DIFFERENTIATION

At present, enhanced cooperation by a group of integrationist minded states can only proceed as a matter of ‘last resort’ [58].  Although all member states should be encouraged to participate in all EU legislation, there are times when a permissive consensus exists behind a proposal by a smaller group (of at least nine states) to pioneer deeper sectoral or regional integration while keeping within the Union framework. Such enhanced cooperation offers a good way forward in important areas of particular controversy, such as tax or immigration, where the vanguard can develop and test specific common policies, acting as a path-finder for all [59].  The existence of the last resort clause in the current treaty rules has effectively stymied the development of an avant-garde group among federally minded states. We would therefore lift the stipulation of ‘last resort’ in the interests of well-managed, multi-speed integration. Used to its full potential, the concept of enhanced cooperation will add a fresh dynamic to European integration and provide impetus. 

The other criteria that must currently be met for enhanced cooperation to proceed would remain untouched, including the rule that the door should always remain open to latecomers, subject to the approval of the Commission and the consent of the Council and Parliament. Our argument in favour of a strong Commission is given added weight in view of the need to manage a more differentiated Union. 

As integration reaches new policy areas and the federal character of the EU becomes more strongly defined in the new constitutional treaty, it will become necessary to introduce a new category of associate membership of the Union designed for and open to any current member state choosing ultimately not to accept the terms of the new constitution [60].  Associate membership could also prove to be the better long-term option for those neighbouring states   Norway, Iceland, Switzerland   which are at present inclined to accept the values of the Union while rejecting the rules and obligations of full membership [61].

The United Kingdom has chosen to leave the EU [62].  Having left, it intends to negotiate an association agreement with the EU [63].  It is not to be excluded, of course, that once the British have experienced life as a third country, they will one day seek readmission as a full member state [64].  Alternatively, the UK may at some stage want to recast its EU relationship by upgrading its future association agreement into the status of a formal associate member state. 

The fraught security situation in Europe should encourage the Union to think creatively of how to establish joint institutions with any friendly neighbour which is committed to developing a close and dynamic partnership that respects EU norms and allows participation in EU programmes [65].  In this context, Brexit is a test case for the reform of the Union’s neighbourhood policy as a whole. The next Convention must aim to design a framework for deep and smooth cooperation turning nervous neighbours into reliable partners.

[58] Article 20(2) TEU. 
[59] This reform to the enhanced cooperation procedures would allow for the suppression of the anomalous accelerated enhanced cooperation, installed by Lisbon, in Articles 82(3), 83(3), 86(1) and 87(3) TFEU.
[60] Putatively, Article 49 bis TEU. 
[61] In other words, Article 2 but not Article 3 TEU.
[62] Article 50(1-4) TEU. 
[63] Article 217 TFEU.
[64] Article 50(5) TEU.
[65] Article 8 TEU.

 

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