CYIL vol. 10 (2019)

MAGDALÉNA SVOBODOVÁ CYIL 10 ȍ2019Ȏ procedure at present). The right to request a reference of the matter to the European Council was abolished. In its place, the establishment of enhanced cooperation depends on the proposal of the Commission. The Commission may decide not to submit the appropriate proposal and it shall inform the Member States of the reasons in this instance (Art. 329 TFEU). In comparison with the Treaties in the wording of the Treaty of Nice, the abolishment of the right to request the reference of the matter to the European Council slightly facilitates the authorisation procedure. On the other hand, it is tightened up a bit by the new conditions requiring the proposal of the European Commission and the consent of the European Parliament. However, it seems that these conditions do not impede the establishment of enhanced cooperation in practice. As to the minimum number of Member States which have to participate, the Lisbon Treaty increased it from 8 to 9. Nevertheless, the number of Member States in the EU has increased as well, from 15 Member States in 2001, when the Treaty of Nice was signed, up to 28. Thus, the requirement of 8 Member States involved in enhanced cooperation in 2001 stood for the participation of more than a half of them. This changed after the Eastern enlargement in 2004 when 10 new Member States entered the EU. Afterwards, 8 Member States required to establish enhanced cooperation represented approximately one third of all. This ratio remained more or less the same after the Lisbon Treaty. The current requirement of 9 Member States involved means participation of approximately one third of all Members. For the time being, there have been five cases of enhanced cooperation established: 1. Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation. 21 Initially, 14 Member States were participating, 3 more joined later (the Czech Republic is not involved). Subsequently, Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (so-called Rome III Regulation) 22 was adopted. 2. Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection. 23 The decision was unsuccessfully contested by Spain and Italy by an action for annulment before the Court of Justice. 24 26 Member States participated, including the Czech Republic. Only Spain and Croatia are not involved, Italy joined the enhanced cooperation later. Subsequently, Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012, implementing enhanced cooperation in the area of the creation of unitary patent protection 25 and Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements 26 were adopted. Both regulations were unsuccessfully contested by an action for annulment before the Court of Justice by Spain. 27

21 OJ L 189, 22.7.2010, pp. 12-13. 22 OJ L 343, 29.12.2010, pp. 10-16. 23 OJ L 76, 22.3.2011, pp. 53-55. 24 Joined cases C-274/11 and C-295/11 Spain and Italy v Council, ECLI:EU:C:2013:240.

25 OJ L 361, 31.12.2012, pp. 1-8. 26 OJ L 361, 31.12.2012, pp. 89-92. 27 C-146/13 Spain v European Parliament and Council, ECLI:EU:C:2015:298 and C-147/13 Spain v Council, ECLI:EU:C:2015:299.

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