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

Appendix 2: Letter from the Council of the European Union

Letter to the Chairman from Angel Boixareu, Acting Director General, Directorate-General C, Council of the European Union, 16 November 2011

The President of the European Council thanks you for your letter of 26 October 2011 seeking the view of the Council on the question whether it is possible for a Member State to withdraw from a Council Decision authorising Member States to proceed with enhanced cooperation and asked me to reply as it is a matter which concerns the Council rather than the European Council.

Although some of its members have said in Council that such a withdrawal is possible, the Council itself has never formally expressed a view on the question. When the Council adopted the Decision authorising enhanced cooperation in the area of the creation of unitary patent protection[1] at its meeting of 10 March 2011, it had before it a note from the Presidency[2], paragraph 15 of which stated that the Council Legal Service had pointed out that a Member State referred to in the Council's decision authorising the enhanced cooperation as one of the Member States participating in the enhanced cooperation in question would be entitled to withdraw as long as no substantive act related to the enhanced cooperation had been adopted. There is no evidence of the extent to which that statement may have influenced the Council in its adoption of the Decision.

There is no other evidence of any view of the Council on the question, but, in case it is of any help, I can explain the view of the Council Secretariat.

There are a number of steps in the creation of enhanced cooperation. The first step is for Member States to address a request to the Commission, specifying the scope and objectives of the enhanced cooperation proposed. The Commission may then submit a proposal to the Council to that effect. The authorisation to proceed with the enhanced cooperation is granted by the Council, on the Commission's proposal, after obtaining the consent of the European Parliament. All those steps are governed by Article 329 of the Treaty on the Functioning of the European Union (TFEU).

The final step in the process is the establishment of the enhanced cooperation that has been authorised by the Council. The enhanced cooperation will be established under the appropriate general provisions of the TFEU, subject to the procedural modifications made by Article 330 TFEU. For example, the enhanced cooperation on divorce and legal separation[3] was established under Article 81(3) TFEU, and the enhanced cooperation on unitary patent protection is proposed to be established under Article 118 TFEU.

The Treaties thus make a clear distinction between the authorisation of enhanced cooperation and its establishment. The authorising decision is a necessary step in the creation of enhanced cooperation, but the enhanced cooperation is only established later, when an act is adopted under the appropriate Treaty legal basis.

The distinction is particularly evident in the first sentence of Article 328(1) TFEU, which clearly envisages the possibility that the Member States participating in enhanced cooperation may not be exactly the same Member States as those authorised: "When enhanced cooperation is being established, it shall be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision." The sentence makes it clear that the establishment of enhanced cooperation is something that occurs after the authorisation and that participation in enhanced cooperation is "open to all Member States", regardless of the Member States identified in the authorising decision. The only link that Article 328(1) makes between the authorisation and the ensuing enhanced cooperation is that the Member States that participate in enhanced cooperation must comply with "any conditions of participation laid down by the authorising decision".

This structure is entirely consistent with the normal understanding of authorisation. The concept of "authorising" something does not naturally contain a sense of compulsion. If someone is authorised to do something, it does not normally mean that he is obliged to do it. In envisaging the possibility that authorised Member States might not ultimately participate in enhanced cooperation (and that other Member States might participate), Article 328(1) accordingly respects the normal understanding of the concept of authorisation, and there is nothing elsewhere in the enhanced cooperation provisions of the Treaties that imports a sense of compulsion into the authorisation that is given under Article 329 TFEU.

1   Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (OJ L76, 22.3.2011, p. 53). Back

2   Council document 6524/11. Back

3   Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L343, 29.12.2010, p. 10). Back

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Prepared 14 February 2012