(34) EU Constitutional Law
COMPETENCES OF THE EU
Exercise of the Union’s competences by a limited number of Member States: the enhanced co-operation procedure
The possibility for some Member States to establish closer co-operation between themselves, through the Community institutions and procedures, had been introduced by the ToA, and is known as “enhanced co-operation”. The IGC, revising the ToA, decided that the conditions triggering enhanced co-operation needed substantial amendment. The ToA limited the use of enhanced co-operation to matters dealt with in Pillar 1 and in Pillar 3 (matters concerning police and judicial co-operation in criminal matters), imposed strict conditions for its use, and gave the right of veto to every Member State, even if that Member State did not wish to participate. Under the ToA the procedure was never used. The ToN profoundly revised the enhanced co-operation procedure in order to make it more attractive to Member States. The ToL has further reformed the procedure. Provisions relevant to enhanced co-operation are contained in Title IV of the TEU and Title III of Part Six of the TFEU.
In order to understand the implications of enhanced co-operation, a distinction must be made:
A. Between co-operation among Member States within the institutional framework of the EU and outside that framework. With regard to the latter, each Member State, being a sovereign state, can enter into any international agreement with any other state, including another Member State, provided that such an agreement neither undermines the EU’s objectives, nor compromises that Member State’s obligations stemming from its membership of the EU. Examples of such agreements, which involve only a limited number of Member States, are: the agreement creating Eurocorps, and that creating the European Space Agency. The Treaties themselves allow for such agreements, e.g. Article 350 TFEU states that the Treaties shall not preclude the existence or completion of the Benelux Union in so far as the objectives of the Benelux Union are not attained by application of the Treaties.
B. Between co-operation within the institutional framework of the EU which is “pre-defined” or “pre-determined” and enhanced co-operation as described in the ToL. “Pre-defined” or “pre-determined” co-operation within the institutional framework of the EU refers to a situation where the Treaties, a Protocol attached to them or secondary legislation set out rules and procedures for participation, or allow a Member State to “opt-out” of being a participant in that form of co-operation. The best examples are participation in the EMU, the Schengen acquis, or under Articles 114(4) and (5) TFEU, which allow a Member State to deviate from the application of EU law for certain specified reasons, in accordance with certain procedures. Enhanced co-operation refers to a situation where co-operation is not “pre-determined” or is pre-determined to a lesser degree. Thus, a group of Member States may be allowed to co-operate in certain permissible areas, but the manner in which they intend to co-operate and the details of arrangements they intend to enter into, still have to be addressed in the act establishing the co-operation. Further, under Article 20(4) TFEU acts adopted within the framework of enhanced co-operation do not form part of the EU acquis.
At the time of writing the mechanism of enhanced co-operation has never been triggered.
Enhanced co-operation is a mixed blessing. On the one hand, it introduces flexibility into the workings of the EU, as it allows co-operation among groups of Member States, as against amongst all Member States, on some projects, and on the other hand, it threatens the coherence of the EU. The danger is that enhanced co-operation allows for differential integration, that is, instead of all Member States moving towards the achievement of the EU’s objectives at the same speed, some of them are allowed to move faster, and consequently some of them may never catch up. Further drawbacks are those of complexity and fragmentation of the EU’s legal order. Having said this in a Union of diverse members, diverse approaches may be seen as appropriate.
The main features of the enhanced co-operation procedure
They are:
The TOL recognises the possibility of instituting enhanced co-operation in all areas of competences of the EU including the CFSP and within the CFSP the CSDP apart from areas in which the EU enjoys exclusive competences. Those are listed in Article 3 TFEU; Article 20 TEU provides that enhanced co-operation should further the objectives of the Union, protect its interests and reinforce its integration process whilst Article 326 TFEU states that the procedure must not undermine the internal market or the EU’s economic, social and territorial cohesion; must not constitute a barrier to or discrimination in trade between the Member States and must not distort competition between them. Under Article 327 TFEU any enhanced co-operation must respect the competences, rights and obligations of non-participating Member States;
Article 20(1) TEU specifies that enhanced co-operation may be undertaken only as a last resort, that is, when it has been established within the Council that the objectives of such cooperation cannot be achieved within a reasonable period by applying the relevant provisions of the Treaties;
Article 328 TFEU requires that when enhanced co-operation is being established, it should be open to all Member States, at any time, provided that the Member State that wishes to participate complies with decisions taken within the established enhanced co-operation framework. The Commission and the participating Member States shall ensure that as many non-participating Member States as possible are encouraged to take part; Article 20(4) TFEU provides that acts adopted within the framework of enhanced cooperation do not form part of the EU acquis;
Acts adopted within the framework of enhanced co-operation shall be applied by the participating Member States and their implementation shall not be impeded by nonparticipating Member States;
In respect of enhanced co-operation which is in progress and which does not have military or defense implications, the Council acting unanimously may adopt a decision, stipulating that it will act by QMV where the Treaty stipulates that the Council shall act unanimously (Article 333 TFEU). The only constraint imposed on the Council is that it must consult the EP;
Once enhanced procedure has been established, only participating Member States are entitled to vote in the Council on matters relating to that particular co-operation although all Members of the Council may take part in deliberations; Under Article 332 TFEU expenditure resulting from enhanced co-operation, other than administrative costs, shall be borne by the participating Member States, unless the Council acting unanimously, after consulting the EP, decides otherwise; Article 334 TFEU requires that the Council and the Commission ensure the consistency of activities decided upon within the framework of enhanced co-operation with other policies and activities of the EU.
The ToL’s main innovation so far as enhanced co-operation is concerned is that it provides differing rules for the establishment of, and the participation in, enhanced co-operation in progress, depending on the policy areas. It establishes a general procedure in Article 329(1) TFEU and specific procedures in respect of three areas: the CFSP, the AFSJ and the CSDP.
General procedure for enhanced co-operation
Interested Member States (at the minimum, nine) are required to address a request to the Commission specifying the scope and objectives of their intended enhanced co-operation. The Commission may either submit a proposal for approval to the Council or may refuse to do this in which case a reason for refusal should be given. If the Commission decides to submit the proposal, the Council acting by QMV may grant authorization to proceed after obtaining the consent of the EP.
With regard to any enhanced co-operation which is in progress, an interested Member State is required to notify the Commission of its intention to join. The Commission within four months of the date of receipt of the notification may, either confirm the participation of the Member State concerned, or decline the request in which case it should indicate arrangements to be adopted which would satisfy the conditions for participation and set a deadline for re-examining the request. On the expiry of that deadline, the Commission must re-examine the request. If the Commission still considers that the conditions for participation have not been fulfilled by the Member State concerned, it must forward the request to the Council which will take a final decision (Article 332 TFEU).
Enhanced co-operation in the CFSP
Under Article 329(2) TFEU, Member States (at a minimum, nine) may submit a request directly to the Council for authorization to commence enhanced co-operation. The Council, after receiving an opinion from the HR on whether the enhanced co-operation is consistent with the EU’s CFSP and from the Commission on its compatibility with other Union policies, acting unanimously, may give authorization to proceed. The EP is only informed of the request. An interested Member State is required to notify its intention to join any enhanced co-operation which is in progress to the Council, the HR and the Commission. However, only the opinion of the HR will be taken into account by the Council when it decides, by unanimity, on that Member State’s participation. However, if the Council refuses the request it must indicate the arrangements to be adopted to fulfill the conditions for participation and set a deadline for reexamining the request.
Enhanced co-operation in the area of FSJ
The establishment of enhanced co-operation among at least nine Member States based on draft directives concerning police and judicial co-operation in criminal matters (Article 82(3) TFEU) or on directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crimes with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis (Article 83(3) TFEU) involves only a notification to the EP, the Council and the Commission. No authorization from the Council is required. The relaxed rules are justified by the fact that the adoption of a draft directive has been either suspended or blocked at the initiative of a Member State which has pulled the “emergency brake”, i.e. decided that the adoption of the proposed measure would affect fundamental aspects of its criminal justice system.
Enhanced co-operation in the CSDP
There are the following types of enhanced co-operation in the CSDP.
Permanent structured co-operation
Under Article 42 TEU, “permanent structured co-operation” can be established by “those
Member States whose military capabilities fulfill higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions”. There is no minimum threshold fixed in terms of the number of participating States (Article 46 TEU).
The participation of Member States in missions outside the EU
The EU may use Member States to carry missions outside the EU for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter (Article 46 TEU).
Co-operation within the framework of the European Defense Agency
Co-operation between Member States wishing to be part of the European Defense Agency will be defined by the Council which will adopt, acting by a qualified majority, a decision defining the Agency’s statute, seat and operational rules (Article 45(2) TEU).
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