CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ ENHANCED COOPERATION IN THE EUROPEAN UNION … of the European Union. One of the scenarios concerns the option of certain Member States to do more together in specific policies such as defence, internal security, taxation, or social matters (see scenario No 3 titled “Those who want more do more”). This scenario would in a way follow the process of European integration up to now, because so far, to certain extent, not all the Member States have been always participating in all the activities at the Union level (see for instance Schengen agreements, monetary union, social policy in the past). In the light of Brexit, it seems prudent more than ever not to force the Member States to undertake all obligations potentially stemming from EU law. One of the instruments of EU law which allows the willing Member States to do more even now is enhanced cooperation. 6 Enhanced cooperation constitutes a follow-up to the former closer cooperation which was introduced 20 years ago by the AmsterdamTreaty. Since the entry into force of the Lisbon Treaty, Member States have taken advantage of enhanced cooperation several times. For the time being, there have been five cases of enhanced cooperation established by the Member States, the last one concerning European Public Prosecutor’s Office. First, the paper aims at analysing the reasons and circumstances for establishing enhanced cooperation in the EU so far and evaluating the experience with this legal instrument. Second, the author shall consider its potential for the future of the European Union. Development of enhanced cooperation in brief In this paper, the author does not focus on a thorough analysis of the history and development of enhanced cooperation because it is available in other papers or monographs. 7 However, it is useful at the outset to briefly mention the roots and evolution of this instrument. Initially, until the mid-80s, European integration was based on “unity dogma” which was justified by the necessity to build the common market in the European Communities. 8 Nevertheless, new states entered the Communities and the unity dogma was gradually moderated. In 1985, the famous Schengen agreement 9 was concluded where only 5 Member States out of 10 were contracting parties. Heterogeneity among the Member States was growing and it was evident after the adoption of the Single European Act that the unity dogma was not sustainable any more. Malíř mentions that the political roots of what we know today as the “enhanced cooperation” can be traced in a joint letter by J. Chirac andH. Kohl to the Presidency of the European Council in December 1995. In the letter both politicians expressed their views that, under certain circumstances, willing Member States should have a chance to 6 There are also other options for the willing Member States to cooperate. They may establish Permanent Structured Cooperation (PESCO) in military area under Article 46 of the Treaty on European Union or conclude an international agreement (e.g. the so-called Fiscal Compact). However, these forms of cooperation are not the focus of this paper. 7 See for instance MALÍŘ, J. Enhanced Cooperation in the EU: Its Evolution and Position of the Czech Republic, Studia Europejskie – Studies in European Affairs , 2019, Issue 1, pp. 89-112 or DE WITTE, B., OTT, A., VOS, E. (eds.). Between Flexibility and Disintegration. The Trajectory of Differentiation in EU Law. Edward Elgar Publishing, 2017. 8 See JOANNIN, P. The acceleration of differentiated integration and enhanced cooperation. European Issue No 328 , 13 October 2014. Available at: https://www.robert-schuman.eu/en/european-issues/0328-the-acceleration- of-differentiated-integration-and-enhanced-cooperation [Accessed: 18 May 2019]. 9 Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.

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