CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ ENHANCED COOPERATION IN THE EUROPEAN UNION … Council considered on 16 March 2016 that Estonia had completed the required formalities. 62 It is worth noting that the Treaties do not contain any explicit provisions on the withdrawal from enhanced cooperation. As a result, this lacuna raises questions of whether a Member State is allowed to withdraw from enhanced cooperation and, if so, under what conditions. The aforesaid case of Estonia indicates that this option is accepted (at least by the Council) and the procedure is very informal with no specific time-limit. In other words, the amendment of the authorising Council Decision is not demanded and thus enhanced cooperation, in terms of the withdrawal, constitutes a revolving door ( porte tournante ) instead of a Union à taille réduite. 63 To sum up, openness and flexibility are characteristics of enhanced cooperation in the EU. They are advantageous to the Member States but also beneficial for the European Union and European integration because they prevent the creation of the feared two-speed Europe. Instead, the enhanced cooperation has been leading to a multi-speed Europe for the time being. It has to be underlined that every single Member State participates in at least one enhanced cooperation. However, it is also apparent that some Member States are more interested in deeper integration than the others. For example, Denmark, Ireland, Poland, and the United Kingdom participate in one enhanced cooperation only (all of them in the area of unitary patent protection). By contrast, Austria, Belgium, France, Germany, Greece, Italy, Portugal, and Slovenia participate in all cases of enhanced cooperation. These lists are not very surprising. States such as Denmark or the United Kingdom, which are mentioned in the first group, have negotiated opt-outs from the Union primary law and the United Kingdom is even withdrawing from the EU at present. Some of the states from the other group – Belgium, France, Germany, Italy – are the founding sates of the European Communities and tend to promote European integration. It is also worth noting that Slovenia is the only Member State from Central/Eastern Europe which participates in each enhanced cooperation. Most Central and Eastern European countries remain somewhere in-between with a number of Western European countries (Finland, the Netherlands, Luxembourg, Spain, Sweden). The Czech Republic, for instance, participates in 3 cases of enhanced cooperation (out of 5). Conclusion: the potential of enhanced cooperation for the future of the EU The experience shows that enhanced cooperation has not led to the creation of the first- and second-classed membership in the EU and the concerns of European disintegration have not been confirmed. However, there have been only a few cases of enhanced cooperation up to the present when bearing in mind that this legal instrument (or closer cooperation formerly) was already introduced 20 years ago. When counting the frequency after the entry into force of the Lisbon Treaty, enhanced cooperation has been established only once every two years on average. De Witte observes that the cause may lie, among others, in the Council’s decision- making culture, which searches for consensus among all national delegations. 64 Enhanced cooperation has been profiled as a tool to overcome the unanimous voting in the Council. In the future, it may also be established in areas with a qualified majority voting 62 See KELLERBAUER, M., KLAMERT, M., TOMKIN, J. (eds.). The EUTreaties and the Charter of Fundamental Rights: a Commentary , Oxford University Press, 2019, p. 195. 63 See Editorial Comments. Enhanced cooperation: a Union à taille réduite or à porte tournante? Common Market Law Review, 2011, Issue 2, pp. 324-325. 64 DE WITTE, p. 17.

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