Jean Monnet Center at NYU School of Law

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3 Negotiating in the 1996-97 IGC enhanced cooperations rules

During the last IGC France and Germany tried to present common positions in most of the subjects on the table, like in other Treaty reform negotiations. They failed to do so in important matters -institutional reform was the most blatant of their disagreements. But in the subject of enhanced cooperations, these two countries worked together from day one until the Amsterdam European Council.

The first time France and Germany made such a proposal was before the start of the IGC, in a Joint Letter to the Madrid European Council (december 1995). In the winter of 1996, the idea of enhanced cooperations was repeatedly voiced by French and German politicians.[9] The main argument of Germany and France to justify enhanced cooperations was, of course, coping with monetary union and enlargement. But additionally, enhanced cooperations were presented as inevitable: "if we dont do it inside the EU, we´ll do it outside". Member states needed to cooperate among themselves: if this cooperation took place outside the EU they would become even harder to control by the rest.

This message basically disregarded important Community constitutional rules -competences, supremacy, preemption, etc... But the bluff was not called and slowly it was accepted that enhanced cooperations was something the Union had to have. An important factor in this acceptance was the indetermination of the proposal. France and Germany postponed as much as they could the discussion about the areas where cooperation could take place, on launching procedures and requirements, on the internal functioning of the cooperation itself, etc...

Postponement of flexibility negotiations was easy, since the IGC advanced very little in its first nine months of existence, under the Italian and the Irish Presidency: the fifteen member states were hardly negotiating at all.

One year later, in the spring of 1997, the Dutch Presidency included enhanced cooperations in the first draft of the treaty, with the hope of selling France and Germany the idea of a new Treaty concluded in Amsterdam. These countries had voiced their preference for intergovernmental decision-making inside the cooperations. But the Benelux countries insisted that treaty rules had to apply inside cooperations, so that the Commission, the Parliament and the Court could play a similar role than in normal Community situations (only similar, given that enhanced cooperation norms would only apply in participating member states). The Benelux countries defended such an ad hoc supranational structure inside cooperations because of the benefits smaller countries have traditionally obtained when the Commission or the Court has been involved, by comparison with an international situation.

The European Commission was initially against enhanced cooperations, specially in majority voting areas. Enhanced cooperations were not really needed when you could adopt EU legislation by majority voting. In these situations, the resort to an enhanced cooperations would be a break with a great political achievement of the Union, majority voting, based on a principle of democracy and solidarity. [10] The Commission was also afraid of not having an important role to play inside cooperations and in their launching. In addition, it could foresee many technical problems in the management of different communities, which would increase the complexity and the lack of transparency of the Union.

Most non-founding member states actually did not like the idea of enhanced cooperations, at least not in the Community pillar. The UK was clearly against this type of flexibility, very different in its political effects from opt-outs and opt-ins. The integrity of the internal market was at stake. Moreover, the UK was seriously concerned about the idea of signing a blank check and not being able to control the results of the ensuing enhanced cooperation. For the UK, an authorization to act in the name of the EU without the consent of other Member states was an invitation to those states to act against their wishes. The UK repeatedly demanded an unanimous decision to launch an enhanced cooperation. The newly elected labour government finally accepted a compromise. Only institutional practice will tell if the veto right obtained over the launching of the cooperation is a real compensation. [11]

Spain, Greece and Portugal were very reluctant to accept enhanced cooperations in the Community pillar. They knew that participation in some of these cooperations could increase their production costs and decrease their competitive edge in the internal market, because of the new norms they would have to apply, i.e. norms with higher standards of consumer and environmental protection. They also disliked the idea of remaining outside cooperations and not being able to influence rules that, sooner or later, they might have to apply. These countries were also concerned with the future of regional policies if enhanced cooperations ever took place in this area. Spain´s strategy was to try to limit as much as possible the Community's areas where enhanced cooperations could be launched. [12]

In spite of the opposition of many member states, Germany, France and the Benelux were able to turn the issue of enhanced cooperations from a question of principle to a practical problem, a technical discussion on how to do it. Enhanced cooperations became more important to them because of the lack of progress in many areas of the IGC. A modest outcome of the Conference was less worrying if enhanced cooperations were codified: they would facilitate agreement in the future among member states with similar social and economic interests. [13]

The Amsterdam Council devoted almost no time to the negotiation of enhanced cooperations rules. It was the last issue on the summit agenda. The deadlock over institutional reform and the impossible task of having the heads of Government and State review all the contents of the new Treaty in less than two days, explain the fact that enhanced cooperations were born not with a bang, but with a whisper.

[9] President Chirac declared in March 1996: "France proposes that the states that have the will and the capacity be allowed to develop closer cooperation among themselves (...) Once approved by the Council, their projects would be considered as those of the Union, and backed as such. Flexibility and consistency would be then conciliated" (Liberation, March 25, 1996). A few days before, Prime Minister Alian Juppé said at the National Assembly: "Let us have the courage to state that tomorrow´s Union will be composed of two distinct levels: a common law or de jure Union, with its present fifteen states plus those who will join us; in the core of this Union, of this first circle, there will be a second one, more limited but adaptable, with a small number of states working with France and Germany, ready to go further and faster than others, in areas such as money or defence".

(National Assembly, March 13, 1996)

[10] See J. Weiler, "Editorial: Amsterdam, Amsterdam", European Law Journal, Vol. 3, No.4, December 1997, p. 311

[11] The launching of an enhanced cooperation requires only a qualified majority, but any individual member state can veto the decision This veto has to be explained to the Council. If the explanation is convincing, the Council by qualified majority voting asks the European Council to take the launching decision by unanimity.

[12] See J. Elorza, "Complexity and Compromise Surround IGC Debate", Challenge 96, Belmont European Policy Centre, Issue 11, november-december 1996, p. 10-12

[13] See C.D. Elhermann, op. cit., 63

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