CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ ENHANCED COOPERATION IN THE EUROPEAN UNION … tax and that the banks would compensate it by means of imposing costs for their services which would be paid by their clients. 45 Setting-up the European Public Prosecutor’s Office (EPPO) has not been easy at all. Not only was the unanimity in the Council not reached at the beginning but also the so-called yellow card was triggered by the national parliaments in 2013. National parliaments issued 13 reasoned opinions (representing 18 votes) condemning that the proposal on the EPPO was not in conformity with the Union principle of subsidiarity. However, the Commission came to the conclusion that the proposal did not breach the principle and decided to maintain the proposal. 46 The EPPO Regulation which was subsequently adopted within the framework of the enhanced cooperation would not apply in Denmark, Ireland, and the United Kingdom due to the Protocols No 21 47 and No 22 48 joined to the Treaties. Hungary, Poland, and Sweden have not joined the enhanced cooperation. The Hungarian government, for instance, argued that there were institutions already established to fight crimes against the Union’s financial interests and that the EPPO would just weaken the functioning of these institutions. 49 As already outlined above, Member States could have prevented establishing closer cooperation introduced by the Amsterdam Treaty by referring the matter to the European Council which would then act unanimously. In other words, they had a right of veto in the European Council and thus any single Member State could have voted against enhanced cooperation in order to stop it. However, the right of veto was removed by the Treaty of Nice and the opposing Member States now have no instrument to impede the establishment of the enhanced cooperation ex ante . Therefore, the only legal option is an action for annulment within the meaning of Art. 263 TFEU, which can be lodged ex post after a Council decision authorising the enhanced cooperation was adopted. Indeed, the opposition of certain Member States in some cases was tough and they brought the action before the Court of Justice but they were not successful in either case. Spain and Italy sought an annulment of the Council Decision authorising enhanced cooperation in the area of the creation of unitary patent protection (joined cases C-274/11 and C-295/11). 50 Moreover, Spain contested both implementing regulations as well (C-146/13 and C-147/13). The United Kingdom brought an action against the Council Decision authorising enhanced cooperation in the area of financial transaction tax (C- 209/13). In joined cases C-274/11 and C-295/11, Spain and Italy claimed, among others, that the condition of enhanced cooperation as a last resort was not satisfied. They condemned 45 See Vláda proti dani z finančních transakcí, poškodila by prý klienty bank. [Government against a financial transaction tax, it would harm banks’ clients] E15.cz, 31. 8. 2011, available at: https://www.e15.cz/domaci/ vlada-proti-dani-z-financnich-transakci-poskodila-by-pry-klienty-bank-695862 [Accessed: 29 May 2019]. 46 See Annual Report 2013 from the Commission on subsidiarity and proportionality, 5 August 2014, COM(2014) 506 final. 47 Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice. 48 Protocol (No 22) on the position of Denmark. 49 See European Public Prosecutor´s Office now has 22 members, Portfolio, 8 August 2018, available at: https:// www.portfolio.hu/en/economy/european-public-prosecutors-office-now-has-22-members.36958.html [Accessed: 30 May 2019]. 50 For critical assessment of the judgment see FABBRINI, F. Enhanced Cooperation under Scrutiny: Revisiting the Law and Practice of Multi-Speed Integration in Light of the First Involvement of the EU Judiciary. Legal Issues of Economic Integration , 2013, Issue 3, pp. 197-224.

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