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The future enlargement of the European Union to Central and Eastern Europe means that it will be essential to review how the European institutions work. The current structure is inherited from an organisation designed for six Member States and, although it has undergone adjustments to take the accession of new Member States into account, it still works on the same institutional principles.
The increase in the number of Member States will increase diversity within the European Union in terms of each Member State's objectives, sensibilities and priorities. While this diversity is what constitutes the wealth of the European Union, it may also be an obstacle, if the pace of European integration is determined by the slowest.
The Treaty of Amsterdam represents an unprecedented reform, since it introduces the concept of variable-speed integration into the EU Treaty. In concrete terms, three articles have been added to the EU Treaty (Articles 43 to 45). They allow Member States that intend to establish closer cooperation between one another to make use of the institutions, procedures, and mechanisms laid down by the EU Treaty and the EC Treaty.
Closer cooperation enables the most ambitious Member States to deepen cooperation between themselves while leaving the door open to other Member States to join them at a later stage.
The Treaty of Amsterdam stipulates a number of general conditions that must be met before closer cooperation can be launched. These are necessary to ensure that the initiative does not jeopardise the functioning of the internal market. In other words, the acquis communautaire must be preserved. Therefore, before any closer cooperation can be launched, it must show that it will:
- aim to further the objectives of the Union and protect and serve its interests;
- respect the principles of the Treaties and the single institutional framework of the Union;
- be used only as a last resort;
- concern at least a majority of Member States;
- not affect the acquis communautaire or the measures adopted under the other provisions of the Treaties;
- not affect the competences, rights, obligations and interests of those Member States which do not participate in it;
- be open to all Member States and allow them to become parties to the cooperation at any time, provided that they comply with the basic decision and with the decisions taken within that framework.
Closer cooperation is possible in the fields covered by the EC Treaty and in police and judicial cooperation in criminal matters. As far as the common foreign and security policy (CFSP) is concerned, the authors of the Treaty of Amsterdam decided that constructive abstention was already designed to meet flexibility requirements, and that recourse to closer cooperation was therefore unnecessary.
Depending on the pillar concerned, closer cooperation will have to meet certain specific conditions in addition to the general conditions set out in Article K.15:
- for the first pillar, the cooperation envisaged:
- must not concern areas which fall within the exclusive competence of the Community;
- must not affect Community policies, actions or programmes;
- must not concern the citizenship of the Union or discriminate between nationals of Member States;
- must remain within the limits of the powers conferred upon the Community by the Treaty;
- must not constitute a discrimination or a restriction of trade between Member States and will not distort the conditions of competition between them.
- for the third pillar, the cooperation envisaged:
- must respect the powers of the European Community and the objectives laid down by Title VI of the Treaty on European Union;
- must have the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice.
A new Article 11 has been inserted in the EC Treaty.
This new article provides that, within the framework of the European Community, the initiative for closer cooperation must come from the European Commission following a request to this end by the Member States concerned. The Commission is free to submit a proposal, but if it decides not to do so, it must inform the Member States concerned of the reasons.
When the Council receives a proposal for closer cooperation from the Commission, it must act by qualified majority after consulting the European Parliament.
For the field of police and judicial cooperation in criminal matters (third pillar), the procedure differs from that used within the framework of the European Community. The new Article 40 of the EU Treaty provides that the initiative for closer cooperation must come from the Member States concerned. Activation is therefore subject to a Council decision by qualified majority. The Commission is asked for its opinion and the Member States' request is transmitted to the European Parliament.
In both the first and third pillars, launching closer cooperation depends on a decision taken by a qualified majority of the Council. However, the Member States have a safeguard clause allowing any of them to prevent a vote being taken for important reasons of national policy.
The Council, acting by qualified majority, can then send the question to the European Council if the decision falls under the third pillar, or to the Council, in the shape of the heads of state or government, if the decision falls under the first pillar. In both cases, referral requires a unanimous decision.
In this case, the role of the Court of Justice is crucial because it will have to decide on the degree of importance of the reasons of national policy invoked by a Member State. The Court of Justice therefore acts as a guarantee that the safeguard clause is not abused.
For the implementation of closer cooperation, the new Article 44 of the EU Treaty provides that all members of the Council may take part in the deliberations, but that only those representing Member States participating in closer cooperation play a part in adopting decisions.
Any closer cooperation is subject to all the relevant provisions of whichever Treaty it falls under (EU Treaty or EC Treaty). Depending on the subject, decisions are taken under the procedure laid down for the field in question (unanimity, qualified majority vote, codecision or consultation procedures, etc.).
A qualified majority is defined as the same proportion of the weighted votes of the members of the Council concerned as laid down in Article 205(2) (ex Article 148(2)) of the EC Treaty.
It should also be noted that the other institutions involved in the decision-making process (notably the European Parliament and the Commission) do so in their entirety, making no distinction between Member States which are taking part in closer cooperation and those which are not.
SUBSEQUENT PARTICIPATION BY A MEMBER STATE
The basic principle underlying the system is that participation in closer cooperation is open to any Member State, including those that are not involved from the start.
In the Community field, a Member State wishing to join the others must inform the Council and the Commission of its intention. The Commission then delivers its opinion to the Council within three months. A month after giving its opinion, the Commission decides on the matter and on any specific arrangements it considers necessary.
For closer cooperation under the third pillar, the procedure is different from that under the first pillar, although the time limits specified are the same. In addition to its opinion, the Commission may give a recommendation on specific provisions it considers necessary for the Member State to take part in the cooperation in question. It is then for the Council to take the decision. The request is approved unless the Council decides, by qualified majority, to hold it in abeyance. In this case, the Council must give its reasons and set a deadline for the request to be re-examined.
Except for administrative costs, the expenditure arising from closer cooperation is borne by the participating Member States, unless the Council unanimously decides otherwise.