Translation by:Morag Young
Enhanced co-operation is legally codified in the treaties of Amsterdam and Nice. After analysis, does the end matter more than the means?
The Brussels summit was a dead end. However, it will at least have re-launched the debate over the creation of a so-called ‘hard core’ of Member States in a Europe whose consensual mechanisms risk being jammed when it welcomes 10 new members. Historically, a ‘two-speed’ Europe has long been a fact of life in the Community, a fact illustrated in particular through some shining achievements (EMU, the Schengen agreement and the Social Protocol), and a legal tool, enhanced co-operation, which was introduced in the Treaty of Amsterdam and honed, before even being introduced, in the Treaty of Nice. Is this enhanced co-operation, on a legal level, capable of becoming the infamous ‘miracle’ which will allow the decision-making ability of the Union to be strengthened and for it to progress in terms of integration?
Enhanced co-operation could potentially be exploited to strengthen the Council’s decision-making ability. In particular, where an impasse is reached in areas requiring unanimity – and this is where enlarging to 25 is most problematical – States wanting to move forward will be able to ask the Council for permission to undertake enhanced co-operation. The Council will then rule under the terms of qualified majority voting. Besides the fact that this mechanism will allow the obstacle of unanimity to be overcome, it is also an obvious incentive for more reticent States to soften their positions to avoid finding themselves excluded from co-operation. In this respect, you would be justified in analysing recent declarations as much as signals destined to reinforce the credibility of this risk for the future.
The real range of this incentive is nevertheless limited by the fact that a Member State can decide from the beginning to participate in enhanced co-operation (no capacity criteria currently being foreseen) and then to exert its ‘nuisance’ power from within, for example when unanimity is required as co-operation must respect ‘the single institutional framework of the Union’, the legal base on which the institutions must be based in order to adopt a measure. In consequence, procedures and voting methods are the same within enhanced co-operation as they are within the Union. It is therefore impossible, within co-operation, to vote through qualified majority when the treaty usually requires unanimity. This principle of mimicry is a serious limitation of the flexibility of co-operation. On the other hand, the Constitutional project that stemmed from the Convention relaxed the co-operation system by allowing States who participate to modify voting forms. With regard to its field of implementation, the Treaty foresees, among other things, that co-operation must remain within the limit of non-exclusive competencies, that is to say competencies shared between Member States and the Union or the Community. Such a formula seems restrictive, in particular with regard to the alternative which would have been a reference to the ‘objectives’ and not to the ‘competencies’ of the Union. It is therefore not possible to implement co-operation in areas where the Community does not today dispose of any legal competencies even if such co-operation could serve the objectives of the Union.
The Constitution goes further
Co-operation may not be the subject of particular restrictions in the first and third pillars, (‘Community’ for the first one and intergovernmental relating to justice and internal affairs for the other). However, it is strictly limited to the implementation of common actions or positions within the framework of the second pillar (intergovernmental relating to common foreign and security policy, CFSP). Moreover, it cannot be used on issues with military implications or in the area of defence. Thus, in the second pillar co-operation reveals itself to be more about the mandate of execution than offering a real opportunity to pursue the integration route, which is to be regretted inasmuch that the second pillar without a doubt needs to be deepened. And indeed the members of the Convention seem to have shared these concerns since the Constitutional project abandoned these restrictions in article III-325.
To conclude, it can be remarked that the Nice treaty wanted to facilitate the creation of so-called ‘pioneer’ groups by bringing the minimum threshold of States required to create co-operation down to eight, whereas the Amsterdam treaty required a majority. For the reasoning considered above, this modification is insufficient or regrettable: insufficient if you consider that co-operation is a sub-systemic integration tool which is not really cut out to be expanded to all States and whose optimal numbers of participation could very well be less than eight. It is regrettable if you see it in terms of avant-garde reasoning where co-operation has a training effect. The majority condition therefore seems preferable, even more so because it removes the risk of concurrent co-operation. The important thing is to note that enhanced co-operation offers an imperfect response to the concerns rekindled by the Brussels summit. If they are a source of welcome flexibility in an enlarged Europe, their effects still remain to be discovered. In the short term, their trump card could be to help overcome impasse within the Council where certain States seem more attached to their ability to block than implementing an effective decision making process.
Translated from La loi des pionniers