Enhanced flexibility: Special regimes of closer cooperation in core state powers
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/1023263X231225536 |
| Author | Maria Patrin |
| Date | 01 October 2023 |
| Subject Matter | Articles |
Enhanced flexibility: Special
regimes of closer cooperation in
core state powers
Maria Patrin*
Abstract
This article looks at the overarching Treaty architecture on secondary law differentiation and investi-
gates three special regimes of closer cooperation, which are modelled upon, but cannot be entirely
reconducted to, the enhanced cooperation procedure of Article 20 TEU. These regimes operate
within core state powers and introduce a layer of additional flexibility in some policy-specificareas.
They are the Article 136.1 TfEU special procedure for euro-related legislation, the fast-track proced-
ureforenhancedcooperationincriminallawandthepermanentstructuredcooperationindefence
policies. The article argues that the web of closer cooperation regimes in secondary law enlarges
the remit of differentiation within the Treaties beyond the standard enhanced cooperation and adapts
it to core state power policy domains. This increased flexibility expands substantially the likelihood of
such differentiation instruments to be used in practice. Moreover, as it extends to the policy fields in
which opt-outs are generally established and where differentiation is mostly needed and operated, this
accrued flexibility can replace, or at least supplement, differentiation through primary law derogations.
Keywords
Differentiated integration, enhanced cooperation, closer cooperation procedures, core state
powers, EU economic governance, EPPO, PESCO
1. Introduction
Differentiation has become by now a constitutive element of the EU legal order.
1
Intended as a
process allowing only some EU Member States to achieve further integration, while others can
*University of Florence, Firenze, Italy
Corresponding author:
Maria Patrin, University of Florence, Via delle Pandette 35, Firenze, 50127, Italy.
E-mail: maria.patrin@unifi.it
1. B. De Witte, ‘An Undivided Union? Differentiated Integration in Post-Brexit Times’,55Common Market Law Review
(2018), who argues that differentiated integration and variable geometry have already now become stable characteristics
of the EU legal order; Böttner even considers differentiation as a constitutional principle or, better, an architectural
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(5) 623–641
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decide not do so,
2
it has grown steadily over the last 30 years, taking different forms and shapes.
Since the Treaty of Maastricht differentiation has been entrenched within primary law in the
form of opt-outs and differentiated policy areas such as the eurozone, or outside of primary law
in the form of separate international Treaties (such the Treaty of Schengen or the European
Stability Mechanism).
3
This type of differentiation operates at the level of primary law because
it is permanently enshrined within the Treaties –or takes place aside of them –and allows for
only limited flexibility in decision-making geometries. In other words, it cannot be modulated on
the basis of the secondary legislation under adoption.
4
In addition to this primary law differenti-
ation, the Treaties also provide for differentiation instruments that operate within secondary law
and can result in different geometries at the level of the acts adopted. The main instrument of sec-
ondary law differentiation was introduced with the Treaty of Amsterdam in the form of enhanced
which operates at the level of secondary law.
This article situates the analysis at this second level of Treaty-based differentiation, focusing on
the regimes of closer cooperation provided for by the Treaties. In addition to, and aside from, the
standard enhanced cooperation procedure of Article 20 TEU, the Treaties establish other so-called
‘special’regimes of closer cooperation that apply to specific policy areas in the field of core state
powers. These are the Article 136.1 TfEU special procedure for euro-related legislation, the fast-
track procedure for enhanced cooperation in criminal law and the permanent structured cooperation
in defence policies. It will be argued that these regimes introduce a layer of additional flexibility in
core state powers, thus enhancing the potential of differentiation and adapting it to the specificity of
particular policy areas.
Despite the pervasive progression of differentiated arrangements in the EU legal system, differ-
entiation is rarely the plan A. It is rather the solution often implemented when the plan A of uniform
integration does not work. When, in other words, the ‘ever closer Union’cannot be achieved among
all people of Europe, a closer Union among only some of them is preferred to no integration at all.
5
However, this is often accompanied by a sort of unease to defy the key principle of the unitary
nature of the EU legal order.
6
Hence, for a long time differentiated integration (DI) was perceived
as an unavoidable destiny, rather than a chosen path. In the face of Brexit, in the aftermath of the
economic and financial crisis and with running Euroscepticism, DI was considered the lesser evil
and a viable practical solution to continue with EU integration, despite rising disagreement about
its ultimate finalité.
7
element of the Union, R. Böttner, The Constitutional Framework for Enhanced Cooperation in EU Law (Brill Nijhoff,
2021), p. 335.
2. T. Chopin and C. Lequesne, ‘Differentiation as a Double-Edged Sword: Member States’Practices and Brexit’,92
International Affairs (2016), p. 531.
3. For a description of the different forms of differentiation see B. De Witte, ‘The Law as Tool and Constraint of
Differentiated Integration’,EUI Working Paper RSCAS 2019/47 (2019), p. 5 ff.
4. A partial exception is the possibility for Ireland (and the UK prior to Brexit) to opt-in selected policies within their broader
opt-outs. See further S. Peers, EU Justice and Home Affairs Law: EU Immigration and Asylum Law (OUP, 2016), p. 8–9.
5. A. Héritier, ‘Quo Vadis, Europa? Five Paths, Their Plausibility and Impact’EUI Working Paper RSC 2021/49 (2021).
6. Case 6-64 Flaminio Costa v. ENEL, EU:C:1964:66; D. Thym, ‘Competing Models for Understanding Differentiated
Integration’, in B. De Witte et al. (eds.), Between Flexibility and Disintegration: The Trajectory of Differentiation in
EU Law (Edward Elgar, 2017), p. 56.
7. D. Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in R. Schütze and T. Tridimas (eds.), Oxford
Principles of European Union Law, vol 1 (OUP, 2018), p. 879.
624 Maastricht Journal of European and Comparative Law 30(5)
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