Towards a More Flexible Approach to Enhanced Cooperation

Abstract

If enhanced cooperation is not to be buried a stillbirth, a different balance has to be sought between the uniformity and flexibility of the European legal order. What is argued in this contribution is that this requires the shaping of a sui generis approach to enhanced cooperation to build on common procedures incorporating key elements of the regulation of initiating and admission to enhanced cooperation in all the three pillars. Given more room for manoeuvre, some Member States would be able to run enhanced cooperation projects notwithstanding the apparent impossibility to do so stemming from the black letter text of the Treaties today. When interpreted with the idea of effect utile in mind, such a reading is not only possible but should also be mandated, since as interpreted in present, enhanced cooperation is unable to serve as an instrument of flexibility. Those dismissing this rather more flexible approach to enhanced cooperation should consider the alternative. A continuous lack of flexibility within the European legal framework for a closer collaboration of Member States willing to advance the process of integration has every potential of leading to an ever increasing flight into forms of intergovernmental cooperation, ultimately at the expense of the unique supranational nature of the European legal order.

Keywords: European Union, Law, Flexibility, Enhanced Cooperation, Uniformity