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“United in Diversity” – The Integration of Enhanced Cooperation into the European Constitutional Order

Published online by Cambridge University Press:  06 March 2019

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The “unity dogma” has long characterized the European law discourse. In many of its landmark decisions the European Court of Justice had recourse to the “unity argument,” such as in Costa vs. E.N.E.L., where it rightly states that “the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty.” Other expressions of the “unity dogma” include the legal principle of non-discrimination enshrined in the fundamental freedoms, which lie at the heart of the single market, or the political concept of acquis communautaire obliging new Member States to subscribe to all existing Community laws. Indeed, the establishment of a supranational legal order requires a continued focus on its uniform application in the Member States without which the effectiveness of European law is at stake. My intention is not to call into question the underlying rationale of this quest for unity. The aim of this contribution is rather to show that the asymmetric non-participation of individual Member States in selected areas of Union activity can be embedded into the existing European legal order and does not contradict its constitutional aspirations, thereby giving substance to the Union's motto “United in Diversity.”

Type
Part IV: Territorial and Temporal Aspects of Unity
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 1251.Google Scholar

2 Treaty Establishing a Constitution for Europe, Dec. 16, 2004, 2004 O.J. (C310) 53 [hereinafter CT].Google Scholar

3 E.g. Treaty on European Union, 1992 O.J. (C191) 1 [hereinafter TEU], art. 95(4)-(10), CT art. III-172(4)-(10), and CT art. 176, Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C 340) 3 [hererinafter EC Treaty], art. III-234(6).Google Scholar

4 One “minor” example: the Protocol on the Acquisition of Property in Denmark of 1992 which continues to be attached to the Constitution.Google Scholar

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11 This article follows the spelling of the Treaty of Nice and the constitutional Treaty which speaks of “cooperation” and does not use the British-English “co-operation”.Google Scholar

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30 The Amsterdam Treaty had originally required the participation of the majority of Member States, while the Treaty of Nice lowered the criterion to eight Member States in TEU art. 43(g), (8 are the majority of 15, but about one third of 25). The Constitution now returns to a relative threshold of one third in CT art. I-44(2).Google Scholar

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35 Elsewhere, I have given a more thorough analysis of this argument, including references to and discussion of possible alternative views. See Thym, supra note 10, at 68-9, 250-4.Google Scholar

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41 Three commentators work in different languages. See Helmut Kortenberg (pseudonym), Closer Cooperation in the Treaty of Amsterdam, 35 Common Market Law Review 833, 849 (1998); Rainer Hofmann, Wie viel Flexibilität für welches Europa, 34 Europarecht 713, 724 (1999); and Constantinesco, supra note 13, at 761.Google Scholar

42 I have developed this argument in more detail in Thym, supra note 10, at 69-72. There, I also show that the additional prohibition of distortions of competition in CT art. III-416, TEU art. 43(f) should be interpreted in line with EC competition law, i.e. the Commission is obliged to asses and explain possible distortions in its decision (not) to propose the authorization of enhanced cooperation under CT art. III-419(1), (EC Treaty art. 11(1)), while judicial review of these complex economic evaluations is largely confined to an examination of the underlying facts and the legal consequences the Commission deduces therefrom.Google Scholar

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50 Opinion Case C-1/91, European Economic Area, 1991 E.C.R. I-6079, para 21.Google Scholar

51 Walter Hallstein, Der unvollendete Bundesstaat 33 (1969) (author's translation).Google Scholar

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54 Curtin, , supra note 15, at 51-2 only debates whether the present EC TreatyArt. 10 may be invoked to oblige the UK to rejoin the advance group at some point at the future. Unfortunately, Anne Peters, Elemente einer Theorie der Verfassung Europas 449 (2001) extends this criticism to later forms of asymmetry such as enhanced cooperation without analyzing their difference in form and substance.Google Scholar

55 Hans Kelsen, Allgemeine Staatslehre 165 (1925) (author's translation).Google Scholar

56 Georg Jellinek, Staatslehre 642 (2nd ed. 1905) (author's translation).Google Scholar

57 See the overview Flexibility in Constitutions, (Annette Schrauwen ed., 2nd ed. 2002).Google Scholar

58 The maintenance of these characteristic principles of EU law stems from the deliberations above and is dealt with in Thym, supra note 10, at 233-268.Google Scholar

59 See Witte, Bruno de, “Old Flexibility”, in Constitutional Change in the EU, supra note 6, at 31-58; Thym, supra note 10, at 181-202, 297-320, (on the cooperation of some Member States the important contribution).Google Scholar

60 Which in casu are the ordinary legislative procedure (hitherto known as co-decision) for consumer protection (Treaty Establishing a Constitution for Europe art. I-34(1), III-235) a unanimous Council decision after consultation of the Parliament for tax harmonization (Treaty Establishing a Constitution for Europe art. III-171).Google Scholar

61 Treaty Establishing a Constitution for Europe art. III-416; the specific (and declaratory) obligation to respect “the relevant institutional provisions” of the Treaties in TEU art. 44(1) was not integrated in the constitutional Treaty.Google Scholar

62 As remarked incorrectly by Werner Schröder, Verfassungsrechtliche Beziehungen zwischen Europäischer Union und Europäischen Gemeinschaften, in von Bogdandy, supra note 26, at 413-4. Unfortunately, the wording of Treaty Establishing a Constitution for Europe Art. I-44(1), TEU art. 43 may be misunderstood in this respect when it refers to enhanced cooperation allowing some Member States to “make use” of the Union's institutions and procedures.Google Scholar

63 Such as the classic British debate on the “West Lothian Question” concerning the voting rights of Scottish MPs in matters devolved to the Scottish Parliament (but decided in Westminster for England).Google Scholar

64 CT Protocol No. 12 does not change its legal nature as an informal “talking shop” with decisions being taken in the regular Ecofin Council; Thym, supra note 10, at 143-9.Google Scholar

65 CT art. I-44(3); TEU art. 44(1).Google Scholar

66 CT art. III-422(2) was first proposed in the text submitted to the Convention for its last working session – one day before the text was solemnly adopted by consensus; The European Convention, CONV 847/03, (July 9, 2003). Its reference to Treaty Establishing a Constitution for Europe art. I-44(3) clearly indicates that the outs may not block the move towards qualified majority voting.Google Scholar