Enhanced cooperation in practice. An analysis of differentiated integration in EU secondary law

Abstract

The article offers a first comprehensive overview of the workings of enhanced cooperation in the European Union (EU). Although this form of secondary law differentiation exists since the Amsterdam Treaty, it has only rarely been used so far. In the article, we formulate a theory of when and why enhanced cooperation is used in EU decision-making. Our theory builds on rationalist institutionalism focussing on institutions, preference constellations and the externality structure of policies. We test the plausibility of our theoretical claims by combining comparative and within-case analyses of nine cases. The empirical findings underline that the usage of enhanced cooperation depends to large degrees on the externality structure of the goods under consideration. The article ends with a short normative evaluation of the enhanced cooperation procedure.

Opting out from European Union legislation: the differentiation of secondary law

“…The EU's general and binding legal acts, directives and regulations, may exempt specific member states from individual provisions or introduce special rules for them, and thus contribute to uneven levels of integration beyond the treaties. And yet we know very little about legislative differentiation in the EU apart from the rare cases falling under the EU's Enhanced Cooperation clause (Kroll & Leuffen 2015) and studies focusing on a few individual policy areas (e.g. chapters in Dyson & Sepos 2010;Martinsen & Wessel 2014).…”

On the Methodology of Studying Differentiated (Dis)integration: Or How the Potential Outcome Framework Can Contribute to Evaluating the Costs and Benefits of Opting In or Out

“…Kölliker backs his theoretical claims with case studies. Kroll and Leuffen (), again using qualitative case studies, back Kölliker's expectations using a large sample related to the enhanced cooperation procedure. Jensen and Slapin () provide another exception to the general observation that there is a lack of studies on the effects of differentiated integration.…”

Manifest and Latent Control on the Council by the European Council

“…The PP consists of two elements: a European patent with unitary effect and a Unified Patent Court (UPC). 3 Yet, since unanimity among all EU countries could not be reached, 25 member states agreed to authorize enhanced cooperation for the creation of a European patent with unitary effect in March 2011 (Kroll and Leuffen 2015). To implement the authorization of enhanced cooperation, the Commission submitted two legislative proposals in April 2011 (COM(2011) 215 final and COM(2011) 216 final) alongside the international agreement on the UPC.…”