the Treaty frameworks, setting conditions on what is constitutionally tolerable (Articles 40, 43-45 TEU and Article 11 EC).
The two concepts also arguably offer languages on the basis of which ostensibly antagonistic interests can keep a conversation going, that is by providing a shared terminology into which very different meanings be invested. Thus subsidiarity can be seen as a form of advanced federalism with its prescriptions on the decentralization of power, or it can be the reassertion of the statal grab for power and a symbol of a revitalized proud nationalism. Equally, flexibility in the run up to the Amsterdam IGC was asserted as a vital principle as much by those seeking `more Europe' through enhanced cooperation within a hard core, if need be leaving behind the laggards, as it was by those such as the then UK government which wished to place a break on the whole principle of intensified integration by introducing increased `pick and choose' or `à la carte' options (De la Serre and Wallace, 1997).
However, to encompass thesw varied meanings, as well as the specific legal terms and usages highlighted here, it is necessary to deploy a wide definition of flexibility. Thus in using the term `flexibility', we are combining a number of different levels and dimensions of differentiation and fragmentation within the EU polity. For example, at a macro level we include the development of complex overlapping systems of authority, exemplified by the extra-EU evolution of Schengen, the development and transformation of the Cooperation in Justice and Home Affairs before and after the Treaty of Maastricht, and the subsequent Amsterdam-inspired Communitarization of Schengen and construction of the new Title IV of the EC Treaty on Visas, Asylum, etc. States - notably the UK, Ireland and Denmark - have moved laterally across these systems of authority as they have developed greater depth. Other examples at that level include social policy from 1993 to 1997 and EMU as it continues today, in relation to the non-participants in Euro-land and their various conditions of non-participation. Flexibility also operates within the EU, as the example of open-textured concepts such as Citizenship of the Union illustrates, where the flexibility operates in a temporal sense of ensuring `fit' and complementarity between an allegedly common Union concept and diverse national notions of citizenship.
At a more technical level in relation to the internal market flexibility has, since the date of the Single European Act, offered an outlet for national sensibilities, by allowing Member States to deviate under certain conditions from harmonized arrangements on, for example, product safety (Article 95 EC). Here there appears to be a more formal convergence of the concerns of flexibility and subsidiarity, given the need for much internal market legislation - falling within areas of shared competence - to respect the principle of subsidiarity. Indeed, it is in relation to internal market legislation - broadly defined - that the Court of Justice has so far made its limited pronouncements on the effects of the subsidiarity principle. Notably in the UK's challenge to the legal basis of the working time directive, which was based on a competence to regulate health safety matters8 and a German challenge to the adoption of a directive harmonising national laws on deposit guarantee schemes,9 the discussion by the Court does not betray any particular sensitivity to any new interinstitutional balance which the insertion of the subsidiarity requirement into the Community legislative process might have brought about (De Búrca, 1998).
If there is an emerging common agenda in the Court of Justice about the concepts of subsidiarity and flexibility, it appears to be in a general reluctance to allow these principles to fetter the judicial role. Thus, in addition to the subsidiarity case law highlighted already, in relation to flexibility the Court of Justice has shown a disinclination to allow the presence of differentiated or partial arrangements to undermine the coherence and uniformity of the legal order it has created. So it decided to classify the `law' arising when measures were adopted under the Social Policy Agreement from which the UK opted out between 1993 and 1997 as `Community law',10 and it declined an invitation from the Council not to intervene when it concluded that it has jurisdiction to consider whether a Third Pillar measure which it could not, in normal circumstances review, was unlawful because it should have been adopted under EC Treaty provisions.11 A more positive contribution to the embedding of these norms in the legal and political systems, by their invocation as underlying structural principles of that legal order is not, therefore, presently in view.
An important research agenda suggests itself as a result of these insights. For example, is it possible not only to track the discourse of flexibility through phases of decision-making, but also to pinpoint moments at which it transforms into `norm', and then at some point shifts from `the social' to `the legal'? Such work would, for example combine studies of norms as informal resources that are influential in various policy sectors (Lenschow and Zito 1998, Marcussen et al 1999) as well as research on compliance with norms (Zuürn and Wolf 1999). What sort of future do we envisage for flexibility in the Court of Justice? Is it limited to the fixing of the boundaries of differentiated decisions, or will it be elevated to the status of a more general interpretative principle along the lines of the notion of `institutional balance'? A major new research field which will prove crucial to the formation and role of the flexibility principle will be policy areas that are covered or touched by the Schengen Implementation Agreement (Hailbronner and Thiery 1997), such as, for example, research on asylum policy, visa policy, and policing.
8 Case C-84/94 UK v. Council [1996] ECR I-5755.
9 Case C-233/94 Germany v. Parliament and Council [1997] ECR I-2405.
10 Case T-135/96 UEAPME v. Council [1998] ECR II-2335.
11 Case C-170/96 Commission v. Council (Air Transport Visas) [1998] ECR I-2763.
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