Current Challenges of European Integration E-Book

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Veröffentlichungsjahr: 2021

Beschreibung

Crises have long been a recurring feature of European integration. In many cases, further steps toward integration have only been possible under the pressure of such crises. However, in recent years, the EU has faced multiple, overlapping crises, at times calling the integration process itself into question. In 2015, the eurozone crisis escalated to the point where, for the first time, a member state faced the possibility of exiting the eurozone. At the same time, the massive influx of refugees into the EU exposed significant shortcomings in both the Schengen area and the common asylum policy. Finally, the British referendum on 23 June 2016 resulted in a majority vote in favor of Brexit, marking the first-ever departure of a member state from the EU. Against this backdrop, the 12th Network Europe conference examined the numerous challenges facing the EU as well as potential future scenarios for European integration. The publication includes contributions from André S. Berne, Jelena Ceranic Perisic, Viorel Cibotaru, Alex de Ruyter, Ivana Kunda, Tobias Lock, Lee McGowan, Peter Christian Müller-Graff, Tatjana Muravska, and Attila Vincze. Network Europe was founded in 2003 by the Europa Institute at the University of Zurich with support from the Swiss government. It serves as a forum for scholarly exchange on legal and political aspects of European integration, bringing together researchers from across Europe.

Leseprobe

Publisher: Andreas Kellerhals, Tobias Baumgartner

Current Challenges of European Integration

12th Network Europe Conference, 9 – 10 November 2020

Current Challenges of European Integration by Europa Institut an der Universität Zürich is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License, except where otherwise noted.

© 2021 – CC BY-NC-ND (Book), CC-BY-SA (Text)

Editors: Andreas Kellerhals, Tobias Baumgartner – Europa Institut an der Universität ZürichPublisher: EIZ Publishing (https://eizpublishing.ch)Layout & Production: buch & netz (https://buchundnetz.com)Cover: buch & netzISBN:978-3-03805-406-1 (Print – Softcover)978-3-03805-440-5 (PDF)978-3-03805-441-2 (ePub)DOI: https://doi.org/10.36862/eiz-406Version: 1.01-20210819

This work is available in print and various digital formats. Additional information is available at https://eizpublishing.ch/publikationen/current-challenges-of-european-integration/.

Contents

PrefaceAuthorsEuropean Integration: Historical Landmarks, Status and Future OptionsPeter Christian Müller-GraffPeter Christian Müller-GraffEnhanced Cooperation: Implementations and Effects on the European Integration ProcessAndré S. BerneAndré S. BerneDemocracy, Rule of Law and Human Rights as Essentials for European Integration?Attila VinczeAttila VinczeExperiences and Challenges of Croatia as EU Member StateIvana KundaIvana KundaEU Eastern Partnership and Neighbourhood Policy from Moldova’s Perspective: Current Status and OutlookViorel CibotaruViorel CibotaruProspects for Integration in the Western BalkansJelena Ceranic PerisicJelena Ceranic PerisicNew Reality: Navigating Economic Governance in the EU and Baltic StatesTatjana MuravskaTatjana MuravskaNorthern Ireland after Brexit: Still Connected to the European UnionLee McGowanLee McGowanFuture Participation in the Single Market: Prospects for Northern Ireland, Scotland and WalesTobias LockTobias LockBrexit and Beyond: UK's Future Relationship with the EUAlex de RuyterAlex de RuyterList of Publications

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Preface

Crises are not a new phenomenon in the context of European integration. Additional integration steps could often only be achieved under the pressure of crises. As early as the 1970s, for example, there were talks of “Eurosclerosis” before Jacques Delors brought new dynamics to the European project with his proposal for a single European market. At present, however, the EU is characterised by multiple crises, so that the integration process as a whole is sometimes being questioned:

In 2015, the crisis in the eurozone had escalated to such an extent that for the first time a member state was threatened to leave the eurozone – and could barely be averted. This does not alter the fact that the common monetary union is a half-finished integration project; among the member staates there is disagreement on the further development of the euro zone. Furthermore, the massive influx of refugees into the EU has revealed the shortcomings of the Schengen area and the common asylum policy. Finally, with the majority vote of the British in the referendum of 23 June 2016 in favour of the Brexit, the withdrawal of a member state became a reality for the first time.

Even in the words of the European Commission, the EU has reached a crossroads. Against this background, the Commission published a White Paper on the Future of Europe in March 2017. The White Paper explored how the EU might change over the next years, taking into account the impact of new technologies on society and employment to concerns about globalisation, security issues and growing populism. At the same time, the EU’s external relations with neighbouring countries in the East are subject to broad consultation processes to reflect on the future strategic direction. In particular, the crisis in Ukraine, which started in 2014, has raised doubts about the efficiency of the European Neighbourhood Policy of the last years.

The twelfth Network Europe conference included talks on the numerous challenges and future integration scenarios in Europe.

Zurich, July 2021

Andreas Kellerhals Tobias Baumgartner

2

Authors

Dr. Tobias Baumgartner, LL.M., Deputy Director, Europa Institute at the University of Zurich, Switzerland

André S. Berne, LL.M., Research Assistant, Europa Institute at the University of Zurich, Switzerland

Prof. Dr. Jelena Ceranic Perisic, Institute for Comparative Law, Belgrade, Serbia

Dr. Viorel Cibotaru, European Institute for Political Studies, Chisinau, Moldova

Prof. Dr. Alex de Ruyter, Centre for Brexit Studies, Birmingham City University, England

Prof. Dr. Andreas Kellerhals, LL.M., Director, Europa Institute at the University of Zurich, Switzerland

Prof. Dr. Ivana Kunda, Vice-Dean for Research Head of the Chair of International and European Private Law, University of Rijeka, Croatia

Prof. Dr. Tobias Lock, Jean Monnet Chair in EU Law and Fundamental Rights, Department of Law, Maynooth University, Ireland

Prof. Dr. Lee McGowan, Jean Monnet Chair in European Integration, Queen’s University Belfast, Belfast, Northern Ireland

Prof. Dr. Dr. h.c. mult. Peter Christian Müller-Graff, Institut für Deutsches und Europäisches Gesellschafts- und Wirtschaftsrecht, Ruprecht-Karls-Universität Heidelberg, Germany

Prof. Dr. Tatjana Muravska, Centre for European and Transition Studies, University of Latvia, Rīga, Latvia

European Integration:Historical Landmarks, Status and Future Options

Peter Christian Müller-Graff

Peter Christian Müller-Graff

Table of Contents

Structural Landmark Achievements of European IntegrationLegally Based Political CohesionEconomic CohesionCommon Global AssertationCivil and Social CohesionValue CohesionThe Status of European IntegrationThe Fundamental ChallengeMultiple Single Cohesion ChallengesCurrent Challenges to Economic CohesionCurrent Challenge to Civil CohesionCurrent Challenges to Value CohesionCurrent Challenges to Common Global AssertionThe Options of European IntegrationInternal CohesionAvoiding Excessive Asymmetric Developments in the EconomyAvoiding Excessive Asymmetric Developments in ValuesCommon Self-Assertion in Foreign RelationsCompetitiveness in International TradePromotion of Self-SufficiencyAssumption of Planetary ResponsibilityConclusionBibliography

“European integration – historical landmarks, status and future options” is the topic of this introductory lecture assigned to me by the organisers of the 12th Network Europe Conference on “Current Challenges of European Integration”.[1] Before addressing challenges the organisers have very wisely planned for creating an awareness of the historical landmarks which I understand as being the structural achievements to which the status of current challenges and future options can be related.

European integration in its peak form of the European Union is a novel organism in the stream of international relations and human history. It is still a short section in the flow of time, yet the success period of our life time – beginning nearly 70 years ago with the establishment of the European Community for Coal and Steel in 1951/52 as a unique turning point in Europe’s history. Why that? And what other structural achievements characterise its course until today, in which its current status and future options fit in? These are three questions to be looked at in closer detail.

Structural Landmark Achievements of European Integration

Beyond any doubt many events could be historically emphasized as structural landmark achievements in seven decades depending upon the professional perspective. Political examples would be the sequence of new Treaties for continuously enlarging and deepening the European Communities and later the European Union (regardless of the wavering attitude of the United Kingdom), the steps of cutting back the unanimity principle in its Council, the introduction of direct elections to the European Parliament, the stations of strengthening its powers and the creation of the status of citizenship of the Union which contains even rights of partial participation in public tasks of other Member States.[2] Economic examples include the establishment of the internal market and the common currency with its continuous welfare benefits and emerging power position in international trade. Legal examples include the many groundbreaking decisions of the Court of Justice for the rise and flourishing of a new communitarian type of transnational law, the enactment of the Charter of Fundamental Rights and the gradual triggering of the “Brussels effect” for international standard setting.[3] Sociological examples include the realisation of the prohibition of discrimination on grounds of nationality and the factual emergence of multifold transnational human connections[4] and tolerance within the European Union. Taking a more conceptual and systematic view of the legally achieved integration I suggest that in particular five structural steps deserve to be mentioned: legally based political cohesion (1.), economic cohesion (2.), common global assertion (3.), civil and social cohesion (4.), and value cohesion (5.).

Legally Based Political Cohesion

The very first landmark was the voluntarily agreed cut back of national sovereignty in a defined and limited area as an instrument for peace – hence a break with the traditional method of peace treaties which only balanced power sovereignties for a short time. The lasting cut back was the core idea of the European Coal and Steel Community – more precisely the realization of Jean Monnet’s idea of the voluntary subordination of these two economic sectors of six West European countries, in particular of France and Germany, to a supranational High Authority,[5] and by that, however limited, the beginning of a law- based institutionalized political cohesion.

Economic Cohesion

The second structural landmark was the realization of the idea of an overall common area of welfare (hence: of economic cohesion) as realized by the Treaty establishing the European Economic Community in 1958 in the form of the ingenious concept of a common market – not by traditional trade agreements, but by legally establishing an area in which the autonomous process of the free and competitive movement of goods, persons, services and capital is guaranteed[6]. This process is driven by the potentially millions of autonomous initiatives and preferences of private actors[7] and is protected by a common commercial policy towards the wider world.[8] This common welfare idea – called “internal market” since the Single European Act[9] – expanded geographically from originally six founding states to twenty-eight member states in 2013 – thereby overcoming Europe’s East-West division imposed by external powers after World War II and triggering enormous economic, legal and political transformations in all East Central European states, which successively led to their membership in the Union.[10] The common welfare idea in its legally supranational content also expanded from the basic concept of the Common Market to flanking areas (such as environmental protection,[11] economic, social and territorial cohesion[12] and Trans-European networks[13]) and in particular to the establishment of the Schengen Area (today the so called Area of Freedom, Security and Justice[14]) and to the Economic and Monetary Union with the single currency[15] and – later – the ESM as an solidaric auxiliary device for Euro-states.[16]

Common Global Assertation

The third structural landmark was realized in 1970. Although outside the supranational European Communities, it was realized by its members. This is the idea of institutionalized common global assertion, established as an intergovernmental mechanism for foreign policy coordination under the heading “European Political Co-operation”.[17] Later, in 1986, it was formally linked to the Communities by the Single European Act. It became part of the Union of Maastricht as its third pillar in 1993 and is nowadays an intergovernmental part of the Union of Lisbon.[18]

Civil and Social Cohesion

The fourth structural achievement in European integration can be described as the citizen’s status connection to the Union – with the intention of promoting civil and social cohesion even beyond the autonomous individual transnational market access initiatives and ramifications.[19] It took place in several phases. In 1979, for the first time, the members of the European Parliament were directly elected.[20] Since 1985 the border controls of persons between Member States were gradually removed[21] and in 1992/1993 the status of the citizenship of the Union was created.[22] It comprises the rights to move and reside freely, work and provide services within the territory of the Member States, to receive certain social benefits (howsoever conditioned), to vote and stand as a candidate in municipal elections and in elections to the European Parliament in the Member State in which the citizen resides – regardless of his nationality – and to enjoy diplomatic and consular protection in the territory of a third country in which “his” State is not represented, by any other Member State.

Value Cohesion

Eventually, the fifth structural landmark to be worth highlighting seems to be the gradually evolving awareness and normative fixation of the Union’s values with the perspective of value cohesion. Although their gist was present from the very beginning of the diverse projects for European integration after World War II[23] and then, in particular, in the Communities, values became programmatically part in the preamble of the Single European Act (1987) and in particular in the preamble of the Maastricht Treaty (1992) after the collapse of the Soviet Union as “the principles of liberty, democracy and respect for fundamental freedoms and of the rule of law”. They were elevated into the rank of “values” on which the Union is founded and which are common to the Member States by the Constitutional Treaty as drafted by the European Convention[24] which sharpened the self-image of the Union in 2003; they were legally put into force as Article 2 TEU by the Lisbon Treaty in 2009 and at the same time were declared as one of the three main objectives to be promoted by the Union (Art. 3 TEU). Also, the Charter of Fundamental Rights entered into force as primary Union law at that date.

The Status of European Integration

The question of the status of European integration addresses the issue of current challenges to the Union’s integration concept. One can distinguish a fundamental challenge (1.) and multiple single cohesion challenges (II).

The Fundamental Challenge

The fundamental challenge to the supranational concept of integration is posed by tendencies of relapse into untamed national sovereignty thinking which directly negates the legally based political cohesion concept. The surge of the ideas of national self-reliance and national self-isolation is well-known. The underlying music of Britain’s withdrawal from the European Union and, by that, the jurisdiction of the Court of Justice of the European Union marks the peak of a national rejection of the described concept of a lasting cutback of national sovereignty in Europe.

It should be remembered that the concept of cutting back national sovereignty was born from the bleak experiences of centuries of wars and mutual destructions of the many sovereign states and territories within Europe’s small geography, born from the insight of the loss of power of all European states on the international scene and born from the threat to their self-determination by foreign powers. Countering that miserable situation Jean Monnet’s concept was not only aimed at treating casual symptoms, but also at Europe’s structural healing.[25] It does not imply the abandonment of national statehood in Europe, but the ingenious, ostensibly paradoxical idea of cutting back national sovereignties in order to uphold national sovereignties by means of common sovereignty.

Is this concept outdated, as some like to claim? The answer is a clear “no”. Any reasonable analysis of the powerstriving nature and aggressive potential of humans as well as the geopolitical context at present will lead to the conclusion that the concept of lawbased institutionalized political cohesion is without a meaningful alternative for realizing the Union’s tripartite lead objective enshrined in Article 3 TEU. These objectives include promoting peace, its values and the well-being of its peoples.[26] The permanent firm block reaction of the 27 Union states to Britain’s insular withdrawal[27] is the best proof for this assumption.

Multiple Single Cohesion Challenges

Beyond this currently banned fundamental challenge multiple single cohesion challenges mark the status of European integration: challenges for the economic, civil and value cohesion and the common global assertion.

Current Challenges to Economic Cohesion

A current challenge to the idea of a common area of welfare exists in the possible amplification of economic asymmetric developments of the Member States caused by the present COVID-19 pandemic. But already before this plague the dangers of different competitiveness and budgetary policies in the Member States were known. Coping with them, a system of different instruments is used – with different success rates – such as the coordination of economic policies (Art. 120 TFEU), the promotion of the regional competitiveness by means of the cohesion policy (Art. 174 TFEU) and the Structural Funds (Art. 175 TFEU) as well as the promotion of sound public finances (Art. 119 par. 3, 123, 125, 126 TFEU). However perhaps potentially this is weakened by the Public Sector Purchase Programme (“PSPP”) of the ECB[28] and potentially also by its current Pandemic Emergency Purchase Programme (“PEPP”). However, the economic fallout of the pandemic can potentially reinforce disparities between the national economies with unclear ramifications into national political assessments of European integration.

Current Challenge to Civil Cohesion

The process of civil cohesion is also under pressure from the pandemic. As a consequence of the various travel restrictions imposed by Member States with a view of preventing infections[29] the transnational movement of persons and encounters in person within the Union have drastically dwindled. Only if the pandemic is a temporary condition will this transnational distancing end.

Current Challenges to Value Cohesion

Independent from the pandemic-caused problems the concept of value cohesion is challenged by the continuous political attacks on the role and independence of the courts in some transformation Member States (among them the biggest one).[30] This threat must not be underestimated, since the authority of law (and, by that, the community of law – Walter Hallstein[31] – and the rule of law[32]) is one of the fundamental pillars on which the Union and many elements of its dimensions of cohesion are founded. It implies, as it is explicitly and rightly stated in Art. 2 TEU, that the rule of law is common to all Member States.

Current Challenges to Common Global Assertion

A fourth challenge is directed towards the concept of common global assertion. This is not a new problem, but has gained a new quality in recent years. It is not so much driven by the international self-positioning of single Member States in specific issues (such as, e.g., in 2003 the UK’s support of the US-invasion of Iraq). Nowadays the Union is confronted with targeted attempts from outside actors at dividing the Member States: strategically by China’s “One Road, One Belt” policy, erratically (until now) by the US-Trump administration and occasionally by Russia. While the misled approach of the US might be over with the Trump-presidency and while Russia’s opportunities for making troubles may be limited, China’s challenge is persistent. Its strategy has already brought East Central European members as well as Italy and Greece into respective agreements and triggered the warning of France’s President to be less naïve and more united. It has even led to his request to China to respect the integrity of the Union.[33] This observation directly leads to the third and last question.

The Options of European Integration

Pondering options in European integration implies the task of assessing the persuasiveness of the basic concept of European integration for the medium-term future and, if affirmed, identifying tasks – imminent and permanent – for realizing it. The persuasiveness has been addressed already. In short: there seems to be no meaningful alternative to the basic concept. However, on this basis options and tasks for its development have to be identified. I submit three areas: internal cohesion (1.), external self-assertion (2.), and planetary responsibility (3.).

Internal Cohesion

Internal Cohesion of 27 different states, of even more cultures and of nearly half a billion individuals is a gigantic permanent task with constantly new emerging features. It might be bundled in the overarching task of avoiding at least excessive asymmetric developments while promoting new elements of cohesion: in particular in the economy and in values.

Avoiding Excessive Asymmetric Developments in the Economy

In regard to the economy the current pandemic challenge contains the chance to strengthen economic cohesion by better understanding that the welfare of one member in a common market mutually depends on the welfare of the other members. There is truth, e.g., in the consideration, that if the Italian economy fails, German exports to Italy will dwindle and less jobs in Germany will be open for workers from other member states. Hence, in this pandemic crash, economic cohesion can be promoted by the option to aid the hardest hit viable economic sectors in the Union by means of Union funds – which in turn requires the increase of the budget of the Union, be it by national contributions according to the respective national capacity, or be it by a Union debt on the capital market. The latter way is nearly revolutionary, envisaged by the European Council’s decision of 21 July 2020 to establish the recovery and resilience programme “Next Generation EU”.[34] If realized, it will constitute a new historical landmark in the concept of European integration – in a catchphrase: a new dimension of financial solidarity cohesion in exceptional situations. This would prove the sociological insight that solid solidarity is not an altruistic phenomenon but motivated by own benefit interests.[35] Exactly for this reason financial solidarity should also be increased in the area of the specific “Dublin burdens” of some Member States arising from the asymmetric influx of asylum seekers, since the Dublin Regulation[36] enables and serves the absence of internal border controls for persons – which in turn is a cornerstone of the internal market that is beneficial for all member states.

Avoiding Excessive Asymmetric Developments in Values

Inner cohesion demands in terms of values the permanent avoidance of excessive asymmetric developments in realizing democracy. This relates not only to the Member States, but also to the Union itself. In this respect European integration policy implies the task of considering prudent options for adjusting the democratic element to reasonable demands of enhancing the legitimacy of actions along the lines of its principle of representative democracy (Art. 10 TEU). This can relate to the composition of the European Parliament or the choice of the proper option to elect the Commission’s President. At the same time, it has to be kept in mind that forms of democratic legitimation in the Union as a transnational polity differ from those in a nation state and require a balance towards and integration into the chains of legitimacy of the Member States.

A particular feature of the inner value cohesion is linked to the requirement of respect for the rule of law including the independence and impartiality of courts. In countering such challenges in Member States the envisaged option of conditionality for receiving funds from the Union can promote its respect. The same device might bolster the respect for human rights of asylum seekers in all Member States.

Common Self-Assertion in Foreign Relations

Common External Self-Assertion of the Union States is, as already seen, a necessity in the world as it is – a world of competition of self-assertions and rival power actors.

Competitiveness in International Trade

Common self-assertation on the international scene demands, first of all, in economic terms in view of global trade that the Union promotes the economic competitiveness of its enterprises. This currently implies, in particular, using the option of a prudent industrial policy towards digitalisation (already put on the frontpage of the Commission’s agenda[37]) and also towards biotechnology. However within the framework of a market economy with free and undistorted competition (Art.119, 173 par.3 AEUV). It also comprises the option of firmly fostering sustainable business in the sense of the careful use of scarce resources.[38]

Promotion of Self-Sufficiency

As far as the objective of good survival is concerned the options of self-sufficiency (or in exceptional situations even autarchy) of the Union have to be examined: nutrition, pharmaceuticals, energy, information technology, prevention of pandemics – and last but not least defense.

Assumption of Planetary Responsibility

The perspectives and options of European integration also include the Union’s assumption of planetary responsibility in its own genuine interest for the prerequisites of human life and peace. In that respect it is reasonable that the European Commission has set as its top priority of options the so called “Green Deal” with the objective of turning Europe into the first climate neutral continent in 2050[39] and substantiated this plan with many concrete projects, including the content of future trade agreements.[40] Not less important for the planetary responsibility is the international promotion of education and of the Union’s values, including in view of the world as it is the promotion of respect for human dignity, e.g., in view of supply chains. All this fits neatly in the Union’s task, as outlined in Art. 21 TEU, to promote an international system based on good global governance.

Conclusion

These introductory observations lead to a rather simple conclusion: If all of these options will be wisely pursued, European integration will serve Europeans and the wider world.

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Clemens Gabriele/Reinfeldt Alexander/Wille Gerhard, Geschichte der europäischen Integration, Paderborn 2008.

Ehlermann Claus-Dieter, The Internal Market Following the Single European Act, CMLRev. 1985, 361 et seqq.

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Müller-Graff Peter-Christian. Die Europäische Privatrechtsgesellschaft in der Verfassung der Europäischen Union, in: Müller-Graff/Roth (eds.), Recht und Rechtswissenschaft. Signaturen und Herausforderungen zum Jahrtausendbeginn. Ringsvorlesung der Juristischen Fakultät der Ruprecht-Karls-Universität Heidelberg, Heidelberg 2000, 271 et seqq.

Müller-Graff Peter-Christian, Basic Freedoms – Extending Party Autonomy Across Borders, in: Grundmann/Kerber/Weatherill (eds.), Party Autonomy and the Role of Information in the Internal Market, Berlin 2001, 133 et seqq.

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Müller-Graff Peter-Christian, Unionsrechtliche Europäisierung ausserhalb der Europäischen Union, in: Hilz/Nötzold (eds.), Die Zukunft Europas in einer Welt im Umbruch. Festschrift für Beate Neuss, Wiesbaden 2018, 185 et seqq.

Müller-Graff Peter-Christian, The Rule of Law in European Integration: Roots, Functions, Challenges, Kiew 2018.

Müller-Graff Peter-Christian, Die Wirtschafts- und Währungsunion als Herausforderung der Autorität des Unionsrechts, in: Heusel Wolfgang/Rageade Jean-Philippe (eds.), The Authority of EU Law – Do We Still Believe in It?, Berlin 2019, 195 et seqq.

Müller-Graff Peter-Christian, Die Europäische Union als Rechtsgemeinschaft, in: Müller-Graff (ed.), Kernelemente der europäischen Integration, Baden-Baden 2020, 39 et seqq.

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Wollenschläger Ferdinand, Grundrechtsschutz und Unionsbürgerschaft, in: Hatje/Müller-Graff (eds.), Europäisches Organisations- und Verfassungsrecht, Enzyklopädie Europarecht Band 1, Baden-Baden 2014, 367 et seqq.

The text is based on the author's introductory lecture in the virtual 12th Network Europe Conference “Current Challenges of European Integration” on 9 November 2020. The style of speech is retained. ↵See today Art. 22 TFEU. A prominent example is the incumbent Danish Lord Mayor of the city of Rostock Claus Ruhe Madsen. ↵Müller-Graff (2018), 185 et seqq.; Bradford. ↵See as a writer's observation Enzensberger, 67; seen from a legal perspective Müller-Graff (2000), 280 et seqq. ↵Monnet, 373 et seqq. ↵Today Art. 26 para. 2 TFEU. ↵Müller-Graff (1987), 26 et seqq.; Müller-Graff (2000), 280 et seq.; Müller-Graff (2001), 133 et seq.; Müller-Graff (2013), 434 et seqq. ↵Today Art. 206 TFEU et seq. ↵Ehlermann, 361 et seqq.; Müller-Graff (1989), 122 et seq. ↵Maresceau; Müller-Graff (1997). ↵Today Art. 191 TFEU et seqq. ↵Today Art. 174 TFEU et seqq. ↵Today Art. 170 TFEU et seqq. ↵Art. 67 TFEU et seqq. ↵Art. 127 TFEU et seqq. ↵Häde, 891 et seqq. ↵Smith, 67 et seqq. ↵Art. 23 TEU et seqq. ↵See above FN. 7. ↵Müller-Graff (1979). ↵Taschner. ↵Schönberger; Wollenschläger, 434 et seqq. ↵See in particular: The Congress of Europe in The Hague (7 to 10 May 1948) which eventually led to the establishment of the Council of Europe; Clemens/Reinfeldt/Wille, 87 et seqq. ↵Müller-Graff (2004), 29 et seqq. ↵Monnet, 373. ↵Müller-Graff (2017), Art. 3 EUV. ↵Müller-Graff (2019), 195 et seq. ↵See German Federal Constitutional Court in its “PSPP”-judgment of 5 May 2020, note 137. ↵See, e.g., European Commission, Communication from the Commission of 8 April 2020 to the European Parliament, the European Council and the Council on the assessment of the application of the temporary restriction of non-essential travel to the EU, COM(2020) 148 final; European Parliament resolution of 19 June 2020 on the situation in the Schengen area following the Covid-19 outbreak (2020/2640(RSP)); Council Recommendation (EU) 2020/912 of 30 June 2020 on the temporary restriction of non-essential travel into the EU and the possible lifting of such restriction, OJ LI 2020 of 1 July 2020, 1 et seqq. ↵See as an example CJEU, Decision of 24 June 2019 in Case C-619/18, ECLI:EU:2019:531 - Commission/Poland. ↵Hallstein, 51; Müller-Graff (2020), 39 et seqq. ↵Müller-Graff (2018a), 30 et seqq. ↵See “Emmanuel Macron fordert Respekt vor ‘Einheit der EU’”, <https://www.zeit.de/politik/ausland/2019-03/xi-jinping-frankreich-emmanuel-macron-angela-merkel-eu-china>. ↵European Council, EUCO 10/20 CO EUR 8 CONCL 4, I, 2020. ↵Albrecht “Dimensionen der Solidarität”, <https://www.bapp-bonn.de>. ↵Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 2013 of 29 June 2013, 31 et seqq. ↵Von der Leyen, 15. ↵Von der Leyen, 5 et seqq. ↵Von der Leyen, 5. ↵Von der Leyen, 7. ↵

Enhanced Cooperation: Implementations and Effects on the European Integration Process

André S. Berne

André S. Berne

Table of Contents

IntroductionPrinciples of Enhanced CooperationConditions and Requirements of Enhanced CooperationOverviewFormal Requirements: Nine EU Member States and a Council DecisionNon-Exclusive Competences of the European UnionCompliance with the Treaties and Union LawNo Undermining of CohesionPromotion of the Union’s Objectives and Strengthening of the Integration ProcessConsideration of Not Participating EU Member StatePossibility for Other EU Member States to ParticipateLast ResortRemaining Within the Scope of Enhanced CooperationThe implementation of Enhanced Cooperation So FarThe Rome-III Regulation on Divorce and Legal Separation (Reg. 1259/2010)BackgroundThe ImplementationEffects on the Integration ProcessThe Creation of a European Unitary Patent ProtectionBackgroundBeginning of the Implementation and Clarifications from LuxemburgThe Ruling’s Consequences for future Enhanced CooperationsThe (still) ongoing Implementation and Interjections from KarlsruheEffects on the Integration ProcessProperty Regimes of International Couples (Council Decision 2016/954)BackgroundImplementationEffects on the Integration ProcessThe Establishment of the European Public Prosecutor’s Office (Reg. 2017/1939)BackgroundImplementationEffects on the Integration ProcessThe Introduction of a Financial Transaction Tax (Council Decision 2013/52)BackgroundImplementation and the UK’s Action for AnnulmentLast Developments and Effects on the Integration ProcessConclusionBibliography

Introduction

The EU is conceived as a common judicial area in which both the EU and the EU Member States are required to apply EU law fully and uniformly in all EU Member States.[1] Thus, a balance must always be struck between the common interests of all EU Member States and the individual interests of a few EU Member States. With the number of EU Member States increasing over time, it has become more and more difficult to achieve this balance. This has led to a call for greater flexibility in the legislative process, which shall harmonise the heterogeneity of the law in EU Member States.[2] However, this flexibility must take place in narrow limits as the common values and institutions of the EU must not be questioned. At the same time, this flexibility must not be overstretched in order to preserve the identity of the EU.[3]

Using these guidelines and as an outlet for balancing internal tensions in the legislative process, the Maastricht Treaty introduced the concept of “Enhanced Cooperation” with its entry into force in 1993.

Thus, the purpose of Enhanced Cooperation is to put a group of EU Member States in a position to advance the integration process by making use of the Union‘s institutional framework and legislative procedures where such progress cannot be achieved with the involvement of all EU Member States.[4] This aims to enable individual EU Member States to take faster steps towards European integration and to accomplish the aim of an “ever closer Union”[5]. At the same time, the few EU Member States that forge ahead are to exert a so-called “pull-effect” on the other EU Member States left behind that have not yet joined such an Enhanced Cooperation, by motivating them to join these EU Member States in the Enhanced Cooperation. Ultimately, this aims to spur on European integration as a whole.

This contribution pursues the question of how the instrument of Enhanced Cooperation has been used since its introduction and how these cases of Enhanced Cooperation have affected the European integration process so far. First of all, the principles of Enhanced Cooperation shall be presented (Chap. II). Secondly, the conditions and requirements of Enhanced Cooperation will be fleshed out and listed individually (Chap. III). In a further step, the implementations of Enhanced Cooperation will be discussed and their preliminary effects on European integration examined (Chap. IV).[6] Finally, the results will be summarised in a conclusion (Chap. V).

Principles of Enhanced Cooperation

Since the Treaty of Lisbon entered into force, the provisions regarding Enhanced Cooperation are laid down in Art. 20 TEU and Art. 326-334 TFEU. According to these provisions, Enhanced Cooperation is a special type of cooperation between a few EU Member States: It applies only in cases where the EU Member States are not able to reach a unanimous consensus in the Council within the usual framework of the legislative procedure laid down in the Treaties (which then would apply to all EU Member States). In such a case, at least nine EU Member States can decide among themselves to implement certain measures for the realisation of the Union’s goals. In doing so, they may draw on the EU’s institutions and procedures. This distinguishes Enhanced Cooperation from cooperation purely based on international law between states that are also members of the EU. However, since Art. 20 TEU states that EU Member States “may” establish Enhanced Cooperation, the Treaties clearly declare Enhanced Cooperation as an option but not an obligation in case the usual legislative process fails. Therefore, EU Member States remain entitled to advance the goals of European integration in accordance with general international law through forms of intergovernmental cooperation or differentiated integration outside the EU’s institutional or legal framework[7] as long as this does not violate any obligations arising from the Treaties.[8]

Enhanced Cooperation is to be distinguished from exemptions granted to individual EU Member States regarding the application of individual acts of EU law (so-called opting-out clauses). These are provisions anchored in primary legislation, which explicitly state that certain EU Member States are not subject to the EU’s acquis in a certain policy area.[9]

In principle, the provisions on Enhanced Cooperation are applicable to all areas covered by the Treaties. Since the Lisbon Treaty entered into force, Enhanced Cooperation is also possible in the Common Foreign and Security Policy. However, special procedural provisions must be observed if Enhanced Cooperation is sought in this area.[10] As no Enhanced Cooperation has been carried out in this area so far, this type of Enhanced Cooperation will not be discussed further in this contribution, as it lacks practical relevance.

A special kind of Enhanced Cooperation is the so-called “Permanent Structured Cooperation” (abbr. “PESCO”)[11] in the EU’s Common Security and De­fence Policy.[12] However, this type of Enhanced Cooperation is not based on Art. 20 TEU and Art. 324-334 TFEU but finds its legal basis instead in Art. 42 (6) and Art. 46 TEU as well as in Protocol No 10. Thus, it represents a separate type of Enhanced Cooperation and, correspondingly should also be dealt with separately.[13] Therefore, this contribution will not delve further into this topic.

Conditions and Requirements of Enhanced Cooperation

Overview

The principles and the main conditions and requirements of Enhanced Cooperation between EU Member States are laid down in Art. 20 TEU, which is the central Treaty provision on Enhanced Cooperation. According to Art. 20 (1) TUE, EU Member States that wish to establish Enhanced Cooperation between themselves may make use of the EU’s institutions, subject to the limits and in accordance with the detailed arrangements laid down in Art. 20 TEU and in Art. 326-334 TFEU, which contain additional substantive and procedural rules. Thus, Art. 20 TEU contains the common framework elements for Enhanced Cooperation: This provision is limited to the fundamental permissibility, meaning and purpose, general conditions and some implementation principles of Enhanced Cooperation. The detailed conditions and requirements of this framework are set out in Art. 326-334 TFEU. If any of these legal requirements are not met, the authorisation to engage an Enhanced Cooperation is void and may be subject to an action of annulment before the CJEU.[14]

Formal Requirements: Nine EU Member States and a Council Decision

The establishment of Enhanced Cooperation requires a request from at least nine EU Member States.[15] This quorum is intended to prevent the EU from fragmenting into many small Enhanced Cooperation projects.[16] The Constitutional Treaty, which failed in 2005, also included such a quorum, but set it at one third of the EU Member States.[17] The Lisbon Treaty, however, then set this at the fixed number of nine. Thus, if the EU were to admit further states as members in the future, this threshold would in theory become lower and lower. However, the fact that currently the number of nine EU Member States represents exactly one third of the EU Member States is due to Brexit and thus is rather a coincidental circumstance. In principle, the mentioned request must be addressed to the EU Commission and specify the scope and objectives of the Enhanced Cooperation proposed.[18] An exception exists if the Enhanced Cooperation is to take place within the framework of the Common Foreign and Security Policy: In such a case special procedural provisions apply and the request must be addressed directly to the Council.[19]

In case the EU Commission approves the Enhanced Cooperation project, it may submit a proposal to the Council to that effect.[20] The latter may, after the European Parliament has given its consent, authorise the Enhanced Cooperation[21] (hereinafter the “Council Decision”) with qualified majority.[22] An unanimous decision is only required in case the Council amends the EU Commission’s proposal.[23] However, in case the EU Commission declines to submit such a proposal within the limits of its discretion, it must inform the EU Member States concerned of the reasons.[24] This means that the EU Commission also has a right of initiative pursuant to Art. 17 (2) TEU in the context of Enhanced Cooperation, which formally grants the EU Commission a de facto monopoly to decide on the form and content of an legislative act, if it decides to bring forward such an proposal at all. The CJEU has recently confirmed once again that this is at the discretion of the EU Commission.[25] Thereby, the EU Commission obtains a veto right, which enables it to prevent any Enhanced Cooperation (unless it would cover the Common Foreign and Security Policy[26]).[27]

Finally, it should be mentioned that the EU Commission cannot submit a request for Enhanced Cooperation on its own, but depends on at least nine member states doing so.[28] Thus, the minimum number of nine participating EU Member states and a Council Decision are the first two requirements for a valid Enhanced Cooperation.

Non-Exclusive Competences of the European Union

Thirdly, in order to be lawful, the Enhanced Cooperation must stay within the EU’s non-exclusive competences.[29] It follows that Enhanced Cooperation can only be considered in the area of shared, coordinated and supportive EU competences that are set out in Art. 4-6 TFEU. While the concept of the EU’s exclusive competences is laid down in Art. 2 (1) TFEU, the EU’s exclusive competences are listed in Art. 3 TFEU: i) the customs union, ii) the competition rules in the internal market, iii) the monetary policy for Euro zone countries, iv) the conservation of marine resources and v) the common commercial policy. An Enhanced Cooperation in these policy areas is therefore not possible.

Compliance with the Treaties and Union Law

Fourthly, the Enhanced Cooperation must comply i) with the EU primary law laid down in the Treaties and ii) with the secondary law adopted within the traditional legislative process.[30] Thus, by authorising Enhanced Cooperation, the Council cannot decide to amend secondary law it has previously adopted by simple or qualified majority or even unanimity (depending on the applicable legislative procedure). Because the Enhanced Cooperation must comply with the Treaties, it is clear that the principles of EU law, including the principles of conferral, of subsidiarity and of proportionality,[31] are fully applicable in the context of Enhanced Cooperation.

In combination with the circumstances that Enhanced Cooperation is only permitted in the area of shared, coordinated and supportive EU competences as mentioned above, it is made clear that Enhanced Cooperation must not lead to an extension of the EU’s activities into areas, which are not guaranteed to the Union by the Treaties:[32] Enhanced Cooperation exclusively serves to achieve the objectives that the EU already has but cannot create new ones. Therefore, the Union acquis always take precedence over an Enhanced Cooperation enacted by a group of EU Member States and the principles of lex specialis derogat legi generali and lex posterior derogat legi priori cannot be invoked.[33]

No Undermining of Cohesion

In direct systematic correlation with the previous requirement, Enhanced Cooperation shall fifthly “not undermine the internal market or the economic, social and territorial cohesion”.[34] The Treaties emphasise this provision by explicitly stating the logical conclusions of this prohibition by adding that the Enhanced Cooperation must not constitute i) a barrier to or ii) discrimination in trade between EU Member States or iii) distort competition between them.[35] Several opinions criticise that this addition would be superfluous.[36] However, these views overlook that this addition expresses the great concern of the EU Member States about a disintegrating effect of Enhanced Cooperation. This is underlined by the fact that the Lisbon Treaty introduced the protection of the territorial cohesion, while Enhanced Cooperation and the protection of the economic and social cohesion were already introduced with the Treaty of Maastricht. Ultimately, it is a matter of protecting the rules of free trade and thus in particular the fundamental freedoms of the internal market.[37]

Indeed, the aim of the prohibition of undermining of cohesion is to protect the central objectives of the Union against a creeping erosion by Enhanced Cooperation(s).[38] Art. 334 TFEU must be seen in this context: It states that “the Council and the EU Commission shall ensure the consistency of activities undertaken in the context of Enhanced Cooperation and the consistency of such activities with the policies of the Union, and shall cooperate to that end”[39]