Kellerhals / Baumgartner Current Challenges of European Integration

12th Network Europe Conference, 9 – 10 November 2020
1. Auflage 2021
ISBN: 978-3-03805-441-2
Verlag: buch & netz
Format: EPUB
Kopierschutz: Kein

E-Book, Englisch, Band 211, 208 Seiten, Format (B × H): 1550 mm x 2250 mm, Gewicht: 345 g

Reihe: EIZ Publishing

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. In recent times, however, the EU is characterised by multiple crises, 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. 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. Against this background, the twelfth Network Europe conference included talks on the numerous challenges and future integration scenarios in Europe. This publication comprises all conference contributions.

Autoren/Hrsg.

Kellerhals, Andreas

Baumgartner, Tobias

Leseproben

Table of Contents

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...