Enhanced cooperation

In the European Union (EU), enhanced cooperation is a procedure where a minimum of nine EU member states are allowed to establish advanced integration or cooperation in an area within EU structures but without the other members being involved. As of October 2017 this procedure is being used in the fields of divorce law, patents, property regimes of international couples, and European Public Prosecutor and is approved for the field of a financial transaction tax. This is distinct from the EU opt-out, that is a form of cooperation between EU members within EU structures, where it is allowed for a limited number of states to refrain from participation (e.g. EMU, Schengen Area). It is further distinct from Mechanism for Cooperation and Verification and permanent acquis suspensions, whose lifting is conditional on meeting certain benchmarks by the affected member states. Enhanced cooperation was introduced by the Treaty of Amsterdam for community, judicial cooperation and criminal matters. The Treaty of Nice simplified the mechanism and forbade opposition to the creation of enhanced cooperation. It also introduced cooperation for the Common Foreign and Security Policy, except for defence matters. The Treaty of Lisbon extended cooperation to include defence and additionally envisions the possibility for establishment of a permanent structured cooperation in defence. The provisions governing enhanced cooperation are now detailed in the Treaty on European Union (Article 20) and Treaty on the Functioning of the European Union (Article 326-334). The Schengen Agreement adoption is considered a historical inspiration for formalising the mechanism of Enhanced cooperation. It was created by European Communities member states only, but outside of its structures, in part owing to the lack of consensus amongst all members over whether it had the competence to abolish border controls, and in part because those ready to implement the idea did not wish to wait for others. As there was no Enhanced cooperation mechanism back then it was impossible to establish it inside the Community structures from the start, but afterwards the Schengen Agreement was subsumed into European Union law by the Treaty of Amsterdam as the rules of the Schengen Area. With its integration into general EU law it was transformed from a precursor Enhanced cooperation into an opt-out. Enhanced cooperation allows for a minimum of nine member states (which amounts to almost one-third at the moment) to co-operate within the structures of the EU without all member states. This allows them to move at different speeds, and towards different goals, than those outside the enhanced cooperation area. It is designed to overcome paralysis, where a proposal is blocked by the veto of an individual state or a small group who do not wish to be part of the initiative. It does not however allow for an extension of powers outside those permitted by the treaties of the European Union and is only allowed as a last resort where objectives cannot be achieved normally. It may not discriminate against members, it must further the objectives in the treaties and may not fall within an area which is of exclusive competence of the EU. The mechanism needs a minimum of nine Member States, who file a request with the European Commission. If the Commission accepts it then it has to be approved by a qualified majority of all member states to proceed. A member may not veto the establishment of enhanced cooperation except for foreign policy. With the rise in cross border divorce in the EU, common rules were put forward to settle the issue of under which law trans-national couples can divorce in the EU. However Sweden blocked the new rules, fearing the loss of its liberal divorce law (divorce law differs strongly, with Nordic liberalism with relatively 'easy' procedures, being in contrast to more conservative countries such as Malta which has only recently permitted it). To allow those willing states to proceed without Sweden, in July 2008 nine countries put forward a proposal to use enhanced cooperation: Austria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain. Belgium, Germany, Lithuania and Portugal were considering joining them. At a meeting of the justice ministers on 25 July 2008, the nine states decided to formally seek the measure of enhanced cooperation; eight states (the nine states above minus France) formally requested it from the European Commission on 28 July 2008. On 24 March 2010, when the law was formally proposed by the commission, Bulgaria was the tenth state to join the aforementioned eight and France. Belgium, Germany and Latvia formally joined them on 28 May 2010, while Greece withdrew.