CYIL vol. 10 (2019)

MAGDALÉNA SVOBODOVÁ CYIL 10 ȍ2019Ȏ in the Council, but in these instances the support of enhanced cooperation would be rather low because of the possibility of simply outvoting the dissenting states. Currently, only 55% of the members of the Council, comprising of at least 15 of them and representing Member States comprising of at least 65% of the population of the EU are sufficient to adopt an appropriate act (with some exceptions). 65 It is evident that the Treaties prefer action by all Member States since enhanced cooperation is supposed to be the last resort. In case not all the Member States participate, it is desirable to have as many states involved as possible. 66 It should be remarked that the Treaty provisions do not allow the establishment of enhanced cooperation in the situation when the Council acts by qualified majority, some Member States disagree but there are enough Member States to outvote them. In this situation, enhanced cooperation is not a last resort, the dissenting states may be outvoted and the adopted act will be binding on them. Nevertheless, this situation may pose a threat to European integration when used systematically against certain Member States in a specific area. For instance, relocation of asylum seekers in the EU is a sensitive issue for Central European Member States, and when promoted despite their persistent opposition, it may discourage them from European integration and contribute to the rise of populist and anti-European parties in these countries. 67 In my opinion, further differentiation shall be inevitable for the successful future of the European Union. The number of the Member States has been gradually growing from the original 6 Member States to the current 28. Further enlargement is planned, especially towards the Balkan Peninsula 68 , and this will result in an even more heterogeneity within the EU. Enhanced cooperation may serve as one of the instruments of differentiation. Týč mentions other legal instruments, for instance opt-outs from the Treaties or the possible partial return to the intergovernmental method using international agreements. 69 Nevertheless, disadvantages and problematic aspects of the enhanced cooperation should also be mentioned. The phenomenon that legal acts adopted in the framework of the enhanced cooperation are not binding on all Member States but only on participating countries makes the EU law even more complicated and constitutes different standards across the EU. On the other hand, this phenomenon is very well known from international public law where various international agreements are concluded by various contracting parties. It is also somewhat problematic that the European Parliament votes as a whole on legal acts implementing enhanced cooperation, i.e. the MEP’s from non-participating countries may vote as well (in the Council, only members from participating Member States vote 70 ). Nevertheless, it seems, at least for the time being, that advantages prevail and enhanced cooperation is a useful tool which may help coping with increasing diversity in the EU. 65 Art. 16(4) TEU and Art. 238(3) TFEU. 66 Under Art. 328(1) TFEU, the Commission and the Member States shall ensure that they promote participation by as many Member States as possible. 67 See also TÝČ, V. Enhanced Cooperation and International Treaties Between Member States as the Possible Means for Overcoming the Increased Heterogeneity of the European Union, p. 218. In: ŠIŠKOVÁ, N. (ed.). The European Union – What is Next? a Legal Analysis and the Political Visions on the Future of the Union. Wolters Kluwer, 2018. 68 For details see https://europa.eu/newsroom/highlights/special-coverage/enlargement_en [Accessed: 2 June 2019]. 69 See TÝČ, pp. 216-221. 70 Art. 330 TFEU, Art. 20(3) TEU.

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