Enhanced cooperation

INTRODUCTION

The Treaty of Amsterdam created the formal possibility of a certain number of Member States establishing enhanced cooperation between themselves on matters covered by the Treaties, using the institutions and procedures of the European Union.

Although these provisions had never been used, the European Council considered it necessary to revise them with a view to making them less restrictive in the context of the enlargement of the Union to 27 Member States. Enhanced cooperation was not included in the original mandate of the Intergovernmental Conference (IGC) but was formally included by the Feira European Council of 20 June 2000.

The Treaty of Nice facilitates the establishment of enhanced cooperation: the right of veto which the Member States enjoyed over the establishment of enhanced cooperation has disappeared (except in the field of foreign policy), the number of Member States required for launching the procedure has changed from the majority to the fixed number of eight Member States, and its scope has been extended to the common foreign and security policy (CFSP). The general provisions applicable to enhanced cooperation have been grouped together in Title VII of the Treaty on European Union (EU Treaty). The provisions on triggering the procedure and on the future participation of other Member States vary across the three pillars.

GENERAL CONDITIONS

The Treaty of Nice significantly amends Title VII of the EU Treaty concerning enhanced cooperation, albeit without fundamentally altering the system. Article 43 groups together the fundamental principles underpinning enhanced cooperation. The Treaty of Nice adds a new condition: enhanced cooperation must contribute to enhancing the process of integration within the Union and must not undermine the single market or the Union's economic and social cohesion. Furthermore, it must not create a barrier to or discrimination in trade between the Member States and must not distort competition between them. The Treaty of Nice sets the minimum threshold for establishing enhanced cooperation at eight Member States, regardless of the total number of Member States after the enlargement.

The new Article 43A provides that enhanced cooperation may be undertaken only as a last resort, when it has been established within the Council that the objectives of such cooperation cannot be attained within a reasonable period by applying the relevant provisions of the Treaties.

The new Article 43B requires that enhanced cooperation shall be open to all Member States when it is established. It shall also be open to them at any time, provided the Member State in question complies with the decisions taken within that framework. The Commission and the Member States shall ensure that as many Member States as possible are encouraged to take part.

The amended Article 44 now stipulates that acts adopted within the framework of enhanced cooperation shall not form part of the Union acquis. Acts adopted within the framework of enhanced cooperation shall be applied by the participating Member States and their implementation shall not be impeded by the other Member States.

Expenditure resulting from enhanced cooperation (other than administrative costs) shall be borne by the participating Member States, unless all members of the Council, acting unanimously after consulting the European Parliament, decide otherwise. The Parliament has only become involved in this procedure with the Treaty of Nice.

The amended Article 45 now stipulates that the Council and the Commission shall ensure the consistency of activities undertaken within the framework of enhanced cooperation with the other policies and activities of the Union.

THE EUROPEAN COMMUNITIES

The general conditions laid down in Article 43-45 of the EU Treaty apply to enhanced cooperation established in an area covered by the Treaty establishing the European Community (EC Treaty). As a result, the EC Treaty merely describes, in Articles 11 and 11A, the procedures specific to this pillar for the establishment of and subsequent participation in enhanced cooperation.

Member States intending to establish enhanced cooperation within the framework of the EC Treaty shall address a request to the Commission, which may submit a proposal to the Council to that effect. Authorisation shall be granted by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament. A member of the Council may still request that the matter be referred to the European Council of Heads of State and Government. Following this final discussion, the matter is referred back to the Council of Ministers, which may act by the majority provided for in the Treaties. The right of veto granted to the Member States by the Treaty of Amsterdam has thus been abolished.

When enhanced cooperation relates to an area covered by the co-decision procedure (Article 251 of the EC Treaty), the assent of the European Parliament shall be required in accordance with the Parliament's rights under this procedure.

Article 11A lays down the procedure applicable to the subsequent participation of a Member State. The Commission shall decide on the request of a Member State to participate in enhanced cooperation. The role of the Commission is thus more important within the framework of the EC Treaty than within the other pillars.

THE COMMON FOREIGN AND SECURITY POLICY

The Treaty of Nice has introduced the possibility of establishing enhanced cooperation within the "second pillar", the common foreign and security policy (Title V of the EU Treaty). This represents one of the major developments of the Treaty of Nice in this area. New provisions (Articles 27A to 27E) laying down the specific rules of application in the area of the CFSP have been added to the EU Treaty.

Enhanced cooperation in the area of the CFSP shall be aimed at safeguarding the values and serving the interests of the Union as a whole and shall respect the principles, objectives, general guidelines and consistency of the CFSP, the powers of the European Community and the consistency between all the Union's policies and its external activities. Such enhanced cooperation shall relate only to the implementation of a joint action or a common position. However, it shall not relate to matters having military or defence implications.

Member States which intend to establish enhanced cooperation between themselves shall address a request to the Council to that effect. Authorisation shall be granted by the Council, acting by a qualified majority on the opinion of the Commission and after having informed the Parliament. However, Article 23 of the EU Treaty provides that a Member State may request that the matter be referred to the European Council for a decision by unanimity. Member States thus retain their right of veto in this area.

The Parliament and the other members of the Council shall be kept fully informed of the implementation of enhanced cooperation. This task is incumbent on the High Representative for the common foreign and security policy.

POLICE AND JUDICIAL COOPERATION IN CRIMINAL MATTERS

Within the EU's "third pillar", police and judicial cooperation, the provisions of Article 40 of the EU Treaty concerning enhanced cooperation have been amended. The Article stipulates that such cooperation shall have the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice. Secondly, the Treaty of Nice has widened the scope of the powers of the Court of Justice in this area.

The new Article 40A lays down the procedure for establishing enhanced cooperation. Member States which intend to establish enhanced cooperation between themselves under Article 40 shall address a request to the Commission, which may submit a proposal to the Council to that effect. Authorisation shall be granted by the Council, acting by a qualified majority on a proposal from the Commission or on the initiative of at least eight Member States and after consulting the European Parliament. The new Article 40B lays down the procedure for the subsequent participation of a Member State. The decision shall be taken by the Council, acting by a qualified majority of participating Member States.

SUMMARY TABLE