Closer cooperation

The last main change introduced by the ToA was the introduction of provisions allowing for 'closer cooperation' by Member States. This is often referred to as an ex­ample of the principle of 'flexibility', described as the leitmotif of the ToA. It allows differing conceptions of the European ideal and different degrees of commitment to coexist within the Union framework. As such, it is a variant of the concepts vari­ously described as 'multi-speed Europe', 'Europe of variable geometry' and 'Europe of concentric circles' prior to the 1996 IGC. The ToA allows Member States that wish to cooperate more closely in specific areas within the general scope of the treaties, but which are not yet subject to Community legislation, to do so. Although the Union had, in effect, accepted this approach in specific policy areas, for example, the UK and Danish opt-out of monetary union under the TEU and the UK opt-out of the Protocol on Social Policy in the TEU, this is the first time that a general provi­sion (Article 11 EC and, in respect of JHA, Article 40, subject in both cases to Articles 43-4 TEU) allowing for such separate development within the Union framework, has been incorporated.

Cooperation is limited to the matters within the scope of the treaties and cannot in any way conflict with Community law (see Article 11 EC as inserted by ToA). Article 11 limits the circumstances in which closer cooperation may operate; in particular, a majority of the Member States must be involved, the action must be in the furtherance of the Union's objectives and closer cooperation must not affect the rights and obligations of Member States not involved. The provisions in relation to closer cooperation within the JHA provisions of the TEU are couched in similar terms (Article 43 TEU). Note that these provisions have been amended by Nice and would have been amended by the Constitution and will be affected by Lisbon if it comes into force.

This provision for closer cooperation may bring some advantages, notably by pre­venting the frustration of the integrationist aims of the majority of Member States by the minority, thus relieving the tensions between the Member States which disa­gree about the depth of European integration and allowing compromise within the Union. It also carries disadvantages. In particular, the boundary between matters falling only within the sphere of EC law proper and areas permitting closer co­operation may be unclear. Furthermore, is it possible in the context of the internal market for some Member States to become involved in closer cooperation without affecting the position of other Member States? In which case, should the other Member States be involved in the discussions leading to the adoption of closer co­operation measures even though they will not be bound by them? This problem has already surfaced in the context of the UK's role in the introduction of monetary union. On the other hand, if the ECJ interprets the provisions set out in new Article 11 EC strictly so as to preserve and even stretch the boundaries of Community law, then the opportunities for such cooperation will be severely curtailed. In any event, the very fact that the Union contemplates an approach where some Member States go ahead regardless of the wishes of others will undermine the ideas of community and solidarity which are fundamental to the creation of both the internal market and an ever closer union. Unless benefits and burdens are equally shared, there is a danger that the achievements of the past 49 years could be undone. It seems, how­ever, that 'flexibility' is now an unavoidable part of ensuring agreement within the Union and allowing it to develop.