Enhanced Cooperation and Economic and Monetary Union: a Comparison of Models of Flexibility

BY GIULIA ROSSOLILLO is vice-President of the UEF and professor of European Union Law at the University of Pavia. Since 2008 she is the editor of “Il Federalista / The Federalist” magazine, a review based on the principles of federalism.

INTRODUCTION

The emergence of forms of flexibility in European Union law is a phenomenon that, in some respects, has been present since the dawn of the process of European integration. The Treaty establishing the European Economic Community provided the Member States with the possibility of adopting safeguard measures or of retaining under certain conditions measures that the achievement of the Customs Union would have otherwise made obligatory to abolish.1 Even though this was a temporary form of differentiation, the Community law was not being applied uniformly throughout the European Community.

Nevertheless, it was from the time of the Maastricht and Amsterdam Treaties that the significance of this phenomenon really became apparent. Access to the Euro was reserved to countries meeting specific economic and legal requirements, while others were granted the right to stay out. The United Kingdom, Denmark and Ireland were granted opt outs in the field of Justice and Home Affairs and regarding the Schengen acquis, and the enhanced cooperation mechanism was enshrined, allowing a vanguard of Member States to advance more rapidly towards integration in particular fields.

For the last years, enhanced cooperation has been used to regulate fields such as the definition of the law applicable to divorce and legal separation in 2010 or the unitary patent protection in 2012. In 2013, an authorisation was granted by the Council to eleven Member States wishing to explore options for a financial transaction tax.

Many have proposed that enhanced cooperation might be a useful instrument to complete the Economic and Monetary Union. This prospect presents some problematic aspects, on account of the difficulty of reconciling an instrument designed to provide geographical flexibility and a particular form of differentiation – the EMU - with its own defined membership and which is increasingly tending to constitute a veritable subsystem within the European Union.