How can Member States advance without being held back by less integrationist countries? Articles 43 to 45 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) offer the possibility for a group of states to establish enhanced cooperation between themselves within the institutional framework of the EU (EC).
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
A presentation of the Union’s external action will follow.
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007