Withdrawal from enhanced cooperation: Government Response to the Committee's Thirty-ninth Report of Session 2010-12 - European Scrutiny Committee Contents

Appendix 1: Government Response

Letter to the Chairman from Baroness Wilcox, Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills, 24 November 2011

I would like to thank the Committee for their consideration of this important issue which is relevant not only to the unitary patent but also potentially to other areas of cooperation among EU Member States in the future.

As we proceed further along the path of negotiations, and having had the opportunity to reflect on the Committee's questions and the answers we gave, I wonder whether some additional clarification would be helpful.

In the Committee's assessment of the evidence and in the Conclusions of the Report, reference is made in paragraph 24 to Member States "withdrawing from a future decision to proceed with enhanced cooperation" and in paragraph 30 to Member States "withdrawing from a legally binding Council Decision". This may be a convenient shorthand, but it is not what we mean when we talk about States withdrawing from enhanced cooperation before it has been established.

Clearly the Council has to authorise participation among a reduced number of states by a binding legal decision, since as the Committee points out, these are exceptional measures to be taken as a last resort. But the authorisation decision itself does not bind Member States to participation in the implementing acts adopted in the framework of enhanced cooperation.

While the authorised Member States may decide not to participate in eventual implementing acts, this does not in fact amount to withdrawal from the authorisation decision - such Member States were authorised and they continue to be authorised to participate. The decision still stands.

The Treaty does provide for further authorisations to proceed if Member States wish to join who were not covered by the initial authorisation, since those states have not been authorised by the Council.

As to the implementing acts, they can only be agreed by Member States that have been authorised, and there must be at least nine of them. But this latter condition follows from the requirements for enhanced cooperation set out in the Treaty, and does not need to be restated in the acts themselves

The implementing acts are themselves separate Council decisions which would impose binding obligations on the participating Member States. Participating Member States would not be able to withdraw from these binding obligations. The implementing acts differ from the authorisation decision in the nature of the obligations imposed. The authorisation decision merely authorises participating Member States to proceed to establish enhanced cooperation. The implementing acts would bind Member States to observe the obligations imposed by those acts.

I appreciate that these arguments are to some extent philosophical and to some extent hypothetical, since at present we fully expect to be able to participate in the implementing acts adopted within the framework of enhanced cooperation for the EU unitary patent. But I do understand the Committee's wider view in relation to the possibility of enhanced cooperation being used in other areas where the UK's interests may be different.

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Prepared 14 February 2012