Abstract
Regional integration between European Union Member States is a process that will usually result in differentiated integration (i.e., some EU states moving further in integration efforts than others). EU law provides a mechanism for such deeper integration called “enhanced cooperation.” Even though this mechanism has been applied in some cases now, this chapter will show that even where certain EU competences apply, enhanced cooperation is by no means a replacement for so-called inter se or satellite agreements or treaties between EU States but outside of union law and EU integrative structures. Rather, if inclusion of a third country is desired or necessary, enhanced cooperation cannot apply, and there is no other option than to conclude an inter se agreement cum tertiis.
TopBackground
European Union Member States have conferred legislative competences upon the European Union in a number of policy areas as contained in Arts. 3, 4 and 6 of the Treaty on the Functioning of the European Union (TFEU). These competences are either of exclusive (exhaustive list in Art. 3), shared with Member States (non-exhaustive list in Art. 4) or supporting, coordinating or supplementing (exhaustive list in Art. 6) nature. In policy fields where European Union Member States have not conferred any competence, the power to legislate and adopt legally binding acts remains with the Member States and the Union is unable to adopt any measures (so-called principle of conferral, Art. 4 (1), 5 (2) Treaty on European Union (TEU)). That means that in such policy areas, of which there are arguably only a limited number left, such as criminal law, vast fields of fiscal law or investor-state-arbitration, the Member States are free to adopt their own legislation and also conclude international agreements with other States. Such agreements may be entered into with other EU members (inter se agreements, also referred to as satellite agreements (De Witte, 2019, p. 8), possibly establishing EU-internal regional integration, or with third countries outside the Union. It is also always possible for a number of EU States to conclude an agreement with a third country (inter se agreement cum tertiis).
Key Terms in this Chapter
Differentiated Integration: Integration in the context of the EU in which not all Member States participate.
Satellite Treaties: A synonym for inter se agreements.
Inter Se Agreements Cum Tertiis: Aforementioned agreements, additionally involving non-EU Member States.
Inter Se Agreements: Agreements based on public international law, here: between EU Member States.
External Differentiation: Differentiated Integration which also covers third countries.
Schengen: EU area of borderless travel, in which not all EU Member States fully participate in.
Permanent Structured Cooperation (PESCO): An EU instrument providing for closer cooperation of subgroups of EU States in various projects.
Enhanced Cooperation: An EU decision-making instrument used by a subgroup of EU Member States.