CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ ENHANCED COOPERATION IN THE EUROPEAN UNION … authorisation procedure. Although the Treaties still guaranteed the right of a member of the Council to request the reference of the matter to the European Council, the right of veto at the level of the European Council was abolished. 15 This facilitated the authorisation procedure. On the other hand, the assent of the European Parliament was newly required in areas covered by the co-decision procedure. 16 Furthermore, the Nice Treaty reduced the minimum number of Member States which were willing to establish enhanced cooperation to a fixed number of 8 Member States. 17 In spite of the fact that the Treaty of Nice somewhat softened the conditions, no enhanced cooperation was established until 2010, i.e. after the Lisbon Treaty entered into force. It is not self-evident why, but one may guess that it was due to political rather than legal grounds. In the context of Eastern enlargement of the EU in 2004, there might have been strong political concerns that enhanced cooperation would lead to a two-speed Europe and that the “old” Member States would represent the “hard core” of European integration unlike the countries from Central and Eastern Europe. On the other hand, Peers remarks that some Member States considered the enhanced cooperation to be a useful tool to avoid a slowdown of European integration due to Eastern enlargement. 18 It is also worth noting in this connection that the first enhanced cooperation regarding law applicable to divorce and legal separation was already proposed before the entry into force of the Lisbon Treaty but the Commission delayed the adoption of its opinion for almost two years. 19 Enhanced cooperation was finally established in 2010 in line with the provisions revised by the Lisbon Treaty. Experience with enhanced cooperation up to now At present, after the entry into force of the Lisbon Treaty, the general rules on enhanced cooperation are laid down in Art. 20 TEU and Art. 326-334 of the Treaty on the Functioning of the European Union (TFEU). 20 Here are some significant rules: – enhanced cooperation shall be open at any time to all Member States (Art. 20(1) TEU); – enhanced cooperation shall be established as a last resort; – it shall be established only within the framework of the non-exclusive competences of the EU; – at least nine Member States shall participate; – acts adopted within the framework of enhanced cooperation shall bind only the participating Member States (Art. 20(2) TEU); – authorisation to proceed with enhanced cooperation shall be granted by the Council acting by a qualified majority (by unanimity in the area of common foreign and security policy), on a proposal from the Commission and after obtaining the consent of the European Parliament. The European Parliament has to give its consent in each case, not exclusively in the areas of co-decision procedure (ordinary legislative 15 Art. 40a(2) TEU and Art. 11(2) TEC in wording of the Treaty of Nice. 16 Art. 11(2) TEC in wording of the Treaty of Nice. 17 Art. 40a(2) TEU in wording of the Treaty of Nice. 18 PEERS, S. Divorce European Style: The First Authorization of Enhanced Cooperation, European Constitutional Law Review , 2010, Issue 6, p. 342. 19 See CANTORE, C. M. We’re one, but we’re not the same: Enhanced Cooperation and the Tension between Unity and Asymmetry in the EU, Perspectives on Federalism , 2011, Issue 3, p. 11, or PEERS, p. 346. 20 There are also specific procedural rules. See for details footnote No 35 concerning Art. 86(1) TFEU.

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