CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) primary EU law. This automatic procedure reinforces the critiques of the shift in the balance of powers towards the supranational institutions in distributive policies areas, instead of towards the Member States. There is no doubt that both the TSCG and the ESMT are examples of differentiated integration in the sense that they are agreements concluded only between Member States of the Union and “partial” 13 , ie concluded between only a part of them. The opinion of the writer is that, without prejudice to the issues and deficiencies that each system of differentiated integration intrinsically presents, it is possible to bring back to full legitimacy the enhanced cooperation in comment, albeit to very precise conditions. The first of these concerns the moment from which Member States move forward can legitimately decide to continue on their own differentiated path: the aspect in comment is one of the most delicate, since it is all too evident that the interests (financial, in this case) of the EU would not be adequately protected if any unsuccessful negotiations could lead to one or more enhanced cooperation, to the detriment of the search for a compromise. As part of the ordinary procedure of enhanced cooperation, the problem is solved by emphasizing the guarantee role of the Council of the EU: however, the hypothesis in question is characterized precisely by the pretension of the Council’s role as a filter (although, one could argue, this lack is partially balanced by the role of the Council of the EU). So a systematic interpretation of the provisions on enhanced cooperation is required: as is true, that art. 43, par. 1, lett. c), TEU (now art. 49 TFUE) 14 , in the version prior to the Treaty of Lisbon, provided that enhanced cooperation could be put into place only if “it had not been possible to achieve the objectives of Treaties applying the relevant procedures referred to therein” 15 , with this legitimizing an interpretation such that the moment of initiation should be that of interrupting the ordinary course of the legislative procedure, then the Treaty of Lisbon certainly looked favorably on the launch of enhanced cooperation 16 . 13 DYSON, K., SEPOS, A. Differentiation as design principle and as tool in the political management of European integration, in DYSON, K., SEPOS, A. (eds.) Which Europe? The politics of differentiated integration , ed. Palgrave Macmillan, Basingstone, 2010, pp. 3–23. HOLZINGER, SCHIMMELFENNIG, K. F. Differentiated integration in the European Union: Many concepts, sparse theory, few data, in Journal of European Public Policy , 19 (2), 2012, pp. 292–305. KROLL, D., LEUFFEN, D. Enhanced cooperation in practice: an analysis of differentiated integration in EU secondary law, in Journal of European Public Policy , 22 (3), 2015, pp. 353–373. SCHIMMELFENNING, F., WINZEN, T. Instrumental and constitutional differentiation in the European Union, in Journal of Common Market Studies , 52 (2), 2014, pp. 354–370. SCHIMMELENNIG, F., LEUFFEN, D., RITTEBERGER, B. The European Union as a system of differentiated integration: Interdependence, politicization and differentiation, in Journal of European Public Policy , 22 (6), 2015, pp. 764–782. 14 GOVAERE, I., POLI, S. European Union management of global emergencies: Legal framework for combatting threats and crises , ed. Brill/Nihoff, Leiden, Boston, 2014. DE VRIES, G. The nexus between European Union crisis management and counter, in BLOCKMANS, S. (ed.), The European Union and crisis management. Policy and legal aspects , T.M.C. Asser Press, The Hague, 2008. LUCARELLI, S., VAN LANGENHOVE, L., WOUTERS, J. The European Union and multilateral security governance , ed. Routledge, London & New York, 2013, pp. 84ss. 15 DOSENRODE, S. The European Union after Lisbon: polity, politics, policy , ed. Routledge, London & New York, 2016. 16 For further details see also: COUNTOURIS, N., LIANOS, I. The European Union after the Treaty of Lisbon , Cambridge University Press, Cambridge, 2012, pp. 109–135. CRAIG, P. The Lisbon treaty. Law, politics and treaty reform , Oxford University Press, Oxford, 2013, 68ss. CRAIG, P., DE BÚRCA, G. (eds.), The evolution of EU Law , Oxford University Press, Oxford, 2011. VIRSEDA FERNÁNDEZ, C. Uniòn europea, Editorial Aranzadi , Pamplona, 2020. HARATSCH, A., KOENIG, C., PECHSTEIN, M. Europarecht , Mohr


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