CYIL vol. 10 (2019)

MAGDALÉNA SVOBODOVÁ CYIL 10 ȍ2019Ȏ establish closer cooperation. 10 Subsequently, a new instrument called “closer cooperation” was introduced by the Amsterdam Treaty signed in 1997 (entered into force in 1999). Closer cooperation (enhanced cooperation today) or, even more generally, differentiated integration has pros and cons. That is why some scholars and politicians advocate it and others oppose it. In short, the main advantage is apparent. It allows deeper integration for the willing Member States without forcing the others to participate. Nevertheless, there is a risk of a creation of a two-speed Europe, i.e. dividing Member States into two groups: “the hard core” of Member States which are more integrated, whereas the others fall behind (first- and second- classed membership). This may lead, at the end of the day, to European disintegration. 11 These concerns significantly affected the drafting of the Amsterdam Treaty. The Amsterdam Treaty inserted new provisions on closer cooperation between Member States into theTreaty on European Union (TEU), Articles 40-45 (ex Art. K.12-K.17). A number of conditions to be met in order to establish closer cooperation were laid down. It is worth noting that some of them are still in force. Closer cooperation must be aimed at furthering the objectives of the Union and at protecting and serving its interests. Moreover, it must respect the principles of the Treaties 12 and the single institutional framework of the Union. Closer cooperation is an ultima ratio , it shall be only used as a last resort, where the objectives of the Treaties could not be attained by applying the relevant procedures laid down therein. This rule (which is still included in the Treaties) demonstrates that unity in the European Union is still protected and closer cooperation is considered as an exception. Under the Amsterdam Treaty, at least a majority of Member States must be involved and that it is open to all Member States which may join the particular closer cooperation at any time. 13 The important principle of openness is also still in force. It guarantees that non-participating Member State may join the enhanced cooperation later at any time, which prevents the creation of first- and second- classed Union membership. It is important to point out the authorisation procedure. Closer cooperation is to be authorised by the Council acting by a qualified majority at the request of the Member States concerned. However, under Art. 40(2) of the TEU, if a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the granting of an authorisation, a vote shall not be taken. The Council may in such a case refer the matter to the European Council for decision by unanimity. Should this condition be in force at present, enhanced cooperation would not be established in some cases (see below). Despite the opportunity to establish closer cooperation, Member States did not take advantage of the new instrument. De Witte observes that the conditions imposed by the Amsterdam Treaty were so rigid that only one year after the new rules entered into force, the governments of the Member States started redrafting them. 14 The outcome was the adoption of provisions on enhanced cooperation in the Treaty of Nice signed in 2001. The Nice Treaty renamed the mechanism and reformed it. One of the important amendments changed the 10 MALÍŘ, p. 93. 11 For more details, see BARTOVIC, V. Vícerychlostní Evropa. Europeum, May 2016, p. 4, available at: http:// www.europeum.org/data/articles/bartovic-vicerychlostni-evropa.pdf [Accessed: 18 May 2019]. 12 The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) or – depending on the context – the Treaty establishing the European Community (TEC). 13 Art. 43 TEU in wording of the Amsterdam Treaty. 14 DE WITTE, B. Variable geometry and differentiation as structural features of the EU legal order, p. 17. In: DE WITTE, B., OTT, A., VOS, E. (eds.). Between Flexibility and Disintegration. The Trajectory of Differentiation in EU Law. Edward Elgar Publishing, 2017.

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