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Closer Coop 01

Closer Cooperation in its Legal and Political Context; An Assessment
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This paper was written in 2001, b e f o r e the Treaty of Lisbon was ratified.

Certain details have been changed at Lisbon, but the essence of the analysis remains valid.



Table of Contents


Page

Introduction 1
The meaning of acquis communautaire 1
The meanings of “closer cooperation” 2
Proto Cooperations 3
Specific Cooperations 4
Framework Programs 4
EMS 4
Social Chapter 4
EMU 5
Schengen 6
Specific Cooperation in the Treaty of Amsterdam 7
Generalised Cooperation in the Treaty of Amsterdam 8
Title VII Provisions on Closer Cooperation 9
Pillar I 10
Pillar II 10
Pillar III 11
The non-impact of generalised cooperation on the acquis 12
Generalised Cooperation in the Treaty of Nice 12
Why Generalised Cooperation has remained ellusive 14
Mismatched Profiles 15
Gulliver Flat on his Back 15
Summary 16




Closer Cooperation in its Legal and Political Context; An Assessment




Introduction

This paper begins with a discussion of the meanings of the two key terms; closer cooperation and acquis commautaire. Both have been used with various shades of meaning, making it necessary to choose working definitions. A pragmatic taxonomy of the various forms of closer cooperation is proposed. A comparatively narrow definition of acquis is chosen.


Next, there is an account of the major cases of cooperation among the Member States with some discussion of their impact on the acquis. This section is organised chronologically, beginning with the Belgian Luxembourgish currency union and finishing with the Treaty of Nice.

The assessment of the impact includes an account of why certain forms of cooperation are far more frequent than others.


The meaning of „acquis communautaire“

The term acquis commautaire appears in the text of the Treaties without any formal or legally binding definition. There is a definition given by the Commission which is as official as terminology can be. It reads:

„The acquis communautaire or Community patrimony is the body of common rights and obligations which bind all the Member States together within the European Union. It is founded principally on the Treaty of Rome and the instruments that supplement it (the wide Single European Act, the Treaty on European Union, etc.), plus the wide range of secondary legislation enacted under them. .

In general, this definition leaves room for debate. Some questions concern details of jurisprudence such as the precise delineation of a frontier between the Community’s acquis and that of the EEA . Schemes for subdividing the acquis into more manageable subsets have been suggested

Other open questions are more fundamental; are only the rulings of the Court of Justice can be counted as elements of the acquis commautaire or do the methods employed by the Court also enter the acquis ? If the methods are taken to be an integral part of the acquis, it becomes at once more rigid than if only the results are included. For the present paper, the methods used by the Court will be excluded from the definition of the acquis. Due to the secrecy of the Court’s deliberations, we have access only to individual judge’s and advocate general’s accounts, but not to those of the Court as such . The information made available about the reasoning of the Court over and above what appears in the Advocate General’s opinion and in the verdict itself is too vague to support conclusions of any weight A narrower definition that excludes the methods from the acquis will be used.

Do the fundamental principles of EU law belong to the acquis? The answer chosen will predetermine the assessment of closer co-ordination. If an affirmative answer is given and accepted, the further conclusion will be that closer cooperation will always clash with the acquis to some degree because principles tend to universality while exceptions are specific. Stephen Weatherill has presented this argument. He showed that the Social Policy Protocol could not be reconciled with the principles of equality and undistorted competition

There is room for a more restrictive definition that places the non-statutory principles of EU law beyond the bounds of the acquis. Weatherill finishes his contribution with an appeal to replace the term acquis communautaire by the noyau communautaire which is a subset of the extended acquis, arguing that the acquis is too vague to be of use. Chronologically, the general principles of law emerged after the Treatises, regulations, directives and judgements of the Court. Other principles were taken over either from international law or from the set of principles common to the legal systems of all Member States. Since these principles are abstractions of what is already in the acquis, they add no new content; their role is to make its structure more transparent. Removing them from the narrow definition will mean that a given statement about the acquis can be falsified by the simple though tedious process of interpreting texts and applying them to facts. Debates about principles would prove irrelevant to the real politics and the practical jurisprudence of European integration .

For the present purpose, the relatively concise definition proposed by the Commission will be used.


The meanings of „closer cooperation“

In the Treaties of Maastricht and of Amsterdam the term was used to describe certain procedures by which a subset of the Member States could form what might have been called a sub-Community under Pillar I or a sub-Union under Pillar III. The Treaty of Nice replaced it with „enhanced cooperation“.

These forms of cooperation among the Member States are neither the first nor the only ones. The other forms of cooperation will provide with some points of reference for placing the provisions in the three Treaties in context. Their descriptions should be understood as background material for understanding the Treaty provisions.

There is literature dealing with terminologies and taxonomies of the forms of cooperation among Member States . The existing terminologies use feature of cooperation for defining their categories that are not relevant to the acquis. This will make it necessary to coin some terms in order to avoid repeating long descriptive phrases. The relevant criterion here are the source and the subject of the provisions for a cooperation. Here are some working definitions.

• A proto cooperation is one that began before the Treaty of Paris came into force.
• A para cooperation is one that began after the Treaty of Paris but was based on international law rather than on European law.
• A specific cooperation is one has a defined area of application (monetary policy, for an example) and that has its own specific legal provisions, wherever these may be laid down.
• A generalised cooperation is one that shares the legal provisions for its creation and operation with other cooperations. So far, these legal provisions have been written into the Treaties. Therefore, the generalised cooperations can be conveniently subdivided into Maastricht, Amsterdam and Nice cooperations.


Proto Cooperations

In 1921 Belgium and Luxembourg founded a currency union . Near the end of the second world war, in 1944, the Netherlands joined with those two countries to form the Benelux Economic Union . The process of European integration proceeded in 1950 with the Schumann Declaration which lead to close cooperation between France and Germany.

The creation of the European Coal and Steel Community (ECSC) brought the first phase of organised European integration to its culmination. The ECSC was in some ways a fusion of the Benelux trio with the Paris Bonn duo plus Italy. The relations between the Benelux Union and the EEC were written into the Treaty of Rome

The proto cooperation between France and Germany was never formally written into the Treaties, but it was arguably the single most important fact in the practical politics of European integration, especially in the development of the Common Agricultural Policy. Initiatives supported by both were adopted in Council, those opposed by both were rejected. When one partner opposed an initiative supported by the other one, the result was blockage until the two reached a compromise

The proto cooperations established something of precident at a time when the acquis had not yet come into being. Their effect was long term and subtle.


Specific cooperations

Framework Programs

The Single European Act included provisions for the research cooperation that had been going on within the EC . This was the first example of a para cooperation that was subsequently converted into a specific cooperation.

EMS

The European Monetary System (EMS) was created in 1979 to counter the instability of the foreign exchange markets that followed the breakdown of the Bretton Woods system. Its legal foundations were decisions taken by the Bremen Council in 1978 At no time were all the Members of the (then) EC also members of the EMS. Some members of the EMS left it, either temporarily or permanently; Italy, Portugal, Spain, the United Kingdom.

The EMS’ impact on European Integration and on the acquis was mediated via its direct successor, EMU.


The Social Chapter

At the Strasbourg Council of 1989, eleven of the then twelve Member States adopted a Social Charter . An action programme of 45 pieces of legislation was proposed. It included measures for the protection of pregnant and of young workers, for health and safety at work, and limits on working time. No progress towards a consensus or at least a compromise was made during the following two years and the Tory government made it clear that it would not change its stance.

In the course of the Maastricht IGC the Social Charter was appended to the Treaty as a protocol which became known colloquially as the Social Chapter. The cooperation among the partners was structured in a simple way; the eleven (later to be fourteen) partners proceeded as with other business leaving the United Kingdom aside . The same IGC wrote provisions for generalised cooperation into the same Treaty in Article K 15. It was here that the term „closer cooperation“ entered into the text of the Treaties for the first time.

Some observers noted the increase in complexity that this form of cooperation introduced into the acquis; there were now five distinct legal bases for social policy instruments . Professor Curtin argued that there was a substantial dilemma about the question of whether the directives adopted under the Social Chapter could be considered to be part of the acquis .


EMU

It became clear early on that not all Member States would participate in the project of the monetary union and that some of the ones willing to participate might not be able to fulfil the criteria. Each of the three (later four) non-participants remained outside EMU in it own way. The United Kingdom obtained a derogation from the third phase of the EMU which it was free to revoke. After the Danish electorate rejected the Treaty of Maastricht largely because of the EMU, a protocol excepting Denmark was appended. The Danes accepted the amended Treaty by a slim majority in a second referendum. Greece was willing to join EMU but could not fulfil the convergence criteria in time with the nine participants . Sweden simply did not fulfil the convergence criterion of EMS membership although its economy is stronger than that of several EMU participants.


Again, the Member States set the newly agreed provisions for (closer) generalised cooperation to one side in favour of specific cooperation.

The key difference was that a monetary union between G7 countries and others that far less advanced economies must involve some objective entry criteria which could not have been reconciled with Article K 15. Had there been a strong political will proceed by way of generalised cooperation, it would have been necessary, at least, to wrap the EMU in K 15 and then to add a specific derogation to Treaty authorising the convergence criteria and, if necessary, the EMU’s institutions.


Schengen

The governments of the Member States were engaged in a third European initiative while they were working on the Social Chapter and the EMU. For years systematic border controls for travellers within the Benelux Union, the Nordic Passport Union and the between the United Kingdom and Ireland had been suppressed. Moves in that direction at the level of the EC had made no significant progress in the two decades following the two Treaties of Rome.

Progress outside the EC proved nearly as difficult as within. The original Schengen Agreement was signed in 1985 and ran to a mere twenty pages. In 1990 an implementing convention running to sixty pages was signed. It established an Executive Committee with legislative powers. By 1999 the Schengen process had developed its own acquis which ran to nearly seven hundred pages in the English language version . This was circa one percent of the Community acquis .

Some, but not all of the EC (and later EU) Members acceded to Schengen, some internal borders became external frontiers of the Schengen area. Since the Schengen acquis proceeded toward relaxing its internal controls while reinforcing the external ones, tensions between the two rival acquis were inevitable. The fact that both were pursuing the same, laudable goal of a Europe without internal border controls by different means (the supra national Community method versus intergovernmental agreements) may have served to exasperate the conflict.

In 1977 the Court of Justice had delivered an opinion on the „Draft Agreement establishing a European laying-up fund for inland waterway vessels“ A Tribunal to settle disputes was proposed under the draft agreement. The Court of Justice noted that its own and the Tribunal’s jurisdiction would be parallel , that conflicts of jurisdiction could not be ruled out a priori , it expressed „certain reservations as regards the compatibility of the structure of the ‚Fund Tribunal‘ with the Treaty‘ . It had been proposed that six judges of the Court of Justice could sit on the Fund Tribunal in order to prevent conflicts between the two from arising. The Court raised the objection that under such a practice, the same judge might hear a case before the Tribunal and its appeal before the Court or vice versa. It noted further that „in extreme cases the Court might find it impossible to assemble a quorum of judges able to give a ruling on a contentious question that had already been before the Fund Tribunal“ . It concluded that under Article 42 of its Statute the judges serving on the Court of Justice should not be called upon to serve on the Fund Tribunal.


Nothing in this opinion could be applied simplistically to the Schengen Convention, but it does belong in the same context. Leaving a detailed comparison of the Draft Agreement and the Schengen Convention to the side, one is left with the clear impression that the Convention covered a larger and more important field of policy than the Draft Agreement.. To date, the Common Transport Policy has not been a high priority . Arguably, the participants in the Schengen para cooperation were stretching the bounds of Article 10 TEC.

The signatories of Schengen avoided some of the above difficulties. They chose to dispense with formal judicial review at the supra national level, but this caused more tension with acquis communautaire.

The absence of independent review allowed a culture of confidentiality to develop and flourish. The Executive Committee decided that „making some documents public would be directly contrary to the objectives set“ . It went on „The following documents shall remain confidential: Annexes 1, 5, 8, 9 and 10 to the Common Consular Instructions, the list of countries subject to the visas requirement, the Common Manual, the SIRENE Manual, …“ . This was an important difference between the methods of legislating that were used to construct the two acquis.


Specific forms of Cooperation in the Treaty of Amsterdam

A „Protocol Integrating the Schengen Acquis into the Framework of the European Union“ was attached to the Treaty of Amsterdam. Article 1 authorised the EU Members save for Denmark, Ireland and the United Kingdom to establish a closer cooperation with the goal of bringing the whole of the Schengen process, including its institutions and its acquis, into the EU. A protocol covering the special status of Ireland and the United Kingdom as well as a separate protocol for Denmark were also attached to the Treaty of Amsterdam.

The institutional arrangements are simple, so long as the three non-participants remained on the outside; throughout the remainder of the protocol, unanimity was defined to mean the twelve participants. The two protocols covering the three non-participants contained a number of discretionary opt-outs and opt-ins that opened the door to tremendous potential complexity . A simple example of this complexity was that depending on the choices of the participants and the non-participants the Council might meet in four different compositions . Professor Kuipper concluded that these arrangements in particular, and the communautarisation of Schengen in general had „probably become too complicated to work properly“ . Kortenberg thought that „the combination of the texts of the two protocols and the provisions on closer cooperation, will involve some difficulties when they are applied“ .

An annex attached to the Schengen Protocol defined its acquis as comprising the Agreement, the Convention, the Accession Protocols, the decisions and declarations of the Executive committee. The most substantial problem for the acquis communautaire were the secret provisions that had not been reviewed by any citizen, journalist, MP, MEP, national judge, nor by the Court of Justice. Professor Curtin has delivered a scathing critique of the Schengen Protocol. She wrote about Article 4 which provides for the integration of the Schengen acquis into the acquis communautaire: „What this seemingly innocuous provision does is to give the status of binding law to decisions adopted by groups of civil servants in such total secrecy that a list does not even publicly exist of all the decisions in question . The General Secretariat of the Council of the European Union published a printed edition of the Schengen acquis on May 1, 1999, the day that it became part of the EU legal system. The Director-General? in charge of Justice and Home Affairs finished his foreword: „I trust that this publication will serve to ensure greater transparency.“ . No claim to completeness was made in the foreword. Nor were even parts of the secret Schengen documents revealed.

Circa 1% of the current acquis were thus tainted by originating as executive orders and administrative decisions that were slipped past the proper legislative process and into the acquis.


Generalised Forms of Cooperation in the Treaty of Amsterdam

Title VII Provisions on Closer Cooperation

Article 43 set out eight conditions that a closer cooperation must respect.

Some rules were put in place to protect the Member States. A majority of the Member States must be founding members of the closer cooperation (d) it must „not affect the competences, rights, obligations and interests“ of the non-participants (f), and it must remain open to all candidate Member States that comply with its basic and secondary decisions (g). Other conditions were intended to protect the EU as a whole, and in its parts. The cooperation must support the objectives and serve the interests of the EU (a), respect the principles of the Treaties and the single institutional framework of the EU (b), „not affect the ‚acquis communautaire‘“and the EU’s secondary legislation (e).

Condition (c) required that closer cooperation be used only as a last resort when the objectives of the Treaties could not be attained using the conventional procedures. Condition (h) stated that the „specific additional criteria“ for Pillars I and III must be fulfilled.



Pillar I

Article 11 of the TEC set out the procedure and conditions for closer cooperation within the framework of the EC.

Paragraph 1 stated that Member States may enter into closer cooperation and use the „institutions, procedures and mechanisms“ of the TEC provided that they respect seven conditions.

Three conditions served to safeguard the EC from being subverted from the inside. The cooperation must remain within the limits of the EC’s powers (d), not concern areas of exclusive EC competence (a), not affect EC „policies, actions or programmes“(b). A pair of conditions cordoned off four sensitive areas of European integration. The cooperation must not discriminate between nationals of Member States nor concern EU citizenship (c), it must not restrict Intra-EU trade or nor distort the conditions of competition (e).

A group of Member States wishing to found a closer cooperation was to proceed as follows. First, they would request a proposal from the Commission, which could refuse to give one with stated reasons. Once they had obtained the proposal, there was to be consultation with the European Parliament. Finally, they required a qualified majority, without any vetoes, in Council (Art. 11.2). If a veto was imposed, it could only be overridden by the Council „meeting in the Composition of Heads of State or Government“ by unanimity.

A Member State wishing to join a closer cooperation at a later date must notify the Council and the Commission. The Commission must give its opinion to the Council on the proposal within three months of notification. Within four months of notification, the Commission would decide on the proposal in principle and also on such „specific arrangements as it may deem necessary“.

All acts and decisions taken within a closer cooperation must conform to the provisions of the Treaties. Exceptions to this rule could be found only in Articles 43, 44 TEU and in Article 11 TEC.

Except for the Council, the Institutions were to participate in the closer cooperation with all their members, regardless of whether they were nationals of a participant or of a non-participant .


Pillar II

The Dutch Presidency drafts for the Treaty of Amsterdam contained provisions for closer cooperation in all three pillars but those for Pillar II were eliminated by the European Council .

The only shadow of closer cooperation was to be found in the rule about positive abstention (Art. 23) , Abstentions were not to be counted as contrary votes. A Member State could go further by declaring its abstention to be positive. If no more than one third of the Member States cast positive abstention votes, the decision is taken. The abstainers were under the obligation of non-interference in the action decided, but they were under no obligation to make any contribution. The majority in turn was to respect the position of the abstainers. The decision taken is considered to be the position of the EU.

The difference between this arrangement and the closer cooperation of the other two Pillars was that here the group of co-operative States had to get a fresh positive abstention in Council each time that it needed a Council decision .

Pillar III

There were only two conditions additional to Articles 43 and 44 TEU that a closer cooperation on Justice and Home Affairs must fulfil. One of them took the place of Article 5 TEC within the TEU framework, where there was (and is) nothing equivalent to that obligation of to cooperate loyally .

The procedure for establishing a closer cooperation was lighter than under Pillar I. The group of Member States wishing to form a closer cooperation would make their request to the Council which forwarded it to the European Parliament and invited the Commission’s opinion. In the absence of a veto, Council decided by qualified majority coming from at least ten Member States. The provisions for the veto were identical with those under Pillar I.

The procedure for joining a closer cooperation that had already been founded resembled that under Pillar I with a few exceptions. The most important differences were as follows. The role of the Commission was reduced from taking decisions to making recommendations. The Counsel could hold an application to join a closer cooperation under Pillar III in „abeyance“ with a qualified majority. In that case it „shall state the reasons for its decision and set a deadline for re-examining it“ .

Pillar III closer cooperation was subject to a number of restrictions. It was not to affect the Schengen Protocol . The powers of the Court under the TEC were to apply with certain exceptions . Title VI of the TEU concerning „Provisions on Police and Judicial Co-operation in Criminal Matters“ applies here unless its provisions are overridden by Articles 43 and 44 TEU.

There was a default mechanism for adopting conventions among some of the Members within the framework of Title VI which could be seen as a modest form of closer cooperation


The non-impact of generalised cooperation on the acquis

We have seen that the operation of generalised cooperation under Pillars I and III took place within the institutional framework of the EU including judicial review by the Court . The TEU made respect for the acquis an express requirement. This implied that subversion of the acquis could not occur so long as the EU as such remained sound. Title VII of the TEU did not provide an inviting target for politicians whose agenda is an ever narrower and/or shallower Union. Much better opportunities were to be found in the fields of the IGC and beyond them in international law.

There is a second reason for thinking that Title VII has done no damage to the acquis. The Treaty of Amsterdam came into force in May 1997 and has remained in force through March 2001 and beyond. During that interval Title VII was never used; no closer cooperations were launched. But no decisions were reached, no actions were taken.


Generalised cooperation in the Treaty of Nice

The IGC of Nice was by far the most transparent to date; much of the preparatory work was published on the www. The group working on closer cooperation focussed on five questions that gave a great deal of insight into the state of affairs . It came down to asking why generalised cooperation had not been tried and how it could be promoted in the future. The question of closer cooperation in Pillar II was re-opened by the Spanish delegation. In short, the issue of closer cooperation was debated seriously.

In the Treaty of Nice a number of changes were made to the provisions on closer cooperation. Some of these changes were more focussed on changing the language of the Treaties than their substance. The concept was renamed „enhanced cooperation“. The functions of the Commission and the Council have been rephrased in the new Article 40(1). The right of a Member State to appeal to the European Council in Art. 40(2) is reworded.

Other changes were quite substantial. Instead of needing a majority of the Member States to start an enhanced cooperation, only eight are needed . It will prove easier to find eight co-operative Member States among circa two dozen than among the current fifteen. The list of conditions for launching an enhanced cooperation grew to ten items. Most of the new text was devoted to protecting the Single Market, trade and competition from any negative effects of enhanced cooperation. The Schengen Protocol received its own protective clause . However, it appeared that the bulk of the new conditions simply restated those of the Amsterdam Treaty more explicitly rather than to impose substantial new restrictions.

On balance, there has been a serious attempt to make generalised cooperation more workable. At the end of February 2001, the European Voice reported that the Commissioners Bolkenstein, Schreyer and Wallström were probing the possibility of slipping through what it aptly called „a treaty unanimity ‚loophole‘“ .


Why generalized cooperation has remained illusive

It might be argued that generalized cooperation has not taken place and therefore has had no impact on the acquis. Such an assessment would be superficial because it would ignore an obvious enigma. Generalized cooperation has been debated during three IGC’s where only questions that the holders of real power consider important get on the agenda. A number of prominent politicians have contributed lengthy statements to the public debate. Much talk and no action: why?

Gaps between rhetoric and behaviour can provide fascinating glimpses at the foundations of societies. A few observations from the point of view of common sense are in order. First, less than a decade has passed since closer cooperation became available in the Maastricht Treaty. That is a short time in EU history. Second, that decade was the most turbulent one in EU history to date. Third, the conditions for a launching a closer cooperation were restrictive. Fourth, Member States were forced to meet such challenges as wars and epidemics while consolidating their budgets; money for implementing innovative ideas was scarce. Fifth, there was a scarcity of appropriately controversial goals for closer cooperation.



Mismatched Profiles

The socio-economic profiles of the Member States are so diverse that it has not been possible to find a subset of more than seven with matching profiles . The results of one statistical analysis of these profiles will be presented . The values of twelve statistical variables (such as exports, GDP, Nobel prizes in 1963-93, etc.) were taken from the World Competitiveness Report for eleven of the EU Members . Then principle component analysis was applied to the twelve data variables in order to consolidate them into summarised variables. Finally, cluster analysis was applied to the summarised variables for the eleven Member States. It was found that there was a natural cluster of seven Members that have compatible socio-economic profiles. They were the Benelux, Denmark, France, Germany, the United Kingdom.


Gulliver Flat on his Back

Conventional wisdom has it that there is strength in unity and safety in numbers. If these truths were universal, it would be strange that no hard core of Member States has never even attempted to seize control of the EU. The mathematical theory of the n-person non-cooperative games predicts just this seemingly ethical behaviour . An international or supra national organisation is a good example of such a game where there is regulated competition among a group of players. If the strongest among n players is stronger than all his rivals taken together, he will win, as common sense predicts. If the strongest player is weaker than all his rivals taken together, he will lose because their only hope of winning lies in eliminating him at the outset. The continued presence of a unanimity requirement in the Treaties ensures that no one Member can ever outweigh the others taken together.

This Gulliver effect has been observed in OPEC and NATO. Although Saudi Arabia was the strongest OPEC-Member; it was forced to bear far more than its share of the cuts in oil exports . The USA was the strongest NATO-Member and bore a disproportionately high share of the collective burdens . A third example concerns the EU and its strongest Member. Germany contributes most to the funds that are redistributed by the EU while seeing circa 22 million of its nationals disenfranchised as far as QMV in Counsel is concerned.

The three examples given above are familiar and politicians who have won the competition for national power; they can easily infer that it is better remain among the fourteen Lilliputians than to be pinioned down by them. This is another motive behind the preference for specific cooperations over generalized ones; the well founded hope that they will be seen as less provocative by the non-participants. The better a generalized cooperation develops, the more it will be seen as a single, powerful entity that needs to be neutralised.


Summary

The proto cooperations that were organised before the beginnings of the present integration have become part of the acquis.

Schengen harmed the acquis both as a para and as a specific cooperation. One lesson is that when a para cooperation joins the EU by being transformed into a specific cooperation, it should be subjected to the requirement of fulfilling the acquis, just as an acceeding state must do.

Some of the negative connotations of specific and generalized cooperation are an effect of their context; they were attempted only after the Community method failed to produce satisfactory results due to a lack of consensus. These cooperations were undertaken in a atmosphere already tinged with suspicion and perhaps hostility.

Many authors have commented critically on the growth in complexity that the various forma of cooperation have caused. The first answer to this objection is that this part of EU law is no more complex than others (the CAP, Article 251). The second answer is that only a small number of specialists confront this complexity, and they are well compensated for their work. Finally, there are ways to deal with complexity. .

Their elusiveness in practical politics is understandable. The best guess about the motives of the negotiators and drafters of these provisions has been made by Kortenberg who wrote of „the fear that the existence of a long-term heterogeneity between the Member States after enlargement would paralyse the development of the Union“ . Following this view, one concludes that a decisive assessment of the impact of generalized cooperation on the acquis will become possible two decades after the first wave of enlargement has been completed.

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