Enhanced Cooperation under Scrutiny: Revisiting the Law and Practice of Multi-Speed Integration in Light of the First Involvement of the EU Judiciary

Abstract

The enhanced cooperation procedure has recently acquired a new popularity with EU policy-makers. Yet, the use of enhanced cooperation has also come under scrutiny, with the ECJ being asked to rule for the first time on the matter in the legal challenges brought by Spain and Italy against the decision of the Council to authorize enhanced cooperation for the creation of a unitary patent protection regime. This article examines the Treaty rules on enhanced cooperation and seeks to provide a coherent reconstruction of the function of this procedure in the constitutional system of the EU. As the article argues, an historical and systematic interpretation of positive law suggests that enhanced cooperation is finalized toward multi-speed integration in the EU. As a result, Member States are allowed to resort to this instrument only when they disagree whether to act jointly at the EU level but not when they disagree how to do so. In light of this framework, the article critically examines Spain & Italy v. Council of the EU, dealing with the legality of enhanced cooperation in the creation of a unitary patent and concludes, contrary to the opinion of the AG and the judgment of the ECJ, that Spain and Italy were legally right in challenging the Council decision: despite their unreasonable position from a policy-making perspective, the Council had misused its powers in authorizing an enhanced cooperation in the case.