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The title of this essay reflects my intention to make some "critical remarks" about the introduction of rules on enhanced cooperations in the EC Treaty. There are already some implicit criticisms in the brief description I have made of the birth of enhanced cooperations and in my suggestions about its possible redistributive impact on the political arenas of the Community. In this last section, however, I would like to take more openly a normative position and list some general or "constitutional" criticisms on enhanced cooperations.
Enhanced cooperations could undermine valuable constitutional rules, principles and practices that today determine the way EC law is created. The existing EC constitutional framework of "bits and pieces" is worsened and not improved by cooperations. These cooperations can turn out to be an experiment that benefits mainly a few national governments, which would promote a new kind of integration and uniformity, tightly controlled from the center. This is rather different from an understandable demand of more "diversity" from the periphery, even if it is made in the name of the principle of "flexible integration". [19]
In addition, cooperations will increase the lack of transparency and the complexity of the EC decision-making process, already in dire need of simplification. The ordinary citizen hardly understands today how the Community legislates: with enhanced cooperations, the goal of "legitimation through process" will be harder to achieve. And the Community will be again privileging private actors with the means to circulate without getting lost in the each time more complex European maze. These actors will be rewarded with renewed access and influence to cooperation policy-making processes.
From an institutional perspective, cooperations pose two other very serious questions. First of all, as it has been already mentioned, cooperations will break the solidarity principle that is behind the extended practice of majority-voting in the Council, a great constitutional achievement of the Community. Secondly, the cooperations can create new incentives for the expansion of EC powers. Cooperations will empower participating national goverments and will give them a false sense of being in control over the legislative outcomes they negotiate in the hard core. This would tipically result in the deepening of what is perhaps the greatest legitimacy problem of the Community, the lack of legal or political limits on the scope of EC competences.
A host of legal problems will arise too with enhanced cooperations: rules to decide the compatibility of enhanced cooperations norms with "normal" Community norms will be only one of them.
Even if enhanced cooperations never work or become a marginal tool with no real practical effect on the Community´s legislative output, I have my doubts whether we can dismiss the birth of cooperations as a misguided or nostalgic attempt by member states to make a come back. Its symbolism is highly negative. The codification of cooperation rules is already used in the political discourse as an excuse not to engage in much necessary democratic reforms of Community institutions: enhanced cooperations help justify today´s lack of constitutional debate and the narrow focus on technical aspects of monetary union and enlargement. Moreover, the "threat" to launch enhanced cooperations, however difficult the actual launching may be, will affect negatively European politics. It will bring to the negotiating table the aspiration of a Union guided by a directorate of some national governments, a total anachronism and a false way out of a healthy constitutional crisis.
[19] I am indebted to Renaud Dehousse for this idea.