IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI European Union |EUintegration |EUinstitutions |EUlaw |Federalism connected toits use. to show thepotential of theconcept andsome of therisks in thecurrent phaseof theEUintegration process. It aims on asymmetryasaninstrument of differentiated integration adopting acomparative approach, thispaper offers areflection legal andcultural backgrounds (Canada,for instance).By federal contexts characterisedbythecoexistenceof different federalising processes, especially inthose federal or quasi- Asymmetry hasfrequently beenexperimented within ABSTRACT by Giuseppe Martinico An Institutional andLegal Assessment A Multi-Speed EU? keywords IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 2 EU’s tasks,competencies andmembership have grown.” been aconcomitant of deepeningandwidening, gaining inimportance asthe and, mostlikely, enduring characteristic of theEU. Moreover, differentiation has differentiated integration” Leuffen, Rittberger andSchimmelfennig have definedtheEUasa “system of 22, No. 6 (2015), p. 800. p. No. 6(2015), 22, Policy Public European of in in Journal Europe”, Differentiation and “Democracy Fossum, Erik John status.” membership different having as regarded come to be members full notionally even where cases second, Union; and the of involvement with levels previous their from disintegrate others reasons, for connected and time same at the whilst, more closely integrate states some where cases first, lasting: and more wider be likely to are that states member between differences two new includes Yet it also speeds. only at different integration same of the consisting mainly as integration of differentiated understandings traditional it encompasses words, other In integration. differentiated beyond, goes yet includes, that concept wider as a differentiation might understand * 2 1 States before theTreaties aswell astheirnational identities, inherent intheir Art. 4.2TEUprovides for concerning the duty to“respecttheequality of Member constitutional diversity that inspirestheEuropean project (inlight of what now of differentiated integration useful toguarantee unity without jeopardising the Against thisbackground, asymmetrycanbeconceptualised as aninstrument differentiated integration The aimof thispaper istooffer areflection onasymmetryasaninstrument of 1. Why asymmetryshould notbetreated asanF-word by Giuseppe Martinico* An Institutional andLegal Assessment A Multi-Speed EU? A Multi-Speed EU?An Institutional and Legal Assessment . 3 [email protected]. Many thanks to Giacomo Delledonne and Leonardo Pierdominici. Leonardo and Delledonne to Giacomo thanks Many [email protected]. (Turin). E-mail: Federalismo sul Studi Fellow Centro at the Research and (Pisa) Sant’Anna , Basingstoke, Palgrave Macmillan, 2013. Macmillan, Palgrave , Basingstoke, Union European the in Variation Explaining European Public Policy Public European of Differentiation”, inJournal and Politicization Interdependence, Integration: of Differentiated Copyright © Istituto Affari Internazionali (IAI) and Centro Studi sul Federalismo (CSF). sul Federalismo Studi Centro and (IAI) Internazionali Affari © Istituto Copyright Programme. Affairs International Paolo, San di Compagnia with partnership strategic of the framework of the in (CSF) sul Federalismo Turin Studi Centro and (IAI) Internazionali Affari Paper prepared within the context of “Governing Europe”, a joint project led by the Istituto Istituto the by led Europe”, ajoint project of “Governing context the within prepared Paper Giuseppe Martinico is Associate Professor of Comparative Public Law at the Scuola Superiore Superiore Scuola at the Law Public of Comparative Professor Associate is Martinico Giuseppe

As Fossum pointed out, differentiation and differentiated integration are not synonymous: “We synonymous: are not integration differentiated and differentiation out, pointed Fossum As Frank Schimmelfennig, Dirk Leuffen and Berthold Rittberger, “The European Union as a System System as a Union European “The Rittberger, Berthold and Leuffen Dirk Schimmelfennig, Frank Differentiated Integration. Integration. Differentiated Schimmelfennig, Frank and Rittberger Berthold Leuffen, Dirk , Vol. 22, No. 6 (2015), p. 764-782. p. No. 6(2015), , Vol. 22, 1 2 inthecurrent phaseof theEUintegration process. andhave argued that “differentiation isanessential 3 , Vol. IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 3 Journal of European Public Policy Public European of Journal in Perspective”, Regionalism asymmetricfederalism/Watts2005.pdf. http://www.queensu.ca/iigr/sites/webpublish.queensu.ca.iigrwww/files/files/WorkingPapers/ Federalism Series Asymmetric in Federations”, in on Asymmetry Perspective Unito all’Europa) Regno (dal unitari negli Stati costituzionali di devolution etransizioni Processi (eds.), Torre al. et will see. a legal systemallowing asymmetrypresents some constitutional safeguards, aswe sense, i.e. atransformation of theidentity of thelegal system. In order toavoid this, system ispreserved; otherwise,flexibility would lead toarevolution inatechnical “something more” tothelife of apolitical systemonly when theidentity of this value totheintegration phenomenon. Against thisbackground, flexibility gives This iscrucial toconceive of theflexibility ensuredbyasymmetryasanadded out only when therespectof anuntouchable core of integration isguaranteed. this work Ishall analyse those forms of asymmetries which areallowed and carried However, inorder toavoid misunderstandingsIwould like tomake clear that in extended andadapted tomany different processes byscholars over the years. this explainswhy theideasof differentiated integration andasymmetry have been 7 6 5 4 Asymmetry hasbeenfrequently experimented with within federalising processes, federalising process 2. Why asymmetrymight begood for theEuropean Union The literature on differentiated integration and multi-speed Europe is huge, integration tendtobeviewed sceptically bymany scholarsandpolicy-makers.” local self-government”). However, despite this,“differentiated forms of European fundamental structures, political andconstitutional, inclusive of regional and A Multi-Speed EU?An Institutional and Legal Assessment 34, No. 5 (2011), p. 1092-1113. p. No. 5(2011), 34, Politics European West in of Sovereignty”, Management the and Doxa Integration Union: The Closer Ever of an Out Opting Adler-Nissen, “Opting Rebecca also See 784. p. No. 6(2015), Vol. 22, Policy Public European of Integration”, in Journal of Differentiated Analysis aNormative Towards or Dystopia? “Utopia Lord, Christopher See politics”. EU in compromise of pragmatic sources Integration in the European Union”, 876. p. European the cit., in Integration , Vol. No. 2(June 283-295; p. Warleigh-Lack, 34, 1996), Alex “Differentiated Studies Market this into account before conceiving, for instance,of enhancedcooperation asa of different legal and cultural backgrounds (Canada, for instance). One should take specially inthosefederal or quasi-federal contexts characterisedbythecoexistence rights andobligations of membership.” and toany prospect of it developing into apolitical community basedon shared authority of theUnion; toits telos; totheunity of its policies, laws andinstitutions; Indeed, differentiated integration hasfrequently beenseenas“achallenge tothe

Francesco Palermo, “Divided We Stand. L’asimmetria negli ordinamenti composti”, in Alessandro Alessandro in composti”, ordinamenti L’asimmetria negli We Stand. “Divided Palermo, Francesco As Lord recalls, “differentiated integration has been transformed from taboo to one of the main main the to one of taboo from transformed been has integration “differentiated recalls, Lord As Journal of Common Common of Integration”, in Journal “A of Differentiated Stubb, Categorization C.-G. Alexander Alex Warleigh-Lack, “Differentiated Integration in the European Union: Towards a Comparative Comparative a Union: the European Towards in Integration Warleigh-Lack,Alex “Differentiated , Torino, Giappichelli, 2007, “A, Torino, 149-170; Giappichelli, p. Watts, Comparative L. Roland 5 , Vol. 22, No. 6 (2015), p. 871. p. No. 6(2015), , Vol. 22, , No. 2005/4 (2005), , Vol. 6 and , 4 7

IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 4 European studies. certain scepticism towards asymmetrical arrangements, which wewill findeven in uniformity inmulti-tiered (notonly infully-fledged federal) systems,including a find many of theintuitions developed inthecurrent discussion about flexibility and present inagiven territory. among thecomponents of thefederation or tothevariety of laws or public policies not refer tomeredifferences of geography, demography or resources existing Asymmetry in States Federal Asymmetry Diversity. Accommodating (ed.), Agranoff Robert in Revisited”, Asymmetry and “Symmetry Directions and Future Traditions Competing Federalism and Comparative Federation. (eds.), Gagnon G. socio-economic factors, demographic patterns). on asymmetry(political cultures and traditions, social cleavages, territoriality, it ispossible torefer toavariety of factors that might lead agiven polity torely for asymmetry(called “socio-economic” and“cultural-ideological” preconditions), perceived asathreat tothequality of thedemocratic debate, makingthepolity 11 10 9 8 autonomy andpower among theconstituent units.” federal system,therefore, occurswhere thereisadifferentiation inthedegrees of in thepattern of theirrelationships within afederal system.‘Asymmetry’ ina the territory: “Federal symmetryrefers tothe uniformity among memberstates explicable bytakinginto account thecultural andeconomic diversity present in are two of themostimportant features of Canadianfederalism, elements partly integration, ascomparative law shows. For instance,flexibility andasymmetry On thecontrary, asymmetrymight even serve asaninstrument of constitutional form of “constitutional evil” conducive toa“disintegrative” multi-speed Europe. A Multi-Speed EU?An Institutional and Legal Assessment 13 12 IWE-Papers/WP26.pdf. Working Papers IWE Politics of Journal Speculation”, in ATheoretical of Federalism: Elements as Asymmetry and “Symmetry D. Tarlton, Charles by article of aseminal publication the after 60s the in studies comparative from originates of asymmetry concept on debate the 2). p. The cit., Federations”, in on Asymmetry “A Watts, Perspective Comparative L. (Roland all federations” virtually within of relations typical is as Tarlton noted, and, a federation, within units constituent among differences economic and social of cultural, impact the from arising or relationships practices actual to the refers asymmetry, law. facto latter,the The de under differently treated are units where constituent processes, legal facto de jure de between or asymmetry, constitutional and financial between distinguish one can glue bindingthecomponent partstogether”; of asymmetryBauböck recalls that: 1)asymmetrycanaffect cohesion, that is,“the to violate a commitment to equal federal citizenship”; “unequal representation of citizens in federal government and thus can be seen

The word asymmetry has acquired a variety of meanings: when talking about asymmetry asymmetry about when talking of meanings: avariety acquired has asymmetry word The Roland L. Watts, “A Comparative Perspective on Asymmetry in Federations”, cit., p. 2. p. cit., Federations”, in on Asymmetry “A Watts, Perspective Comparative L. Roland Michael Burgess, “Federalism and Federation: A Reappraisal”, in Michael Burgess and Alain Alain and Burgess Michael in AReappraisal”, Federation: and “Federalism Burgess, Michael Ibid., p. 20. p. Ibid., Rainer Bauböck, “United in Misunderstanding? Asymmetry in Multinational Federations”, in in Federations”, Multinational in Asymmetry Misunderstanding? in “United Bauböck, Rainer Charles D. Tarlton, “Symmetry and Asymmetry as Elements of Federalism” cit., p. 874. p. cit., of Federalism” Elements as Asymmetry and D. “Symmetry Tarlton, Charles , Vol. 27, 861-874. p. 1965), No. 4(November asymmetry. jure De , Toronto, University of Toronto Press, 1993, p. 3-14; Michael Burgess and Franz Gress, Gress, Franz and , Toronto, 3-14; p. 1993, Burgess of Toronto University Michael Press, , No. 26 (May 2002), p. 17, p. 2002), , No. (May 26 https://eif.univie.ac.at/downloads/workingpapers/ 10 As Burgesspointed out, within two broad typesof preconditions asymmetry “refers to asymmetry embedded in constitutional and and constitutional in embedded to asymmetry “refers asymmetry , Baden-Baden, Nomos, 1999, p. 43-56. p. 1999, Nomos, , Baden-Baden, 9 Looking at this debate isalso very useful in order to 12 2)asymmetric powers cantranslate 11 Whenlistingthepros andcons 8 13 However, asymmetrydoes and 3) asymmetry may be and and

IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 5 html?reference=IPOL-AFCO_ET%282013%29474438. 24-29, p. http://www.europarl.europa.eu/thinktank/en/document. 2012, October Parliament, of Multi-Tier Challenges in in the EU Governance integration?”, differentiated in for amulti-level Parliamentarism architecture institutional an to assess “How Wolfang Wessels, Integration Rechts”, in des Sicherheit und der Freiheit, der Raum im Differenzierungsrealität der Opt-Ins, Opt-Arounds?Outs, Analyse Eine generate even more asymmetry.” the rule rather thanthe exception inthisfield. acquired a key role in the history of federalism. In other words, today asymmetry is between parties put on anequal footing), actually thisconcept hasprogressively federal polities (andthiscanbeexplainedbyconceiving of thefoedus asacontract While comparative lawyers still treat asymmetryasanexception inthelife of point of view, andagood example of thisisgiven bysocial policies, aswewill see. generated by the coexistence of different cultures. Canada is emblematic from this As comparative law shows, asymmetry works asasafety valve of some tensions as wewill see,for instance,when dealing with Art. 326TFEU. makes asymmetry“sustainable”: thisisalso therationale of asymmetryinEUlaw, the identification of aconstitutional core of principles andvalues whose respect Indeed, thedebate on thepossible negative implications of asymmetry leads to forces, andhereagainone canfindinteresting clues from comparative studies. In otherwords, asymmetryisagamebetweencentripetal andcentrifugal disadvantaged minorities andthat respectstheequal dignity of its components. At thesametimeasymmetryisaresource for apolity that wants torecover less understandable tocitizens A Multi-Speed EU?An Institutional and Legal Assessment 17 16 15 14 contours acquiredbytheidea of differentiation in EU law and its mainsources, process. Scholarshave conducted in-depthstudies of the These studies confirm theimportance that integrated differentiation hasinthe connected with thefocus of thispaper. integration scholars in EUstudies also recall otherphenomena that arepartly As recalled at thebeginningof thepaper, when dealing with differentiated constitutional safeguards provided for in theEUTreaties 3. How asymmetryworks inEUlaw andtherole played bythe documento.cfm?artid=6991. asimmetrico”, in Federalismi.it

Ibid.

See, for instance, the examples of differentiated integration treated by Funda Tekin, “Opt- Funda Tekin, by treated integration of differentiated examples the for instance, See, Francesco Palermo, “La coincidenza degli opposti: l’ordinamento tedesco e il federalismo eil federalismo tedesco l’ordinamento opposti: degli coincidenza “La Palermo, Francesco “Highly asymmetric federations become opaque for their citizens.” Ibid., p. 16. p. Ibid., citizens.” for opaque their become federations asymmetric “Highly , 7 February 2007, http://www.federalismi.it/nv14/articolo- , 7February 14 andcreating “incentives for bargainingthat will 15 , No. 4 (2012), p. 237-257; as translated into English by by into 237-257; p. , No. English 4(2012), translated as 17 16 , Brussels, European European , Brussels, IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 6 but We’re 15. p. Same”, cit, not the Economics Accommodating Diversity: Asymmetry in States Federal Asymmetry Diversity: Accommodating (ed.), Agranoff Robert Federalism”, in of Asymmetrical Implications Practical and Theoretical paper/it-is-time-for-the--area-to-develop-further-closer-cooperation-among-its-members. Jean Monnet Members”, in its Working Papers European Law Review Law European Union”, European the in in Waves of Governance New “Three Dawson, Mark also See 8.html. WorkingMPIfG Papers the and control of theotherEUinstitutions (Commission, Parliament) guaranteeing EU as a whole. The procedures to be followed in this case ensuretheintervention that thegoals of integration cannotbeachieved within areasonable period bythe be conceived asasort of extremaratio tobeexploited when theCouncil realises specific areas (openness is at the heart of Art. 331 TFEU). can “shutting thedoor” tothoseunwilling totake stepstowards deeperintegration in it allows Member States toexperiment with different forms of integration without Enhanced cooperation aimstoensure,at thesametime,unity anddiversity. In fact, at makingasymmetrysustainable andthus functional tothegoals of integration. understanding theimportant role played bythoseconstitutional safeguards aimed examples. Theinstrument of enhancedcooperation isparticularly useful in to overcome thedifficulties present inthe enlarged Union. group of authors has insisted on the positive implications of a multi-speed Europe option, looking at it asincompatible with anintegration process. Finally, another 23 22 21 20 19 18 The EUalready knows some forms of asymmetry: distinguishing several models. A Multi-Speed EU?An Institutional and Legal Assessment 25 24 No. 1 (January 2013), p. 193-194. p. 2013), No. 1(January implications. exceptions, namely, decisions on defence matters or decisions that have military the Union. From Uniformity to Flexibility? to Uniformity From Union. in the Change European Constitutional (eds.), Scott Joanne and deBúrca Gráinne general, in See on Federalism Perspectives EU”, in the in Asymmetry and Unity Tension between the and Cooperation Enhanced but We’re One, Same: “We’re not the Cantore, Maria Carlo and documents/ebookceuediciones1.pdf; Challenge of Enhanced Cooperation of Enhanced Challenge Integration the open methodof coordination,

Journal of European European of Journal in of asymmetry”, politics the and outsiders Euro “Introduction: Miles, Lee Jean-Claude Piris, “It is Time for the Euro Area to Develop Further Closer Cooperation Among Among Cooperation Closer Further to Develop Area Euro for the Time is “It Piris, Jean-Claude German Law Journal Law EU-27?”,the in German to Farewell Integration. Avbelj,Matej “Differentiated Art. 333 TFEU. 333 Art. Unity and Flexibility in the Future of the in Union: European the Future Unity The and (ed.), Flexibility Beneyto María José Fritz W. Scharpf, “The European Social Model: Coping with the Challenges of Diversity”, in in of Diversity”, Challenges the with Coping Model: Social European “The W.Fritz Scharpf, Journal of Public Public of Cooperation”, Journal in Enhanced “On Brusco, Sandro and Bordignon Massimo See Watts, for instance, mentions the EU in his writings on asymmetry. See: Ronald L. Watts, “The “The Watts, L. Ronald See: on asymmetry. writings his in EU the mentions for instance, Watts, passerelle mechanismmay beapplied toenhancedcooperation with some common agents’ control. , Vol. 90, No. 10-11 (November 2006), p. 2063-2090; and Carlo Maria Cantore, “We’re One, One, “We’re Cantore, Maria Carlo and 2063-2090; p. , Vol. No. 10-11 90, 2006), (November , Vol. 27, 3-23. p. 2005), No. 1(March , Vol. 3, No. 3 (2011), p. 1-21, http://on-federalism.eu/attachments/103_download.pdf. 1-21, p. , Vol. No. 3, 3(2011), http://on-federalism.eu/attachments/103_download.pdf. 25 , Vol. 36, No. 2 (2011), p. 208-226. p. , Vol. No. 2(2011), 36, , No. 02/8 (July http://www.mpifg.de/pu/workpap/wp02-8/wp02- 2002), , Madrid, CEU Ediciones, 2009, http://www.ceuediciones.es/ 2009, Ediciones, CEU , Madrid, 24 , Oxford, Hart, 2000. Hart, , Oxford, 18 After theentry into force of theLisbon Treaty Othershave harshly criticised theasymmetric 22 andenhancedcooperation , No. 5/2011 (2011), http://jeanmonnetprogram.org/ (2011), No., 5/2011 , Baden-Baden, Nomos, 1999, p. 29. p. 1999, Nomos, , Baden-Baden, 20 theopting-out mechanism, 19 23 arejustsome , Vol. 14, 21

IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 7 28 27 26 missions,” commitments toone anotherinthisareawith aview tothemostdemanding whose military capabilities fulfil higher criteria and which have mademore binding field of common foreign anddefence policy involving “[t]hose Member States A particular form of cooperation isthepermanent structured cooperation inthe Enhanced cooperation underEUlaw also counter-balances (partly at least) A Multi-Speed EU?An Institutional and Legal Assessment 31 30 29 papers/998. Papers Research CSF in in criminal matters andpolice cooperation. framework programme, or Art. 86and87TFEUinthefield of judicial cooperation defence policy –Art. 184TFEUwithin theimplementation of themulti-annual those governed byArts. 42and45TEU, againinthefield of common security and to theLisbon Treaty. It isalso possible torecall otherforms of differentiation like 2009), http://hdl.handle.net/1814/13002. 2009), Working Law Papers EUI EU”, in of the Policy Defence and Security and asymmetry produced byenhanced cooperation sustainable underEUlaw. All theseelements serve asconstitutional safeguards sincetheymake the necessity torely on it asalastresort, compliance with the EUTreaties). law (for instance, exclusion of areascovered bytheEU’s exclusive competence, the out, governing provisions areArts. 330-333 TFEUandArt. 20TEU. As Fabbrini pointed EU isemblematic of how asymmetrycanperform anintegrative function. The As mentioned previously, the discipline of enhanced cooperation under the meet theobjective requirements for joining the enhancedcooperation scheme.” join enhancedcooperation from thebeginning,but also for thosewhich do not this is“aguarantee notonly for thoseMember States without thepolitical will to deliberations.” Finally, enhancedcooperation isconceived for specific areas,and according toArt. 330TFEU, “[a]ll members of theCouncil may participate inits Bauböck’s argument on thelackof transparency of asymmetrical dynamics, since Fabbrini calls bothexante and when analysing theseprovisions it ispossible toinfer limits andconditions –what possibility tostepinthecooperation for the“non-original parties.” More generally, of theCouncil, useof thepasserelle clause) and,finally, those governing the (regular useof theEUinstitutions, application of particular rules for theworking Parliament andCouncil), thoseregardingthefunctioning of enhancedcooperation the activation (minimum number of Member States, role of theCommission,

Art. 42.6 TEU. On this see: Marise Cremona, “Enhanced Cooperation and the Common Foreign Foreign Common the and Cooperation “Enhanced Cremona, Marise see: this On TEU. 42.6 Art. Carlo Maria Cantore, “We’re One, but We’re not the Same”, cit., p. 16. but p. We’re One, Same”, “We’re cit., not the Cantore, Maria Carlo Partly because the author mainly refers to the participation of citizens in the public debate. public the in of citizens participation to the refers author mainly the because Partly Ibid., p. 8-9. p. Ibid., Ibid., p. 12. p. Ibid., Federico Fabbrini, “The Enhanced Cooperation Procedure: A Study in Multispeed Integration”, Multispeed in AStudy Procedure: Cooperation Enhanced “The Fabbrini, Federico 28 all theserules canbetracedbacktothreegroups of norms: thoseconcerning 31 whose conditions arelistedinArt. 42.6and46TEUProtocol 10 , October 2012, http://www.csfederalismo.it/en/publications/research- 2012, , October ex postcaveats 29 –of enhancedcooperation inEU , No. 21/2009 (December (December , No. 21/2009 30 26 27

IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 8 (2015), p. 756. p. (2015), Policy Public European of Journal in or aTheory?”, aSystem a Process, Concept, 32 group will bedifferentiated, from now on, betweenthose who signed thenew already existing asymmetry between Euro and non-Euro members, this second asymmetry, adding another pattern of differentiation. For instance, besides the being thefactthat theTSCGintervenes inasituation already dominated by Against thisbackground, theTSCGispeculiar for many reasons, themostevident the enhancedcooperation mechanismintheTSCG. of apublic international law treaty. Thesecond reason concerns thediscipline of the creation of asetof rules sharedbyagroup of theEUMember States intheform namely viatheconclusions of international agreements. Thischoice haspermitted mentioned at thebeginninghave beenadopted outside theframeof EUlaw, the EUhasbeenamplified due totwo mainfactors. First, some of themeasures Within thenewEuropean economic governance theasymmetric dimension of integration.” just be‘noise’ around anunderlying trajectory towards more uniform forms of all this.It isnow much harder toassumethat differentiated integration may This aspecthasbeenpointed out bythosewho wrote that the “crisis haschanged transaction tax, The useof enhancedcooperation inthefield of divorce, patents andfinancial A Multi-Speed EU?An Institutional and Legal Assessment 34 33 transaction tax, 22 January 2013. January 22 tax, transaction of financial area the in cooperation enhanced authorising 2013/52/EU Decision Council 2011; 10 March patent protection, of unitary creation of the area the in cooperation enhanced 2011/167/EU authorising July Decision 2010; 12 Council separation, legal and to divorce applicable dynamics. Fossum hasstressedthispoint byarguingthat: the increasedasymmetryof thepicture andtheincreaseof intergovernmental of theTSCG,scholarsobserve two important factors of constitutional mutation: Union. When looking at the new economic governance through the perspective the other,have beengiving newblood tothedebate on asymmetryinthelife of the Coordination andGovernance intheEconomic andMonetary Union (TSCG),on

John Erik Fossum, “Democracy and Differentiation in Europe”, cit., p. 799-800. p. in Europe”,cit., Differentiation and “Democracy Fossum, Erik John Council Decision 2010/405/EU authorising enhanced cooperation in the area of the law law of the area the in cooperation enhanced 2010/405/EU authorising Decision Council Benjamin Leruth and Christopher Lord, “Differentiated Integration in the European A Union: the European in Integration “Differentiated Lord, Christopher and Leruth Benjamin integration anddifferentiated disintegration. EU may become more differentiated through acombination of differentiated decision-making. Thus, rather thanseeingfurther (uniform) integration, the could manifest itself in differentiated authority structures andpatterns of occupy permanently different roles andstatuses intheEU, asituation that […] Onepossible outcome of thecrisisisthat memberstates may come to member states will continue tomove inthesameintegrationist direction The crisishasraisedserious questions about theassumption that all EU 34 32 on theone hand,andtheadoption of thenewTreaty on Stability, 33 , Vol. 22, No. 6 , Vol. 22, IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 9 belong totheEurozone but that have ratified theTSCG. Vol. 6, No. 3 (2015), p. 4, http://www.on-federalism.eu/attachments/004_Volume%206%20-%20 4, Vol. p. No. 3(2015), 6, on Federalism of Concern”, is Perspectives in this Extent to What and EU. Why the in Parliaments Law Review Business European Doubts”, in Lingering Many Few Certainties, Mechanisms: Stability Financial “EU Bianco, Giuseppe See area.” that in stability for price aprerequisite –is ESM of the objective –the of the stability the that to recognise fails which reasoning, of this formalism’ ‘legal the noted have commentators Some policies). monetary thus and work, ECB’s the characterise (which Eurocurrency or issuing rates interest stability, setting price not of maintaining and assistance, financial granting and stability financial of safeguarding objective the has Mechanism the because is policy. This not monetary and policy economic concerns ESM the that maintained Pringle in of Justice Court the regard, order. legal this EU In of the outside stands ESM albeit the Euro, to acondition adopt the as treaty ESM the to ratifying to commit required be will latter The country. of anew area Euro to the accession on the negotiations the during dealt it with is that is of view point apractical from more realistic appears What Eurozone. to the admitted been already has country the once enforce to difficult rather be would obligation an such this. Yet, confirms 2(1) treaty. Art. ESM to the adhering before Eurozone the in membership of the precedence achronological suggests that obligation an out: is “It pointed Bianco As Parties.” Contracting of the those with line in obligations, and rights full with Member ESM an become should Union European of the State aMember area, Euro the of joining aconsequence As Members. of thefundand those that subscribed a minimal share.” those granting financial assistanceandthose which detainthelargestsharecapital (Quaderni IAI 5), http://www.iai.it/en/node/1162. IAI (Quaderni Fiscal Il Compact (eds.), Brugnoli Flavio and Bonvicini Gianni documents-publications/agreements-conventions/agreement/?aid=2012008. website: Council http://www.consilium.europa.eu/en/ the European see process ratification the on earlier.” the For is more information whichever euro, the is currency whose Party Contracting bya ratification of instrument twelfth the of the deposit the month dayfollowing of first the or on of ratification, instrument their deposited have euro the is currency whose Parties 39 38 37 36 35 the Eurozone, Treaty –which wassigned by19Member States, i.e.all thoseStates belonging to Partially different isthe European Stability Mechanism –anotherinternational Union, emphasising theasymmetric feature of EUeconomic governance. It isclear from thisscenario that theTSCGisgoing toamplify thevariable-geometry Treaty andthosewho didnot.For instance,building on Rossi’s work, A Multi-Speed EU?An Institutional and Legal Assessment 40 according toArt. 14TSCG). ratified theTSCG(at least “twelve Contracting Parties whose currencyistheeuro,” A firstcircle isrepresented bythoseEU Member States of the Eurozone that have circles. to argue that the TSCG has created a system characterised by various concentric TSCG. those States that do not participate in the Euro Plus Pact but that have ratified the

For instance . For instance Lucia Serena Rossi, “Fiscal Compact e conseguenze dell’integrazione differenziata nell’Ue”,in differenziata dell’integrazione econseguenze Compact “Fiscal Rossi, Serena Lucia The Preamble of the ESM Treaty states that: “All Euro area Member States will become ESM ESM become will States “All Member that: area states Euro Treaty ESM of the Preamble The Art. 14.2: “This Treaty shall enter into force on 1 January 2013, provided that twelve Contracting Contracting twelve that provided 2013, enter into shall force on 1January Treaty “This 14.2: Art. For instance . For instance Cristina Fasone, “Eurozone, Non-Eurozone and ‘Troubled Asymmetries’ Among National National Among Asymmetries’ Non-Eurozone ‘Troubled “Eurozone, Fasone, and Cristina 38 , Vol. 26, No. 3 (2015), p. 464. p. , Vol. No. 3(2015), 26, 39 but even within themone should distinguish “thosereceiving and 36 Asecond group consists of thoseStates that do not , Roma, Nuova Cultura, 2012, p. 29-34 p. 2012, Nuova Cultura, , Roma, 40 In other words, these new 37 Athirdcircle includes 35 it ispossible , 10 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI the Euro andtheotherContracting Parties. Il sistema parlamentare euro-nazionale. Lezioni euro-nazionale. parlamentare sistema Il (eds,), Art. 12of theTSCG those Member States.” Since theTSCGapplies toEuro- andnon-Euro countries, its currency istheeuro shall elect apresident for two and ahalf years, byamajority of 1). Art. 2of thisProtocol also readsthat “[m]inistersof theMember States whose of theMember States whose currencyistheeuro andof theCommission” (Art. be preparedbytherepresentatives of theMinisterswith responsibility for finance European Central Bankshall beinvited totake partinsuch meetings,which shall regard tothesingle currency. TheCommission shall take partinthemeetings.The euro “todiscussquestions related tothespecific responsibilities theysharewith some meetings among the ministers of the Member States whose currency is the on the“Euro-Group” that wasannexed totheLisbon Treaty, which provides for States only.” Another important setof provisions isrepresented byProtocol No. 14 shall be constituted by the votes of the representatives of the participating Member States participating inenhancedcooperation shall take partinthevote. Unanimity in its deliberations, but only membersof theCouncil representing theMember makes a distinction bystating that “[a]ll membersof theCouncil may participate When dealing with enhancedcooperation, for instance,Art. 330TFEUexpressly depending on thespecific mechanismandtheEU Institution taken into account. those whose currency is the euro, which have ratified this Treaty shall participate in discussions of discussions in participate shall Treaty this ratified have which euro, the is currency whose those 43 42 41 issue%203%20-%202014.pdf. What istheinstitutional impact of theseforms of asymmetry? the European integration process 4. Theinstitutional impact of asymmetryinthecurrent phaseof cooperation mechanism,namely Art. 10TSCG. is represented bytheprovisions included intheTSCGanddevoted totheenhanced Indeed, anothersource of asymmetryinthenewEuropean economic governance on theprinciple of equality of EUMember States. economic measurestaken togetherhave madescholarswonder about theirimpact A Multi-Speed EU?An Institutional and Legal Assessment 44 increase convergence in the euro area.” euro the in convergence increase to policies of economic conduct for the orientations apply strategic to and it, that rules the and area euro of the governance the concerning issues other currency, single to the regard with share euro the is currency whose Parties Contracting the which responsibilities specific to the relating questions to ayear, discuss twice at least and when necessary, place take shall meetings Summit Euro 2. of office. term same for the and President its elects Council European the as time same at the majority simple by euro the is currency whose Parties Contracting of the or Government of State Heads the by appointed be shall Summit Euro of the President The meetings. such in part to take invited be shall Bank Central European of the President The Commission. European of the President the with together meetings, Summit Euro in informally meet shall euro the is currency Ibid.

Art. 12 of the TSCG: “1. The Heads of State or Government of the Contracting Parties whose whose Parties Contracting of the or of Government State Heads The “1. TSCG: of the 12 Art. On this topic see: Cristina Fasone, “Il Parlamento europeo”, in Andrea Manzella and Nicola Lupo Lupo Nicola and Manzella Andrea europeo”, in Parlamento “Il Fasone, topic Cristina see: this On Art. 12 of the TSCG: “3. The Heads of State or Government of the Contracting Parties other than than other Parties Contracting of the or of Government State Heads The “3. TSCG: of the 12 Art. 43 distinguishesbetweenContracting Parties whose currencyis 44 , Torino, Giappichelli, 2014, p. 73 et seq. et 73 p. 2014, , Torino, Giappichelli, 41 42 Theanswervaries 11 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI 90/wp90.pdf. https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp81- 2012), (April 90 No. Working Studies Papers Governance for Global Centre Leuven KU in Scrutiny”, Inter-Parliamentary Common Security andDefence Policy (CFSP/CSDP), parliamentary Conference for theCommon Foreign andSecurity Policy andthe Parliament. from thenational Parliaments of theEUmemberstates andtheEuropean prejudge their positions.” their prejudge not shall and Parliaments national not bind shall conference the from policy. Contributions defence and security common policy, including security and foreign of common to matters debate particular in topics, on specific conferences interparliamentary organise It also may committees. special their including Parliament, European the and Parliaments national between practice best and of information exchange promote addition the in shall conference That Commission. the and Council the Parliament, European of attention the for appropriate the it deems here without going into detail. meetings of sectoral committees, etc.),but it issufficient torefer torecent works European Union-COSAC; joint parliamentary meetings,joint committee meetings, (Conference of Community and European Affairs committees of parliaments of the inter-parliamentary cooperation in the EU develops through different channels 49 48 47 Art. 46 45 meetings.” Summit outcome Euro and of the preparation of the informed Union closely European of the States Member other the and euro the is currency whose those than other Parties Contracting the keep shall Summit Euro of the President […] The Union. 6. Monetary and Economic the in Governance and on Stability, Coordination Treaty of this implementation of issues on specific discussions in ayear, once at least when and appropriate as, well as future, apply to will it the in that rules fundamental the and area euro of the architecture global of the modification the Parties, Contracting for the competitiveness concerning meetings Summit Euro More recently, new“second generation” a partof abroader trendfed byProtocol 1 Another interesting provision isgiven byArt. 13of theTSCG,which should beas A Multi-Speed EU?An Institutional and Legal Assessment 50 ¿Esta vez es diferente? es ¿Esta vez Parlamento El europeo: (eds.), Eceizabarrena Ugartemendia Ignacio Juan and María deSanta Sáenz ámbito?”, el Andrés Paz in según ¿Un diverso degrado decrisis: contexto un y en acercamiento Union.” the within cooperation interparliamentary regular and promotion of effective and organisation Representation in the Union European Representation of Democratic Challenge The (eds.), Friedrich Dawid and Union”, Kröger European Sandra in Security and Defence Policy (CSDP), http://www.europarl.europa.eu/webnp/cms/pid/1932. Policy Defence and Security Common (CFSP) the and Policy Security and Foreign Common for the Conference parliamentary Inter- an establishing Warsaw, in and 2012, on 20-21 April 2011 on 4-5 April Brussels, in meetings and 10

Cristina Fasone, “Interparliamentary Cooperation and Democratic Representation in the the in Representation Democratic and Cooperation “Interparliamentary Fasone, Cristina Protocol on the Role of National Parliaments in the European Union. European the in Role of Parliaments on National the Protocol Jan Wouters and Kolja Raube, “Europe’s Common Security and Defence Policy: The Case for Case The Policy: Defence and Security Common Wouters “Europe’s Jan Kolja Raube, and 10: “A conference of Parliamentary Committees for Union Affairs may submit any contribution anycontribution submit may for Union Affairs Committees 10: “A of Parliamentary conference Decisions of the Conference of Speakers of the European Union (EU) Parliaments at its Parliaments Union (EU) European of the of Speakers Conference of the Decisions Art. 9: “The and national Parliaments shall together determine the the determine together shall Parliaments national and Parliament European 9: “The Art. Diane Fromage, “Parlamento Europeo y Parlamentos nacionales después del Tratado de Lisboa deLisboa Tratado del después nacionales yParlamentos Europeo “Parlamento Fromage, Diane 46 are devoted to inter-parliamentary cooperation. More generally, today 50 , Bilbao, IVAP, 2015, p. 223-249 (European Inklings 5). Inklings IVAP,, Bilbao, (European 223-249 p. 2015, 47 , Basingstoke, Palgrave Macmillan, 2011, p. 41-58. p. 2011, Macmillan, Palgrave , Basingstoke, 48 45 arenashave beencreated: theInter- totheLisbon Treaty, of which Art. 9 49 which gathers delegations , 12 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI www.imf.org/external/pubs/ft/aa. organisations like theInternational Monetary Fund. As Koedooder recalled, be represented byaunified Eurozone external representation ininternational eerstekamer.nl/eu/documenteu/_working_paper_of_the_meeting_of. http://www. 2013, January on 11 in Parliament European the Union and European the 53 52 51 the Growth Survey andtheAlert Mechanism Report.” on the stability and reform programmes, the orientation of economic policies, or aftertheadoption of therelevant documents –namely therecommendations will meetat least twice ayear, notably before theEuropean Council inJune, before be taken at theresponsible level.” Moreover, it wasaddedthat “[t]heConference Parliaments andwith theEuropean Parliament. Yet bindingdecisions could only the European Semester,inorder toreinforce dialogue betweenthenational of Economic andMonetary Union, including agreements intheframework of was discussedwhich stated that “thisconference would discusstopical issues the inter-parliamentary cooperation intheEU. Onthat occasion a working paper was characterisedbytheemergenceof different views concerning the role of European Parliament, held in Luxembourg on 11 January 2013. That meeting of Parliament of thefounding Member States of theEuropean Union andthe into force of theTSCGandonly partly clarified afterameeting of thespeakers The nature and functions of this conference have been discussed after the entry in order todiscussbudgetary policies andotherissues covered bythisTreaty.” Parliament andrepresentatives of therelevant committees of national Parliaments of aconference of representatives of therelevant committees of theEuropean of theContracting Parties will togetherdeterminetheorganisation andpromotion Art. 13 of the TSCG reads: “the European Parliament and the national Parliaments A Multi-Speed EU?An Institutional and Legal Assessment 55 54 on 21-23 April 2013. Speakers_ConferenceEN_24-4-2013.pdf. here: http://www.senate.be/event/20130422-Nicosia/Conclusions_ on 21-23 available 2013, April was thenfound that have notsigned the TSCG) were partof this conference, but anagreement clear whether thedelegations of theUK,CzechRepublic andCroatia (countries European Law Blog Law European in Representation?”, membership, sinceaccording toArt. II,section 2of theIMFArticles of Agreement, law, asKoedooder suggests, and anotherissue isrepresented byapossible IMF .” However, thelegal picture ismore complicated underEU financial institutions and conferences. TheCouncil shall actafterconsulting the appropriate measures to ensure unified representation within the international States only –reads “[t]heCouncil, on aproposal from theCommission, may adopt from alegal point of view Art. 138.2TFEU–applicable toEurozone Member publics/124000129/index.shtml. Euro: ou politique le chaos l’integration

Working paper of the meeting of the Speakers of Parliament of the Founding Member States of States Member Founding of the of Parliament Speakers of the meeting Working of the paper The Presidency Conclusions of the Conference of Speakers of EU Parliaments held in Nicosia Nicosia in held Parliaments of EU of Speakers Conference of the Conclusions Presidency The Articles of Agreement of the International Monetary Fund Monetary of the International of Agreement Articles Fund, Monetary International Compare this conference with the so-called Arthuis Report. Jean Arthuis, A Arthuis, Jean Report. Arthuis so-called the with conference this Compare Chris Koedooder, “Will the Juncker Commission Initiate Unified Eurozone External External Eurozone Unified Initiate Commission Juncker the “Will Koedooder, Chris 52 at theConference of Speakers of EUParliaments heldinNicosia 53 Another potential form of institutional asymmetrycould , 2012, http://www.ladocumentationfrancaise.fr/rapports- , 13 November 2014, http://europeanlawblog.eu/?p=2592. 2014, November , 13 51 At thebeginningit wasnot venir Zone de la , https:// , 54 55

13 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI a differentiation should belimited totheactivities connected totheneweconomic open for achangethenearfuture at least. Moreover, it isnotyet clear whether such enshrined inArticle 9TEU.” the European Union, andviolates theprinciple of equality of Union citizens as on grounds of nationality, theprohibition of which isafounding principle of to theorigin of Members of theEuropean Parliament represents discrimination that “any formal differentiation of parliamentary participation rights with regard dealt with theissues sometimes: for instance,inaresolution dated 2013,it stated 59 58 57 56 representation has been discussed widely. integration,” although a debate concerning the possibility of a differentiated European Parliament “has traditionally been indifferent towards differentiated Parliament tohave aconfirmation of this. As, once again, Fasone pointed out, the increased asymmetry intheEU; it is sufficient to look atthe role ofthe European to findaunivocal trendtowards institutional differentiation asa product ofthe These arejustexamples, but asIwrote at thebeginningof thissection, it isnoteasy bound bythem,” implementation of Euro crisismeasures even though theirMember State isnot the firstregardsthoseparliaments “able toblock or veto theadoption and Fasone identifies threecases of asymmetries concerning national parliaments: EU andnational law.” powers amongst theselegislatures, due toapeculiar combination of international, the equality of national parliaments andleading to“anunequal distribution of Another form of institutional asymmetryidentified byscholarsisthat concerning has beensuggested inthissense. the IMFonly accepts“countries” asmembers,andanamendment of thisprovision A Multi-Speed EU?An Institutional and Legal Assessment 62 61 60 getDoc.do?type=TA&reference=P7-TA-2013-0598&language=EN. European Union European subject tostrict conditionality.” national level. Finally, Fasone mentions thecaseof thoseparliaments of “countries Parliaments in the EU” cit., p. 33. p. cit., EU” the in Parliaments Representation?”, cit. Representation?”, legislation,” as aconsequence of constitutional caselaw, constitutional rules andnational Bundestag, toblock thefunctioning of collective mechanisms,like theESM, refers to“thepower of some national parliaments, andfirst of all of theGerman in theamendment procedure followed tochange Art. 136TFEU. Thesecond case

Ibid.

Ibid. On this see: Cristina Fasone, “Il Parlamento europeo”, cit., p. 80. p. europeo”, cit., Parlamento “Il Fasone, Cristina see: this On Cristina Fasone, ““Eurozone, Non-Eurozone and ‘Troubled Asymmetries’ Among National National Among Asymmetries’ Non-Eurozone ‘Troubled and ““Eurozone, Fasone, Cristina Chris Koedooder, “Will the Juncker Commission Initiate Unified Eurozone External External Eurozone Unified Initiate Commission Juncker the “Will Koedooder, Chris Ibid., p. 34. p. Ibid., European in the of amultitier governance Parliament, problems on constitutional Resolution 59 demonstrating the great variety of parliamentary powers at the (A7-0372/2013), 12 December 2013, par. 29, http://www.europarl.europa.eu/sides/ 2013, December 12 (A7-0372/2013), 58 exemplified bythe participation of non-Eurozone parliaments 57 62 Thispoint seemstobetoounivocal toleave margins 60 56 61 The European Parliament itself has 14 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI EU. so called failure of theEuropean Constitution), the“constitutional charter”of the are, astheCourtof Justice of theEuropean Union saidmany times(even afterthe impede thealteration of theinstitutional equilibrium governed bythe Treaties that to make thedegreeof asymmetrypresent inthesystemsustainable andthus to to avoid dangerous andmisleading usesof theEUTreaties. Theyarefundamental avenue for furtherintegration. On thecontrary, legal provisions have beendrafted a premise:legal provisions should notbeseenasbothersome obstacles inthe this purposeonly. In order tomake thissecond point clear it isnecessarytomake integrative function; however, one could argue that Art. 10wasnotdevisedfor • the impasse resulting from thedifficulty ofamendingtheEU Treaties. can serve avery useful function: guaranteeing thenecessaryflexibility to overcome law Treaty) into EUlaw. Thiswould confirm theideathat enhancedcooperation enshrined intheTSGC(which isfrom aformal point of view apublic international enhanced cooperation exArt. 10inorder toincorporate some of theprovisions the EUlegal order recalled byArt. 16 of theTSCG.In otherwords, States could use a role inthissense.Art. 10could represent thepathway for theincorporation into is not the only option available to the relevant actors. Also, Art. 10 TSCG may play Of course,thisincorporation could bedone byrevisingtheEUTreaties, but this of thisTreaty into thelegal framework of theEuropean Union.” Functioning of theEuropean Union, with theaimof incorporating thesubstance taken, in accordance with theTreaty on theEuropean Union andtheTreaty on the assessment of theexperience with its implementation, thenecessarystepsshall be five years, at most, of thedate of entry into force of this Treaty, on thebasis of an necessary torecall thecontents of Art. 16of theTSCG.Thisarticle reads,“Within In order tounderstandtheaddedvalue that thisprovision might have, it is then mentioned thediscipline governing enhancedcooperation exArt. 10TSCG. financial crisis, which hasincreasedtheresort toasymmetric instruments and • for underEUlaw, it ispossible todraw some policy recommendations: After having recalled theorigin andfunction of asymmetryandits limits provided 5. Policy recommendations governance or should beextendedtoall thecasesof multi-speed Europe. A Multi-Speed EU?An Institutional and Legal Assessment 63

Handle with care! Theoption suggested above isable to provide Art. 10with an Bringing theFiscal Compact “home”. Ihave explored theimplications of the Cristina Fasone, “Il Parlamento europeo”, cit., p. 80. p. europeo”, cit., Parlamento “Il Fasone, Cristina 63 15 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI the Treaty on the Functioning of the European Union.” European of the Functioning on the Treaty the of 329 Article in down laid procedure the with accordance in act shall Council The it. in participate States Member nine at least that provided awhole, and Union as the by period areasonable within attained be cannot cooperation of such objectives the that established when it has resort, alast as European Public Law Public Union’”, European in Monetary and Economic the in Governance and on Stability, Coordination ‘Treaty New on the Considerations legal field but disagree on how disagree but field legal into anew integration of expanding opportunity on the agree States when Member used be cannot on whether disagree States Member EU only when used be can cooperation “enhanced that: when he argues Fabbrini with agree I indeed and Italian Republic of the vCouncil Union European C-274/11 of cases joined C-295/11, Bot Kingdom and General of Advocate Opinion The time. of issue an as mainly safeguard this reads Bot awhole.” said, Union as the by As period reasonable a within attained be cannot cooperation that by pursued objectives the that when established it is resort, alast as come into play must “[C]ooperation that: saying by concluded and resort” “last of idea of the ambiguity the emphasised Bot occasion, that On Bot. General Advocate by given patent unitary of a field the in scheme cooperation enhanced the concerning case on the opinion construction has several advantages, including preserving the integrity of the EU constitutional constitutional EU of the integrity the preserving including advantages, several has construction this that explains article the cooperation, of enhanced use for room the possible the restricts EU Treaties enhancedcooperation may beusedwhen “necessaryandappropriate.” 66 65 64 Art. 20TEUdescribes enhancedcooperation asa“lastresort,” of thisprovision with thoseof Art. 20of theTEUandArt. 326to334of TFEU, since In thisrespect,it ispossible toexpresssome doubts when comparing thewording A Multi-Speed EU?An Institutional and Legal Assessment of theratio of enhancedcooperation even inEUlaw. which isalready –perseanambiguous concept. Thiscould induce adistortion of these two provisions might lead to a relativisation of the very idea of last resort, means of interpretation? Itis difficult to say but, in my view, thesystematic reading the consequences of thisinconsistency? Is it possible tosolve the antinomy by door toagreater leeway for theStates intheuseof thismechanism.What about which isvery faraway from theideaof extremaratio, andthismight open the These formulas employed bytheTSCGseemtointroduce anelement of discretion made inArt. 10TSCG. may beusedwhen “necessaryandappropriate,” inspite of therenvoi toArt. 20TEU enhanced cooperation outside EU Treaties where – aswe saw – this mechanism of enhanced cooperation in EU law (enhanced cooperation as a “last resort”) and of inconsistency or at least anevident textual contradiction betweentheconcept My argument isaliteral one: theideaisthat theTSCGmight have introduced asort euro area,without underminingtheinternal market.” to 334of theTFEUon matters that areessential for thesmoothfunctioning of the TFEU andof enhancedcooperation asprovided byArt. 20of theTEUandArt. 326 those Member States whose currencyistheeuro asprovided for inArt. 136of the to make active use,whenever appropriate andnecessary, of measuresspecific to requirements of theEuropean Union Treaties, theContracting Parties standready It isapposite tohave acloser look at Art. 10,which reads“inaccordance with the

Carlo Maria Cantore and Giuseppe Martinico, “Asymmetry or Dis-integration? AFew “Asymmetry Martinico, Giuseppe and Cantore Maria Carlo An example of this ambiguity is provided by the reading given to this concept in the recent recent the in concept to this given reading the by provided is ambiguity of this example An Art. 20 par. 2: “The decision authorising enhanced cooperation shall be adopted by the Council Council the by adopted be shall cooperation enhanced authorising decision par. 2: “The 20 Art. to act at the EU level. While it will be argued that this interpretation interpretation this that argued be it will While level. EU at tothe act to act jointly at the EU level. On the contrary, the procedure procedure the contrary, the On level. jointly EU to at act the , Vol. 463-480. p. 19, No. 3(2013), , 11 December 2012 (see especially par. 108). especially (see 2012 December , 11 66 Thewording of Art. 10 64 while outside of the 65

16 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI distort competition between them.” it nor shall States, Member between trade in to or discrimination abarrier not constitute It shall cohesion. territorial and social or economic, market internal the not undermine shall cooperation make clear when recalling themainscholarly views, there isnounivocal trendor of theEurozone. Whenjumping from procedures toinstitutions, asItried to I dealt with some recent proposals concerning thedifferentiated representation • the Union. integration, the guardian of those constitutional safeguards that inspire the life of 236, http://www.tilj.org/content/journal/48/num2/Ferreres223.pdf. Journal Law Texas International The Right in Strategy?”, the This Is this of coursematters), of theCourtconcerns thecontent of Art. 3only or all thecontents of theTSCGand mandate of theCJEU(aswe saw, it isnotclear from Art. 8TSCGwhether thetask different. Thisproblematic picture ismadeeven more complicated bytheuncertain just one of theelements recalled bytheEUTreaties andthus creating something EU Treaties provisions) or maybe “selective,” willing togive aparticular value to either pleonastic (byexpressingjustone of theelements recalled bytherelevant elements? Iseetwo possible interpretations here:thelastlinesof Art. 10could be in EUlaw andthisistrue, but why recall inanexpressedmannerjustone of these Art. 10inany caserefers toall therelevant norms disciplining thephenomenon 67 jsf?num=C-274/11). of Spain and Italian Republic of the vCouncil Union European Kingdom of 2013, 16 April Chamber) (Grand Court Judgment of the (CJEU, dismissed were Republic Italian the and of Spain Kingdom the by actions the and resort last of the condition of the breach alleging law in plea the rejected CJEU the decision subsequent its In 199. p. 2013), No. 3(August Integration Economic of Issues Legal in Judiciary”, EU Involvement of the First of the Light in of Multi-Speed Integration Practice and Law the Revisiting Scrutiny: under Cooperation “Enhanced Fabbrini, Federico See branches.” political EU the by action to review standard amanageable with judiciary EU the providing and rules of Treaty circumvention order, preventing market isjustone of theelements included inArt. 326TFEU. that enhanced cooperation shall not underminetheinternal market, but internal provisions included inthefundamental EUTreaties: Art. 10TSCGonly states There isanother reason for why thetext of Art. 10isat oddswith its correspondent Member States at that time. an option before theconclusion of theTSCG,but it wasnotexploited bytheEU through enhancedcooperation schemes.Ontheotherhand,thiswasalready TSCG might be,inprinciple, thepathway for the“communitarisation” of theTSCG It canbesaid–and,perhaps, thiswastheintention of thedrafters–that Art. 10 and EUlaw features. outside thescope of theEUframework, asit aims tobenefit from EUinstitutions international agreement outside thescope of theEUTreaties, it isnot completely TSCG seems toshow thehybrid nature of theTreaty itself. Even though it isan A Multi-Speed EU?An Institutional and Legal Assessment 68

Is differentiated representation desirable? Yes but… In thelastpartof thepaper Art. 326 TFEU: “Any enhanced cooperation shall comply with the Treaties and Union law. and Such Treaties the comply with shall cooperation “Any TFEU: 326 enhanced Art. On this see: Victor Ferreres Comella, “Amending the National Constitutions to Save the Euro: to the Save Constitutions National “Amending the Comella, Victor Ferreres see: this On 68 one of themostimportant actors intheprocess of EU , http://curia.europa.eu/juris/liste. , Vol. 48, No. 2 (Spring 2013), p. p. 2013), No., Vol. 2(Spring 48, 67 Onecould say that , Vol. 40, 17 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI marches_4421986_4350146.html. lemonde.fr/europeennes-2014/article/2014/05/20/thomas-piketty-la-democratie-contre-les- proposed, among others,by Piketty in thisfield); parliaments (but thiscould perhaps jeopardise therole of theEuropean Parliament publications/4602/The-Unhappy-State-of-the-Union. Bargain Grand New 75 74 73 72 71 70 69 could hardly becircumnavigated. Indeed, this discussion leads ustoamore general even more technical andcomplicated. Moreover, theprinciple stated inArt. 9TEU some of themaTreaty revision seemstobeunavoidable, makingthisdiscussion These issues arestill debated: scholarshave identified different solutions, and for interesting parallelism with theWest Lothianquestion intheUK, When reasoning intermsof aEuropean Parliament àlacarte andmakingan which could jeopardise theprinciple enshrinedinArt. 9TEU. traditionally beenclear inrefusingthepossibility of anasymmetric representation the deliberation andparticipation inthevote), while theEuropean Parliament has field of enhancedcooperation (based on thedistinction betweenparticipation in already provides for special procedures for thefunctioning of theCouncil inthe account and on the specific EUinstitution wehave inmind. As wesaw, 330TFEU asymmetric forces dependson theparticular asymmetric instrument taken into solution. The question of whether theEUshould give institutional form tothese A Multi-Speed EU?An Institutional and Legal Assessment parliamentary Chamberfor theEurozone; with thestandingcommittee on economic andmonetary affairs-ECON); 3)anew a sub-committee for the Eurozone (but in this case what should its relationship be the complex architecture inthisambit. www.parliament.uk/site-information/glossary/west-lothian-question. question”, Glossary in Lothian “West Walesand 1977.” on 14 Parliament, November UK See on adebate devolution to in Scotland question the raised famously for West Lothian, MP former the Dalyell, Tam since so-called been It has devolution. following constituencies English from of MPs those and constituencies Ireland Northern and Welsh Scottish, from of MPs of Commons House Commission or Euro Summit; parliaments, perhaps with aveto power on matters decidedbytheEuro-Group, Parliament elected inEurozone Countries or athird Chamberof Eurozone national delegations; to aratione materiae criterion or byattributing aright tovote tothenational the European Parliament bylimiting theexercise of theright tovote according those of 1)adifferentiated representation according totherights of members of have identified several options for differentiation. Among them, one could recall

See Jean Arthuis, Avenir Zone Euro de la Arthuis, Jean See Thomas Piketty, “Il faut donner un parlement àl’euro”, Monde parlement faut un Le donner in “Il Piketty, Thomas Cristina Fasone, “Il Parlamento europeo”, cit., p. 96-97. p. europeo”, cit., Parlamento “Il Fasone, Cristina The Unhappy a State of the Union. The Needs Europe Tsoukalis, also: Loukas See seq. et 85 p. Ibid, Cristina Fasone, “Il Parlamento europeo”, cit., p. 95 et seq. et 95 p. europeo”, cit., Parlamento “Il Fasone, Cristina Cristina Fasone, “Il Parlamento europeo”, cit., p. 86. p. europeo”, cit., Parlamento “Il Fasone, Cristina “The West Lothian Question refers to the perceived imbalance between the voting rights in the the in rights voting the between imbalance perceived to the refers Question West Lothian “The 70 72 2)adifferentiation within thecommittee systemwith thecreation of 5)aEurozone Parliament composed bymembersof theEuropean , London, Policy Network, March 2014, p. 77, p. 2014, http://www.policy-network.net/ March Network, Policy , London, 73 6)adirectly-elected Eurozone Parliament recently 74 , cit. , but which would perhaps result inincreasing 75 71 4)aConference of Eurozone national , 20 May 2014, http://www. 2014, May , 20 69 scholars , http:// , 18 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI flexible procedures –thereal constitutional dilemma of theEUnowadays. and unveils thehardchoice tobemadebetweeninstitutional inclusiveness and we want is inevitably connected to the idea of integration we might have in mind problem. In otherwords, theanswertoquestion about what kindof institutions A Multi-Speed EU?An Institutional and Legal Assessment Updated 2December2015 19 IAI WORKING PAPERS 15 | 48 - DECEMBER 2015 ISSN 2280-4331 | ISBN 978-88-98650-73-6 © 2015 IAI (2013), p.463-480 in theEconomic andMonetary Union’”, inEuropean Public Law, Vol. 19,No. 3 Few Considerations on theNew ‘Treaty on Stability, Coordination andGovernance Carlo MariaCantore andGiuseppe Martinico, “Asymmetry or Dis-integration? A download.pdf Federalism, Vol. 3,No. 3(2011),p.1-21, http://on-federalism.eu/attachments/103_ and theTension between Unity andAsymmetry intheEU”, inPerspectives on Carlo MariaCantore, “We’re One,but We’re nottheSame:EnhancedCooperation Baden, Nomos, 1999,p.43-56 Agranoff (ed.),Accommodating Diversity. 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