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The Franco-German determination to introduce enhanced cooperations rules in the new Treaty responded to a desire to increase the scope of the international arena of the European Union. Was it just a nostalgic attempt or has it created a serious possibility of turning back the clock? (but was the EC ever controlled by international actors?)
A new and larger EU international arena, lead by France and Germany, could be in the making through enhanced cooperations. France no longer has the capacity to be a leading political actor of the Union, given the size and complexity of the European polity. Enlargemente will render France more marginal. A similar can be said about Germany, in spite of reunification. Since the coming into force of the Maastricht Treaty in November 1993, Germany has been isolated in Council votes more often than what one would expect, taking into account its natural ability to build coalitions with smaller states with similar economic and social situations. Germany is actually the third state in the EU ranking of "more times in a minority position" between 1993-95. [14] That helps explain why there was no significant extension of majority voting in the new Treaty: to many´s surprise, in the Amsterdam Council the German Chancellor strongly opossed such extension to many areas of EU action.
Enhanced cooperations, in this regard, could become a useful tool for France and Germany to acquire a firmer control over majority decision-making in areas where these two states may loose important votes -now or in the future. It can also help them do away with unanimity requirements in areas where they may want to pass EU legislation from the EU and they can lead a majority. Moreover, with enhanced cooperations member states gain a formal right of initiating legislation that they did not have before. Also, member states willing to resort to an enhanced cooperation may obtain more bargaining power than in normal Community situations, since the can negotiate with the Commission and reluctant member states "under the shadow of enhanced cooperations". The threat to launch an enhanced cooperation if their interests are not respected can be an effective way to get their way in normal Community situations.
Nevertheless, individual member states reluctant to allow these cooperations could use the enshrined veto right to stop their launching or demand a strict compliance with the many legal requirements for launching cooperations or developing them. By doing this, they could possibly hinder the expansion of a new international arena, fit for the EC founding states. They would be defending both today´s supranationalism and their own roles in the existing EU´s international arena. Thanks to the lack of consensus among national goverments over the future of enhanced cooperations, the EU would not become a franchise operation of only some national governments.
Yet enlargement may end up making enhanced cooperations attractive to those governments now suspicious of them. After all, enhanced cooperations can be imagined as a powerful tool to revise the consequences both of future and past enlargements.[15]
To some extent, the introduction of enhanced cooperations could lead to a new supranationalism, that of a smaller community, which would coexist with the classic EC and its "old supranationalism". After all, decision making inside enhanced cooperations formally does not change from normal EC decision-making, except in the voting rules of the Council. Moreover, the Commission acts as the gatekeeper and has the right not to initiate a cooperation. There are conditions and safeguards that have to be met, in order to ensure respect of important Treaty principles, and these guarantees can be invoked before the Court. It is true that inside cooperations the views of participating member states will be taken into account more than in EC political situations. But in any case, inside cooperations EC institutions and constitutional principles will matter.
One serious objection can be made to this line of reasoning: the break between inside and outside member states could turn out to be so damaging to the political climate in the Community that no coexistence between two supranational arenas (and between two social contracts) will remain possible.
Some analysts have suggested that for the time being the old supranationalism remains in place. There are too many restrictions in the Treaty on enhanced cooperations to foresee a widespread use of this mechanism. The idea is to ease the restrictions on these cooperations in future reforms of the Treaty. [16] But some of these restrictions are very subjective (developing Treaty objectives, ensuring first that objectives cannot be achieved by normal procedures, not affecting rights, obligations, policies that already exist...)[17]. Other restrictions are perhaps too strict to apply literally, like the list of domains where cooperations are excluded (citizenship, exclusive competences, policies, actions and programs of the EC). One can easily picture the ECJ discussing the "effet utile" of cooperation norms. Whether enhanced cooperations become operational or not will be largely a matter of political will. Whose?
Infranational actors have contributed to the EU expansion of powers as much as an ambitious Commission in the eigthies or any self-serving national government during the course of European integration. At the same time, infranational actors are as responsible as any EU institution for the member states´sense of loss of power.
Therefore, enhanced cooperations is not only a challenge by some member states to the supranational arena. It may also be a reaction from these member states to infranationalism. A smaller Community can lead to less infranationalism: perhaps with less policy areas and less member states in the game, informal infranational procedures will proliferate less and political control over civil servants and lobbist will become easier.
Nevertheless, this potential restoration of national interests (and also of European interests?) through enhanced cooperations is only one side of the coin. The other side is that, possibly, the birth enhanced cooperations was favoured by some infranational actors. At least eight member states will participate inside each enhanced cooperation. The issues negotiated in the inner circle will be complex and technical, the right ground for infranationalism to develop. And policy-making will follow the same supranational procedures that allow infranationalism to happen in the shadow of the Community process.
Moreover, it is a common practice in today´s EC Commitology to develop some European standards and norms with the real participation of only experts from certain member states, those with the means to conduct research and with a greater interest in the subjet matter. Enhanced cooperations would only confirm what it already exists. [18] Not only that: infranational actors will have a say in the choice of passing legislation through an enhanced cooperation or a normal Community regime -and will be influential voices in the development of the actual cooperations.
[14] See A. Estella, "The Principle of Subsidiarity and its Critique", PhD. Thesis, European University Institute, Law Department, 1997, p. 62
[15] See J. Weiler, "Amsterdam, Amsterdam", op. cit.
[16] See Elhermann, op. cit., p. 80
[17] See M. Petite, "Le traité d'Amsterdam: ambition et realisme", Revue du Marché Unique Européen, 3, 1997, p. 17-53
[18] I would like to thank Christian Joerges for this insight.