Enhanced cooperation

In the European Union (EU), enhanced cooperation is a procedure where a minimum of nine EU member states are allowed to establish advanced integration or cooperation in an area within EU structures but without the other members being involved. As of December 2012 this procedure is being used in the field of divorce law, is approved for the field of patents and proposed for a EU financial transaction tax.

This is distinct from the EU opt-out, that is a form of cooperation between EU members within EU structures, where it is allowed for a limited number of states to refrain from participation (e.g. EMU, Schengen Area). It is further distinct from Mechanism for Cooperation and Verification and permanent acquis suspensions, whose lifting is conditional on meeting certain benchmarks by the affected member states.

History

Enhanced cooperation was introduced by the Treaty of Amsterdam for community, judicial cooperation and criminal matters. The Treaty of Nice simplified the mechanism and forbade opposition to the creation of enhanced cooperation. It also introduced cooperation for the Common Foreign and Security Policy, except for defence matters. The Treaty of Lisbon extended cooperation to include defence and additionally envisions the possibility for establishment of a permanent structured cooperation in defence.

The Schengen Agreement adoption is considered a historical inspiration for formalizing the mechanism of Enhanced cooperation. It was created by European Communities member states only, but outside of its structures, in part owing to the lack of consensus amongst all members over whether it had the competence to abolish border controls, and in part because those ready to implement the idea did not wish to wait for others. As there was no Enhanced cooperation mechanism back then it was impossible to establish it inside the Community structures from the start, but afterwards the Schengen Agreement was subsumed into European Union Law by the Treaty of Amsterdam as the rules of the Schengen Area. With its integration into general EU law it was transformed from a precursor Enhanced cooperation into an opt-out.

Usage

Enhanced cooperation allows for a minimum of nine member states (which amounts to one-third at the moment) to cooperate within the structures of the EU without all member states. This allows them to move at different speeds, and towards different goals, than those outside the enhanced cooperation area. It is designed to overcome paralysis, where a proposal is blocked by the veto of an individual state or a small group who do not wish to be part of the initiative. It does not however allow for an extension of powers outside those permitted by the treaties of the European Union and is only allowed as a last resort where objectives cannot be achieved normally. It may not discriminate against members, it must further the objectives in the treaties and may not fall within an area which is of exclusive competence of the EU.

The mechanism needs a minimum of one third of Member States (nine of the twenty-seven in 2010), who file a request with the European Commission. If the Commission accepts it then it has to be approved by a qualified majority of all member states to proceed. A member may not veto the establishment of enhanced cooperation except for foreign policy.

Divorce law

Main article: European Union Divorce Law Pact

The 15 states working on divorce law cooperation in gold. Non participants in blue.

With the rise in cross border divorce in the EU, common rules were put forward to settle the issue of where trans-national couples can divorce in the EU. However Sweden blocked the new rules, fearing the loss of its liberal divorce law (divorce law differs strongly, with Nordic liberalism being in contrast to more conservative countries such as Malta which has only recently permitted it). In order to allow those willing states to proceed without Sweden, in July 2008 nine countries put forward a proposal to use enhanced cooperation: Austria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain. Belgium, Germany, Lithuania and Portugal were considering joining them.

At a meeting of the justice ministers on 25 July 2008, the nine states decided to formally seek the measure of enhanced cooperation; eight states (the nine states above minus France) formally requested it from the European Commission on 28 July 2008. On 24 March 2010, when the law was formally proposed by the commission, Bulgaria was the tenth state to join the aforementioned eight and France. Belgium, Germany and Latvia formally joined them on 28 May 2010, while Greece withdrew.

MEPs backed the proposal in June 2010 with fourteen states willing to adopt enter the proposed cooperation: Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. These states were then authorised by the Council to proceed with enhanced cooperation on 12 July 2010. Following the adoption of Council Regulation (EU) No 1259/2010 on 20 December 2010, the new law, known as the Rome III Regulation, are set to come into force in the 14 participating states on 21 June 2012. Other EU Member state are permitted to sign up to the pact at a later date. Lithuania became the first state to join the agreement when they were approved by the Council on 21 November 2012. The provisions of the agreement will apply to Lithuania as of 22 May 2014.

Proposals

European Union patent

Main article: European Union patent

  EU patent participants

  other EU members

The EU patent, specifically a "European patent with unitary character", is the second case of enhanced cooperation to be approved by the European Commission. Towards the end of 2010 twelve states proposed to use it to work around disagreements with Italy and Spain over what languages a common EU Patent would be translated into. The unitary patent would be examined and granted in one of the existing official languages of the European Patent Organisation – English, French or German. 25 Member States, all except Italy and Spain, will join the proposal. Following the Commission approval of the plan on 14 December 2010, the Council of the European Union requested the European Parliament's consent to use of enhanced cooperation for a unitary patent on 14 February 2011 with the participation of 25 member states (all but Italy and Spain). The Parliament approved it the next day and the Council authorized Enhanced cooperation on 10 March 2011. On 13 April 2011 the Commission adopted a proposal for an implementing Council Regulation (COM(2011)216 final). Italy and Spain might drop their opposition to the proposal. During the European Council of 28–29 June 2012, agreement was reached on the provisions between the 25 member states and the necessary EU-legislation was approved by the European Parliament on 11 December 2012 with an entry into force date on or after 1 January 2014.

Financial transaction tax

Main article: European Union financial transaction tax

After discussions to establish a European Union financial transaction tax (FTT), which would tax financial transactions between financial institutions, failed to establish unanimous support due objections from the United Kingdom and Sweden, a group of states began pursuing the idea of utilizing enhanced cooperation to implement the tax. Nine states (Austria, Belgium, Finland, France, Germany, Greece, Italy, Portugal and Spain) signed a letter in February 2012 requesting that a FTT be implemented. After their parliamentary election in March 2012, Slovakia joined the list of states supporting the FTT. On 16 July 2012, Hungary introduced a unilateral 0.1 percent FTT to be implemented in January 2013. In October 2012, after discussions failed to establish unanimous support for an EU-wide FTT, the European Commission proposed that the use of enhanced cooperation should be permitted to implement the tax in the states which wished to participate. The proposal, supported by 11 EU member states (Austria, Belgium, Estonia, France, Germany, Greece, Italy, Portugal, Slovakia, Slovenia and Spain), was approved in the European Parliament in December 2012 and the Council in January 2013. The formal agreement on the details of the FTT still need to be decided upon and approved by the European Parliament.

Other arrangements between European Union members

Prüm Convention

The Prüm Convention, a treaty for cooperation in criminal matters signed on 27 May 2005 by Germany, Spain, France, Luxembourg, Netherlands, Austria, and Belgium, was adopted not per the Enhanced cooperation procedure (and outside of EU structures), but it asserts European Union law takes precedence over its provisions (if they are incompatible) and that it is open to accession for any member state of the EU. Part of its provisions were later subsumed into European Union law by the Prüm Decision of 2008.

Euro Plus Pact

The Euro Plus Pact is an arrangement for cooperating in economic measures adopted on 25 March 2011 by the European Council through the Open Method of Coordination and includes as participants the Eurozone member states, Bulgaria, Denmark, Latvia, Lithuania, Poland and Romania.

European Fiscal Compact

  EFC Participants members of the Eurozone

  EFC participants not members of the Eurozone

  other EU members

The European Fiscal Compact is an intergovernmental treaty dealing with fiscal integration that was signed by all of the member states of the European Union (EU) except the Czech Republic and the United Kingdom on 2 March 2012. Although the European Fiscal Compact was negotiated between member states of the EU, it is not formally part of European Union law. It does, however, contain a provision to attempt to incorporate the pact into the Treaties establishing the European Union within 5 years of its entering into force. The treaty entered into force on 1 January 2013 for the 16 states which had completed their ratification.

Other proposed arrangements between European Union members

European Defence Initiative

The European Defence Initiative was a proposal for enhanced European Union defense cooperation presented by France, Germany, Belgium and Luxembourg in Brussels on 29 April 2003, before the extension of the coverage of the enhanced cooperation procedure to defense matters.

Permanent Structured Cooperation in Defence

The Treaty of Lisbon added the possibility for those members 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 shall establish permanent structured cooperation within the EU framework (PSCD).

Those states shall notify their intention to the Council and to the High Representative. The Council then adopts, by qualified majority a decision establishing permanent structured cooperation and determining the list of participating Member States. Any other member state, that fulfills the criteria and wishes to participate, can join the PSCD following the same procedure, but in the voting for the decision will participate only the states already part of the PSCD. If a participating state no longer fulfills the criteria a decision suspending its participation is taken by the same procedure as for accepting new participants, but excluding the concerned state from the voting procedure. If a participating state wishes to withdraw from PSCD it just notifies the Council to remove it from the list of participants. All other decisions and recommendations of the Council concerning PSCD issues unrelated to the list of participants are taken by unanimity of the participating states.

The criteria established in the PSCD Protocol are the following:

• cooperate and harmonize requirements and pool resources in the fields related to defense equipment acquisition, research, funding and utilization, notably the programs and initiatives of the European Defence Agency (e.g. Code of Conduct on Defence Procurement)
• capacity to supply, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport (airlift, sealift) and logistics, within a period of five to 30 days, in particular in response to requests from the United Nations Organization, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.
• capable of carrying out in the above timeframes the tasks of joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation

As of October 2010 there is no announcement for PSCD establishment.

Table

country	cooperations organized by a subset of EU member states
	European Defence Initiative	Prüm Convention	Divorce law	EU patent	Euro Plus	Fiscal Compact	Financial transaction tax
Austria		X	X	O	X	X	O
Belgium	O	X	X	O	X	O	O
Bulgaria		X	X	O	X	O
Cyprus				O	X	X
Czech Republic				O
Denmark				O	X	X
Estonia		X		O	X	X	O
Finland		X		O	X	X
France	O	X	X	O	X	X	O
Germany	O	X	X	O	X	X	O
Greece		O	O	O	X	X	O
Hungary		X	X	O		O
Ireland				O	X	X
Italy		O	X		X	X	O
Latvia			X	O	X	X
Lithuania			X	O	X	X
Luxembourg	O	X	X	O	X	O
Malta			X	O	X	O
Netherlands		X		O	X	O
Poland				O	X	O
Portugal		O	X	O	X	X	O
Romania		X	X	O	X	X
Slovakia		X		O	X	O	O
Slovenia		X	X	O	X	X	O
Spain		X	X		X	X	O
Sweden		O		O		O
United Kingdom	O			O

 X  — participating
 O  — announced interest in participation

Criticism

The idea is criticised by opponents of a multi-speed Europe. A source in the French EU Presidency stated: "Enhanced cooperation is a very sensitive issue because it has never been implemented. It allows several member states to go forward faster than others, and it is not necessarily the image we want to give of the EU." Likewise in 2002 when the Treaty of Nice was being negotiated the UK's current Deputy Prime Minister, then-Liberal MEP, Nick Clegg attacked the idea as shaking the very foundation of the EU.

See also

• Opt-outs in the European Union
• Mechanism for Cooperation and Verification
• Multi-speed Europe
• European integration and Agencies of the European Union with various examples of participation by non-EU states
• Declaration on Symbols of Europe - adopted by a subset of EU member states
• 28th regime
• Open Method of Coordination

Literature

• Hermann-Josef Blanke: Art. 20 EUV, Kommentar, in: Grabitz/Hilf/Nettesheim (EL 42, Sept. 2010)