CENTRE FOR EUROPEAN POLICY STUDIES CEPS POLICY BRIEF NO. 33 MAY 2003 OPTIMISING THE MECHANISM FOR ‘ENHANCED COOPERATION’ WITHIN THE EU: RECOMMENDATIONS FOR THE CONSTITUTIONAL TREATY ERIC PHILIPPART CEPS Policy Briefs are published to provide concise policy-oriented analysis of contemporary issues in EU affairs. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which he is associated. Available for free downloading from the CEPS website (http://www.ceps.be) Copyright 2003, Eric Philippart Place du Congrès 1 ▪ B-1000 Brussels ▪ Tel: (32.2) 229.39.11 ▪ Fax: (32.2) 219.41.51 ▪ VAT: BE 424.123.986 e-mail: [email protected] • website: http://www.ceps.be OPTIMISING THE MECHANISM FOR ‘ENHANCED COOPERATION’ WITHIN THE EU: RECOMMENDATIONS FOR THE CONSTITUTIONAL TREATY CEPS POLICY BRIEF NO. 33/MAY 2003 * ERIC PHILIPPART EXECUTIVE SUMMARY Policy development in the EU is often impeded by member states being either unwilling or unable to participate. One way to overcome that problem is to resort to flexible approaches accommodating diversity. Convinced that an enlarged Union would require more flexibility, the current member states agreed in 1997 to introduce a new safety valve in the treaties, named ‘enhanced cooperation’. Thanks to that mechanism, a group of member states may be authorised to use the EU framework to further their cooperation or integration in policy areas under EU competence whenever it appears impossible to do so with all of the member states. There are a number of reasons why the Constitutional Treaty under negotiation should not only uphold such a mechanism, but should improve it in various respects. The future treaty should start by suppressing redundant preconditions for authorisation, introducing the possibility for a group of willing and able to gear up (i.e. adopt more efficient decision-making procedures and embrace higher ambitions), as well as extending the scope of enhanced cooperation to foreign and defence matters. It should also suppress the minimum participation threshold and clarify the last resort stipulation. As to authorisation, the future treaty should simplify the proposal procedure, specify what may be included in the proposal, streamline the consultation and deliberation procedures, and provide that, for CFSP too, the authorisation is given by the Council acting by qualified majority or superqualified majority. Participation in enhanced cooperation should be open to all, provided that objective criteria are met. The same conditions should apply for initial and subsequent participation. Admission to enhanced cooperation should be managed by the Commission under a single procedure. Regarding enhanced cooperation’s operating mode, the future treaty should stick to the current system of ‘institutional isomorphism’ (no variable geometry in the European Parliament or the Commission). Nevertheless, participating member states should be allowed to decide, acting unanimously, that enhanced cooperation shall be governed by qualified majority instead of unanimity and/or by co- decision procedure. They should also be authorised to hold restricted meetings at an informal level. The future treaty should further introduce the possibility to differentiate between the ‘pre-in’ (member states willing to participate but unable to do so from the start) and the ‘out’ (member states unwilling to participate). Finally, the status of the acts and decisions resulting from enhanced cooperation could be revisited. In any case, the future treaty should authorise the Council to decide by a qualified majority that the Union’s budget will support enhanced cooperation’s operational costs. * Researcher at the Belgian National Fund for Scientific Research (FNRS – Université Libre de Bruxelles), Professor at the College of Europe (Bruges) and Senior Associate Fellow at the Centre for European Policy Studies (CEPS). This policy brief benefited from the comments and suggestions of many decision-makers, officials and researchers too numerous to mention individually, as well as one anonymous referee. It is based on a study for the WRR, analysing and evaluating various forms of ‘flexibility’ discussed in the context of the European Convention and the upcoming Intergovernmental Conference (extra-EU cooperation, ‘opt-out’ and ‘opt-in’ arrangements, enhanced cooperation, and constructive abstention). See Philippart, Eric and Sie Dhian Ho, Monika (2003), Flexibility and the new constitutional treaty of the European Union, Scientific Council for Government Policy, The Hague, May (http://www.wrr.nl/en/frameset.htm see News). OPTIMISING THE MECHANISM FOR ‘ENHANCED COOPERATION’ WITHIN THE EU: RECOMMENDATIONS FOR THE CONSTITUTIONAL TREATY CEPS POLICY BRIEF NO. 33/MAY 2003 ERIC PHILIPPART 1 Brief assessment of the current mechanism for enhanced cooperation ‘Enhanced cooperation’ is a mechanism allowing a group of member states to use the EU framework to develop their cooperation or integration in policy areas under EU competence. The Council may grant that facility, provided that a number of conditions are met.1 The action envisaged by the group (made of at least eight member states) must be in line with the objectives of the Union, remain within the limits of the powers of the Union and not relate to matters having military or defence implications. Last but not least, this option may be undertaken only as a last resort (it must be established that the objectives of the enhanced cooperation cannot be attained within a reasonable period through ‘normal’ procedures). The use of the EU framework means that, if all members of the Council take part in the deliberations, only those representing the member states that are participating in enhanced cooperation take part in the adoption of decisions. For the rest, the institutions play the role they would normally play in the development of EU policies. The decisions taken only bind the participating members (‘variable geometry’) which, by default, bear the operational expenditures resulting from implementation of enhanced cooperation. This mechanism has been introduced by the Treaty of Amsterdam (1997) and revised by the Treaty of Nice (2000). No authorisation has yet been requested, but the establishment of enhanced cooperation 2 has been envisaged on several occasions. In half of the cases, it contributed to breaking the deadlock. 1 In that respect, the provisions on enhanced cooperation are enabling clauses. They define the conditions of authorisation for member states seeking closer cooperation to ‘make use of the institutions, procedures and mechanisms’ laid down by the TEU and the TEC. The wording of these provisions makes clear that closer cooperation as such is not the subject of authorisation under the treaty, but only the use of the EU framework. 2 The most manifest case is that of the 2000 unlocking of the regulation concerning the European Company Statute introduced in 1970 (!) by the European Commission (EC Regulation n° 2157/2001, Council of 8 October 2001) and the directive 2001/86/CE completing this status with regard to workers’ involvement. The final breakthrough happened after the presidency asked the legal services of the Council to inquire into the possibility of enhanced cooperation in this area. This unlocking is even more remarkable given that, at the time, the enhanced cooperation mechanism was under particularly drastic stipulations for authorisation. The possibility to implement a European arrest warrant under enhanced cooperation was one of the ingredients that contributed to a change of attitude on the part of the Berlusconi government in December 2001. The use of this mechanism was also brought up in areas such as energy taxation (European Commission and Swedish presidency in 2001) and the common code of company taxation (Commission suggestion of 23 October 2001), without this bringing about major concessions on the part of those unwilling to accept it. 1 ERIC PHILIPPART 2 Detailed evaluation of the current mechanism for enhanced cooperation3 2.1 The request – contents and conditions The request for using the Union’s framework is introduced by interested member states (right of initiative). There is an ambiguity regarding the contents of the request. The wording of the last resort provision seems to indicate that interested member states are expected to define the scope of action and objectives they intend to pursue through enhanced cooperation. This should be explicitly indicated. The recipient of the request is the Commission for the first and third pillars and the Council for the second pillar. This difference has a symbolic and political meaning, namely to assert the undivided control of the Council over CFSP. The appointment of a European Foreign Affairs Minister, replacing the High Representative for the CFSP and the Vice-President of the Commission in charge of external relations, would simplify the procedure at that level. In order to be taken into consideration for authorisation, a request must satisfy no less than 15 substantive and three procedural conditions. Except for the last resort condition, the treaties do not specify who is responsible for verifying whether those requirements are met. Logically speaking, this duty should fall on the institution responsible for the authorisation proposal. The substantive conditions specify what enhanced cooperation should aim at, what it should not entail and what is out of its scope of action. To be admissible, enhanced cooperation must aim at furthering the objectives of the Union, protecting and serving EU interests, and reinforcing the process of European integration. It is a priori only logical to restrict the use of the Union’s framework to endeavours that pursue the objectives endorsed by all. After all, that framework ‘belongs’ to and is financed by all member states. What seems less logical is the requirement made to enhanced cooperation in the field of CFSP to serve the Union’s interests by ‘asserting’ the Union’s ‘identity’. Indeed this suggests that the group of member states engaged in enhanced cooperation act as an agent of the Union, while it is said elsewhere that enhanced cooperation’s measures do not commit the Union.