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Europaudvalget 2000-01
EUU Alm.del Bilag 30
Offentligt

Modtaget via elektronisk post. Der tages forbehold for evt. fejl

Europaudvalget

(Alm. del - bilag 30)

traktatændringer

(Offentligt)

Medlemmerne af FolketingetsEuropaudvalg og deres

stedfortrædere

Bilag Journalnummer

Kontor

400.C.2-0

EU-sekr.

6. oktober 2000

Til underretning for Folketingets Europaudvalg vedlægges i forbindelse med regeringskonferencen en note fra den tyske og

italienske delegation vedr. forstærket samarbejde, CONFER 4783/00.

CONFERENCEOF THE

REPRESENTATIVES OF

THEGOVERNMENTSOF THE

MEMBER STATES

Brussels, 4 October 2000 (OR. de/it)

CONFER 4783/00LIMITE

TRANSMISSION NOTE

From:

M. Gunter PLEUGER, Representative of the Federal Republic of Germany and

M. Silvio FAGIOLO, Representative of Italy

To:

Pierre VIMONT, President of the Group of Personal Representatives to the

Intergovernmental Conference

Subject:

IGC 2000:

Enhanced cooperation- Position paper from Germany and Italy

Sir,

You will find attached a position paper on reinforced cooperations and draft amendments to the relevant articles of the

Treaties, submitted jointly to the Intergovernmental Conference by the Germand and Italian Delegations.

We would be grateful if, in connection with our discussions on this topic, you would arrange for the circulation as official

document of the Intergovernmental Conference.

(s.) Gunter Pleuger (s.) Silvio Fagiolo

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_______________

ANNEX I

Enhanced cooperation

1. In the chairman's conclusions of the European Council in Feira, the mandate of the Inter-Governmental

Conference was extended to the issue of enhanced cooperation.

Already in its opinion according to Article 48 of January 2000, the European Commission stated that "the

character of the next round of accessions will create a need to creatively fashion" the existing rules on enhanced

cooperation "in an operative manner". The "more heterogeneous shape of an enlarged Union should not keep

those Member states who intend to use the institutional framework of the Union for a closer cooperation from

doing so".

In its resolution of April 2000, the European Parliament also demanded that "enhanced cooperation should

become a gravitational force in order to allow the Union to achieve progress".

2. On 30 August 2000, the Presidency put forward a paper with detailed proposals on enhanced cooperation

(CONFER 4766/00). Belgium had already introduced a paper on this topic on 28 August 2000 (CONFER

4765/00). Furthermore, on 14 July 2000, Spain introduced proposals specifically on enhanced cooperation in

the second pillar CONFER 4760/00).

Germany and Italy welcome these contributions and support the active efforts by the Presidency for progress in

the discussion of enhanced cooperation. With a view to promoting discussion further, they hereby present a

joint contribution which is divided into the present explanatory paper and draft articles for revised treaty

provisions.

II.

Italy and Germany share the goal to make enhanced cooperation a (in the words of the European Parliament)

"gravitational force in order to allow the Union to achieve progress". This is based on the following main

considerations:

−

In a Union with up to 28 Members, it will become indispensable that those Member states willing to move

ahead on the path of integration are enabled to do so, with full respect for the common institutional

framework and the existing rules and regulations. It should be possible that these Member States can form

an open, functional avantgarde which serves the process of integration and is fully open to future

participation by further Member states.

−

The present conditions for the application of enhanced cooperation, which were drafted in Amsterdam at

the very last moment, practically prevent the use of this instrument.

−

The Union's more recent history shows that enhanced cooperation, if it cannot take place within an

institutional framework, will do so outside that framework. In such a case, the EU institutions such as the

European Parliament and the Commission cannot take their rightful place, what should be avoided.

Furthermore, it would be more difficult to reintegrate it into the treaty context and to ensure access for those

Member states who lacked the ability or the wish to particip ate from the very beginning.

−

Germany and Italy reject the notion of a "Europe à la carte". The instrument of enhanced cooperation must

under all circumstances be used in a selective and politically responsible manner. Enhanced cooperation

should not lead to uncoordinated and random parallel initiatives of divergent groups of Member states. In

this sense, the goal is not so much "enhanced cooperation" but "enhanced integration".

−

The use of enhanced cooperation must serve the common goal of more rapid and increased integration.

The acquis of the Union and its institutional framework must not be compromised by the enhanced

cooperation.

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−

Enhanced cooperation has its role to play also in the field of common foreign and security policy. A self-

evident requirement in this context is the safeguarding of the cohesion and coherence of the common foreign

and security policy. It is therefore imperative that an enhanced cooperation may not run counter to the

"acquis" of policies already formulated within the CFSP. Italy and Germany consider that in political

practice, enhanced cooperation will probably have greater importance in the area of European security and

defence policy and in the implementation of established foreign policy positions. However, they suggest to

avoid legally restricting enhanced cooperation to such probable cases, as was equally avoided when drafting

the present treaty provisions for the first and third pillar.

III.

On the basis of these considerations, Germany and Italy suggest amendments to the Treaties. These

amendments build on the existing structure of the treaty provisions and safeguards and merely aim at the

changes necessary to make enhanced cooperation a viable political instrument in all three pillars:

1. Italy and Germany consider it a key element of any revision of the treaty rules on enhanced cooperation to

abolish the possibility of a single Member state to block enhanced cooperation ("If a Member of the Council

declares that, for important and stated reasons of national policy, it intends to oppose the granting of an

authorisation by qualified majority, a vote shall not be taken."). This provision is one of the main reasons

why enhanced cooperation within the treaty framework, under the existing treaty provisions, is not yet a

politically realistic option. The concept of "important reasons of national policy" is vague and puts no limits

to any Member state's political discretion to hinder other Member states from moving further ahead towards

integration. In the firm opinion of Germany and Italy, an authorisation should be adopted by the Council by

qualified majority, without additonal procedural obstacles.

2. In a Union of up to 28 members, the requirement of the participation of "at least a majority of Member

states" concerned (Article 43 para. 1 d TEU) needs adjustment. Italy and Germany suggest that the quorum

be maintained as it exists today in real terms, i.e. eight Member states, or at best be set at a third of Member

states. In the second pillar and in the specific case that a closer cooperation serves to implement a common

strategy, joint action or common position, they suggest that the minimum number of Member States

concerned be lowered to [five].

−

Germany and Italy further propose to delete Article 43 para. 1 c TEU ("is only used as a last resort, where

the objectives of the said Treaties could not be attained by applying the relevant procedures laid down

therein"). This provision creates the risk of juridical disputes on which efforts were required to establish that

the Treaty objectives could not be attained without the use of enhanced cooperation, a question largely a

matter of political discretion.

−

They also suggest to delete the vague term "interests" in Article 43 para. 1 f TEU ("does not affect the

competences, rights, obligations and interests of those Member states which do not participate therein"),

basically for analogous reasons as in the above paragraph.

−

In Article 43 para. 1 a TEU, on the other hand, Italy and Germany propose to add the phrase "aimed ... at

promoting its integration" as an additional safeguard against a proliferation of cooperations detrimental to

the process of integration of the Union as a whole.

−

Finally, they suggest to add to Article 43 TEU a provision according to which Member States participating

in a closer cooperation will encourage the participation of additional Member Staes wishing to join the

cooperation.

3. In order to establish the possibility of enhanced cooperation also in the second pillar, Germany and Italy

propose the insertion of an Article 27 bis TEU, which generally follows the model of Articles 40 TEU and

11 TEC with the general modifications outlined above, but contains some additional modifications reflective

of specific features of the second pillar:

−

Article 27 bis para. 1 a) and b) contains clauses aimed at ensuring the cohesion of the common

foreign and security policy.

−

Para. 2, second subpara. (requirement of unanimity in case of a negative opinion of the

Commission) gives the Commission the role of a guardian of EU cohesion which it already has in the

first and third pillar, but adapted to the specific character of the common foreign and security policy.

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−

Para. 2, third subpara. lowers the quorum for enhanced cooperation in the case that it serves to

implement a common strategy, joint action or common position.

−

Para. 4 ensures that the High Representative for the common foreign and security policy can play

his role also in the context of enhanced cooperation. Part of his role is to keep the European

Parliament informed on the development of the closer cooperation pursuant to Article 45 TEU.

4. In Article 11 TEC, Italy and Germany also propose:

−

to replace the phrase in para. 1 b "does not affect Community policies, actions and programmes" by "does

not cause any prejudice". The actual precondition contained in para. 1 b, if taken seriously, is virtually

impossible to fulfill.

−

to delete para. 1 c ("does not concern the citizenship of the Union or discriminate between nationals of

Member states"). This restriction introduced in the last negotiation phase of the Amsterdam IGC prevents a

group of Member states to develop Articles 17 to 22 TEC further, e.g. by granting the right to vote not only

in local elections, but also in country-wide political elections. A safeguard against falling behind the present

rules on the citizenship of the Unio n is contained in Article 43 para. 1 a TEU as suggested by Germany and

Italy ("aimed ... at promoting its integration"), in addition to the main safeguard already provided for in the

existing Art. 43 para. 1 e TEU.

−

the suggested addition to para. 1 d ("as provided for in particular by Article 3") gives an element of greater

precision.

ANNEX II

Draft amendments to the Treaties

Treaty on the European Union

ARTICLE 27 bis

5. Member States which intend to establish closer cooperation between themselves in the common foreign and security

policy may be authorised, subject to Articles 43 and 44, to make use of the institutions, procedures and mechanisms laid

down by the Treaties provided that the proposed cooperation:

a) respects the powers of the European Communities, as well as the objectives set for the CFSP by this Title and

serves the policies and strategies defined in the common foreign and security policy;

b) aims to promote the identity of the Union as an actor in foreign and security policy and does not impair its

effectiveness as a cohesive force in international relations.

6. The authorisation referred to in paragraph 1 shall be granted by the Council acting by qualified majority at the request

of the Member States concerned and after inviting the Commission and the Secretary-General of the Council, High

Representative for the common and security policy to present their opinions; the request shall also be forwarded to the

European Parliament. When the Commission expresses the opinion that a proposed closer cooperation in the CFSP is not

advisable for the reasons contained in Article 43 paragraph 1 a) or b), the authorisation referred to in paragraph 1 shall

be granted by unanimity. In that case, abstentions by members present in person or represented shall not prevent the

adoption of the said authorisation. When a closer cooperation is proposed in order to implement a common strategy, joint

action or common position, the minimum number of concerned Member States can be [five].The votes of the members of

the Council shall be weighted in accordance with Article 205 (2) of the Treaty establishing the European Community.

7. Any Member State which wishes to become a party to cooperation set up in accordance with this Article shall notify its

intention to the Council and to the Commission, which shall give an opinion to the Council within three months of receipt

of that notification. Within four months of the date of that notification the Council shall decide on the request and on

possible specific arrangements as it may deem necessary. This decision shall be deemed to be taken unless the Council,

acting by qualified ma jority, decides to hold it in abeyance; in this case, the Council shall state the reasons for its decision

and set a deadline for re-examining it. For the purposes of this paragraph, the Council shall act under the conditions set

out in Article 44.

8. The Secretary-General of the Council, High Representative for the common and security policy shall be fully associated

with the closer cooperation. He shall keep the European Parliament regularly informed on the development of the closer

cooperation pursuant to Article 45.

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9. The provisions of Articles 11 to 28 shall apply to the closer cooperation provided for by this Article, save as otherwise

provided for in this Article and Articles 43 and 44.

Title VI

Provisions on police and judicial cooperation in criminal matters

Article 40

1. Member States which intend to establish closer cooperation between themselves may be authorised, subject to Articles 43 and 44, to

make use of the institutions, procedures and mechanisms laid down by the Treaties provided that the cooperation proposed:

a) respects the powers of the European community, and the objectives laid down by this Title;

b) has the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice.

2. The authorisation referred to in paragraph 1 shall be granted by the Council, acting by a qualified majority at the request of the

Member States concerned and after inviting the Commission to present its opinion; the request shall also be forwarded to the

European Parliament.

If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the granting of an

authorisation by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter

be referred to the European Council for decision by unanimity.

The votes of the members of the Council shall be weighted in accordance with this Article 205 (2) of the Treaty establishing the

European Community. For their adoption, decisions shall require at least 62 votes in favour, cast by at least 10 members.

3. Any Member State which wishes to become a party to cooperation set up in accordance with this Article shall notify its intention to

the Council and to the Commission, which shall give an opinion to the Council within three months of receipt of that notification,

possibly accompanied by a recommendation for such specific arrangements as it may deem necessary for that Member State to become

a party to the cooperation in question. Within four months of the date of that notification, th e Council shall state the reasons for its

decision and set a deadline for re-examining it. For the purposes of this paragraph, the Council shall act under the conditions set out in

Article

4. The provisions of Articles 29 to 41 shall apply to the closer cooperation provided for by this Article, save as otherwise provided for

in this Article and in Articles 43 and 44.

The provisions of the Treaty establishing the European Community concerning the powers of the Court of Justice of the European

Communities and the exercise of those powers shall apply to paragraphs 1, 2 and 3.

5. This Article is without prejudice to the provisions of the Protocol integrating the Schengen Acquis into the framework of the

European Union.

Draft amendment to Article 40

1. Member States which intend to establish closer cooperation between themselves may be authorised, subject to Articles 43 and 44, to

make use of the institutions, procedures and mechanisms laid down by the Treaties provided that the cooperation proposed:

c) respects the powers of the European Community, and the objectives laid down by this Title;

d) has the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice

2. The authorisation referred to in paragraph I shall be granted by the Council, acting by a qualified majority at the request of the

Member States concerned and after inviting the Commission to present its opinion; the request shall also be forwarded to the

European Parliament.

(sentence deleted)

The votes of the members of the Council shall be weighted in accordance with Article 205(2) of the Treaty establishing the European

Community.

(sentence deleted)

3. Any Member State which wishes to become a party to cooperation set up in accordance with this Article shall notify its intention to

the Council and to the Commission, which shall give an opinion to the

Council within three months of receipt of that notification, possibly accompanied by a recommendation for

such specific arrangements as it may deem necessary for that Member State to become a party of the cooperation in question. Within

four months of the date of that notification, the Council shall decide on the request and on such specific arrangements as it may deem

necessary. The decision shall be deemed to be taken unless the Council, acting by a qualified majority, decides to hold it in abeyance; in

this case, the Council shall state the reasons for its decision and set a deadline for r e-examining it. For the purposes of this paragraph,

the Council shall act under the conditions set out in Article 44.

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4. The provisions of Articles 29 to 41 shall apply to the closer cooperation provided for by this Article, save as otherwise provided for

in this Article and in Articles 43 and 44.

The provisions of the Treaty establishing the European Community concerning the powers of the Court of Justice of the European

Communities and the exercise of those powers shall apply to paragraphs 1, 2 and 3.

5. This Article is without prejudice to the provisions of the Protocol integrating the Schengen acquis into the framework of the

European Union.

TITLE VII

PROVISIONS ON CLOSER COOPERATION

Article 43

1. Member States which intend to establish closer cooperation between themselves may make use of the

institutions, procedures and mechanisms laid down by this Treaty and the Treaty establishing the European

Community provided that the cooperation:

e) is aimed at furthering the objectives on the Union and at protecting and serving its interests;

f) respects the principles of the said Treaties and the single institutional framework of the Union;

g) is only used as a last resort, where the objectives of the said Treaties could not be attained by applying the

relevant procedures laid down therein;

h) concerns at least a majority of member States;

i) does not affect the 'acquis communautaire' and the measures adopted under the other provisions of the said

Treaties;

j) does not affect the competences, rights, obligations and interests of those Member States which do not

participate therein;

k) is open to all Member States and allows them to become parties to the cooperation at any time, provided that

they comply with the basic decision and with the decisions taken within that framework;

l) complies with the specific additional criteria laid down in Article 11 of the Treaty establishing the European

Community and Article 40 of this Treaty, depending on the area concerned, and is authorised by the Council in

accordance with the procedures laid down therein.

2. Member States shall apply, as far as they are concerned, the acts and decisions adopted for the

implementation of the cooperation in which they participate. Member States not participating in such

cooperation shall not impede the implementation thereof by the participating Member States.

Draft amendment to Articles 43

1. Member States which intend to establish closer cooperation between themselves may make use of the

institutions, procedures and mechanisms laid down by this Treaty and the Treaty establishing the European

Community provided that the cooperation:

m) is aimed at furthering the objectives of the Union,

at promoting its integration

and at protecting and serving

its interests;

n) respects the principles of the said Treaties and the single institutional framework of the Union;

o) (sentence deleted);

p) concerns at least

eight (word deleted)

Member States;

q) does not affect the 'acquis communautaire' and the measures adopted under the other provisions of the said

Treaties;

r) does not affect the competences, rights

and

obligations

(word deleted)

of those Member States which do not

participate therein;

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s) is open to all Member States and allows them to become parties to the cooperation at any time, provided that

they comply with the basic decision and with the decisions taken within that framework;

t) complies with the specific additional criteria laid down in Article 11 of the Treaty establishing the European

Community and Article 40 of this Treaty, depending on the area concerned, and is authorised by the Council in

accordance with the procedures laid down therein.

2. Member States shall apply, as far as they are concerned, the acts and decisions adopted for the

implementation of the cooperation in which they participate.

3. Member States participating in a closer cooperation shall encourage the participation of Member

States wishing to become a party to that cooperation.

Treaty establishing the European Community

Article 11

1. Member States which intend to establish closer cooperation between themselves may be authorised,

subject to Articles 43 and 44 of the Treaty on European Union, to make use of the institutions, procedures

and mechanisms laid down by this Treaty, provided that the cooperation proposed:

u) does not concern areas which fall within the exclusive competence of the Community;

v) does not affect Community policies, actions or programmes;

w) does not concern the citizenship of the Union or discriminate between nationals of Member States;

x) remains within the limits of the powers conferred upon the Community by this Treaty, and

y) does not constitute a discrimination or a restriction of trade between Member States and does not distort the

conditions of competition between the latter.

2. The authorisation referred to in paragraph 1 shall be granted by the Council, acting by a qualified majority

on a proposal from the Commission and after consulting the European Parliament.

If a member of the Council declares that, for important and stated reasons of national policy, it intends to

propose the granting of an authorisation by qualified majority, a vote shall not be taken. The Council may,

acting by a qualified majority, request that the matter be referred to the Council, meeting in the composition

of the Heads of State or Government, for decision by unanimity.

Member States which intend to establish closer cooperation as referred to in paragraph 1 may address a

request to the Commission, which may submit a proposal to the Council to that effect. In the event of the

Commission nor submitting a proposal, it shall inform the Member States concerned of the reason for not

doing so.

3. Any Member State which wishes to become a party to cooperation set up in accordance with this Article

shall notify its intention to the Council and to the Commission, which shall give an opinion to the Council

within three months of receipt of that notification. Within four months of the date of that notification, the

Commission shall decide on it and on such specific arrangements as it may seem necessary.

4. The acts and decisions necessary for the implementation of cooperation activities shall be subject to all

the relevant provisions of this Treaty, save as otherwise provided for in this Article and in Articles 43 and 44

of the Treaty on European Union.

5. This Article is without prejudice to the provisions of the Protocol integrating the Schengen acquis into the

framework of the European Union.

Draft amendment to Articles 11

1. Member States which intend to establish closer cooperation between themselves may be authorised,

subject to Articles 43 and 44 of the Treaty on European Union, to make use of the institutions, procedures

and mechanisms laid down by this Treaty, provided that the cooperation proposed:

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z) does not concern areas which fall within the exclusive competence of the Community;

aa) does not

cause any prejudice

to the Community policies, actions or programmes;

bb) (Sentence deleted);

cc) remains within the limits of the powers conferred upon the Community by this Treaty,

as provided for in

particular by Article 3;

dd) does not constitute a discrimination or a restriction of trade between Member States and does not distort the

conditions of competition between the latter.

2. The authorisation referred to in paragraph 1 shall be granted by the Council, acting by a qualified majority

on a proposal from the Commission and after consulting the European Parliament.

(sentence deleted)

Member States which intend to establish closer cooperation as referred to in paragraph 1 may address a

request to the Commission, which may submit a proposal to the Council to that effect. In the event of the

Commission not submitting a proposal it shall inform the Member States concerned of the reasons for not

doing so.

Any

Member State which wishes to become a party to cooperation set up in accordance with this Article

shall notify its intention to the Council and to the Commission, which shall give an opinion to the Council

within three months of receipt of that notification. Within four months of the date of that notification, the

Commission shall decide on it and on such specific arrangements as it may seem necessary.

4. The acts and decisions necessary for the implementation of cooperation activities shall be subject to all

the relevant provisions of this Treaty, save as otherwise provided for in this Article and in Articles 43 and 44

of the Treaty on European Union.

5. This Article is without prejudice to the provisions of the Protocol integrating the Schengen acquis into the

framework of the European Union.