Enhanced cooperation instead of a qualified majority vote on the quota for the relocation of refugees
How a rarely used treaty provision could be applied in the current refugee crisis
A rarely used EU treaty provision could be used in the current refugee crisis: Article 20 TEU provides the legal basis for “enhanced cooperation” in case at least nine Member States are willing to cooperate beyond the current level of EU integration on a specific policy issue. Some MEPs have suggested this, but not received significant public attention. Such cooperation can take place within the EU framework and with the participation of EU institutions.
At the time of writing, the 28 EU Member States have failed to reach an agreement on the Commission plan for a mandatory quota to relocate 120.000 refugees. On 14 September 2015 the Justice and Home Affairs Council only endorsed an earlier plan for the relocation of 40.000 refugees to Member States on a voluntary basis. The most likely outcome of the ongoing negotiations is “no agreement” or another voluntary mechanism. As an alternative strategy, only pushing through the proposal by a qualified majority vote is currently being discussed.
In this blog post Valentin Kreilinger argues that the situation in the refugee crisis in general – and with respect to the Commission´s plan for a mandatory quota for the relocation of refugees in particular – is a case where enhanced cooperation (Article 20 TEU) could be used to overcome the current deadlock. The refugee crisis requires thinking “out of the box” in order to move forward with the quota for the relocation of refugees. There are, however, legal and political obstacles that cannot be ignored.
Introduction: Thinking “out of the box” in the case of the proposed quota for the relocation of refugees
In the refugee crisis, the Commission’s plan of a quota for the relocation of refugees is controversial: Member States have been unable to agree on a common position. Some Member States are opposed to the very idea; others are only reluctant to have a mandatory quota. Although support for the plan seems to be rising, it seems unlikely to get a mandatory relocation mechanism by consensus. After the Justice and Home Affairs Council of 14 September the Luxembourg Council Presidency, supported by “a large majority” of Member States, published “Presidency Conclusions” according to which the Council agreed “in principle” on the proposed emergency relocation of 120.000 refugees.
Apparently, the Council Presidency considers “pushing the proposal through over Eastern European objections using a qualified-majority vote rather than seeking unanimity”  at a new meeting of the Justice and Home Affairs Council. It is indeed legally possible to vote by qualified majority in the Council and considering this option would put pressure on the quota opponents, but could refugees really be relocated to a Member State whose government rejected the quota?
Enhanced cooperation would take such doubts into account since it would only bind the Member States participating in it. This blog post puts forward a legal and political analysis of the opportunities and constraints that would have to be considered when using enhanced cooperation for the relocation quota. Methodologically, the paper combines approaches from law and political science: It analyses the treaty provisions as well as case law from the Court of Justice of the European Union (CJEU) on enhanced cooperation – and it examines the preferences of relevant actors in the negotiations (relying on the standard model of EU legislative politics) as well as political concerns related to pursuing this path of differentiated integration.
Why could Article 20 TEU offer a possibility to overcome the current deadlock?
Treaty provisions for enhanced cooperation
A set of provisions called “enhanced cooperation” was introduced in the Treaty of Amsterdam and designed in order to offer a solution to cases, where some Member States want to cooperate beyond the status quo, but other countries do not wish to join them. According to the treaty, Member States “which wish to establish enhanced cooperation between themselves within the framework of the Union’s non-exclusive competences” are authorised to use the EU framework and its institutions, if their actions “further the objectives of the Union, protect its interests and reinforce its integration process.”
The treaty contains a number of safeguards for non-participating Member States that must be fulfilled:
- Any enhanced cooperation shall “comply with the Treaties and Union law”, “not undermine the internal market or economic, social and territorial cohesion”, “not constitute a barrier to or discrimination in trade between Member States, nor shall it distort competition between them” and it “shall respect the competences, rights and obligations of those Member States which do not participate in it”.
- In addition to that, the treaty says that it shall only be used “as a last resort, when it has [been] established [by the Council] that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it.” The trigger is indeed still “rather cumbersome”.
- Enhanced cooperation shall also be open and transparent: “All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote” and “[s]uch cooperation shall be open at any time to all Member States”.
“Expenditure […] other than administrative costs entailed for the institutions, shall be borne by the participating Member States, unless all members of the Council, acting unanimously after consulting the European Parliament, decide otherwise.”
Box 1: Conditions for launching an enhanced cooperation
- At least nine EU Member States must participate.
- It must not be a field where the Union has exclusive competence.
- The measure must comply with other EU law.
- It must not undermine the internal market or economic or social cohesion; in particular, it must not constitute a barrier to or discrimination in trade between Member States or distort competition between them.
- It must respect the rights competences and obligations of other Member States.
- The Commission must put forward a proposal.
- The Parliament must give consent.
- Non-participating states participate (but do not vote) in the deliberations.
- The measure will not be part of the acquis communautaire.
Author’s compilation. Information retrieved from Damian Chalmers et al., European Union Law. Cases and Materials, Cambridge University Press, 2010: 114.
It is possibly the wide range of procedural and political preconditions that may explain why enhanced cooperation has not been used at all before the Lisbon Treaty and not extensively since then. The constitutional function of enhanced cooperation, however, is “to create a pathway through which a ‘vanguard group’ of states can move ahead in achieving an ‘ever closer Union’ in new policy areas.” This would mean that enhanced cooperation on a mandatory quota for the relocation of refugees should be seen as an avant-garde which could later be joined by Member States that are not yet willing or ready to house refugees.
Dealing with actors’ diverging preferences in the negotiations on a quota
At the Justice and Home Affairs Council of 14 September 2015, “[d]etermined opposition from a core of ex-Communist eastern states blocked efforts by Germany and France to secure [an] agreement”.  The five Member States that have been publicly the most opposed to accepting a mandatory quota system are Hungary, Slovakia, the Czech Republic, Poland and Romania.
The standard model of EU legislative politics developed can be applied to the case of the mandatory quota for the relocation of refugees: On the single dimension of legislative bargaining (between “more” or “less” European integration, i.e. a “mandatory quota” or “no quota”) those five countries are the least integrationist countries (all 28 EU Member States are aligned at different points along this dimension and want an outcome as close as possible to their position); Commission and Parliament are more pro-integrationist than (most) Member States. Since the five Member States that are publicly most opposed to the mandatory quota do not carry enough voting weight to form a blocking minority, a decision could be taken by qualified majority in the Council. The Commission´s plan could then be expected to run smoothly through the legislative process under the Ordinary Legislative Procedure.
However, this approach would be risky. It is difficult to imagine refugees being relocated to a Member State whose government rejected the quota. In the EU reaction to the refugee crisis, intergovernmentalist tendencies have prevailed and calls for unity, solidarity and the European common good have fallen unheeded. From that point of view, pursuing the path of enhanced cooperation would be beneficial in this situation, since it allows for Member States to choose a level of integration that corresponds to their preferences.
What are possible legal and political obstacles to pursuing enhanced cooperation?
Possible legal question marks: “reasonable” time to find a consensus, refugee protection as a common good, recent CJEU case law
For enhanced cooperation to be legal, the Member States must allow a “reasonable period” for the proposal to be adopted in the full Council of Ministers. Neither the treaty nor the CJEU have quantitatively defined this, but the time period since the Commission put its refugee relocation plan on the table in June 2015 does not seem long enough. In the proposals to launch an enhanced cooperation both the Commission and the Council itself tried to build a consensus among all Member States for longer time periods (i.e. at least twelve months), as the examples of divorce law, patent law and the financial transaction tax show. Member States and EU institutions could, however, take the current refugee crisis as an emergency situation and agree to take swift action and speed up the decision-making process.
However, enhanced cooperation is really a “last resort mechanism” which was designed to be used when it is impossible to adopt a measure. From a legal point of view, the desire not to disappoint the minority is not a good reason to use enhanced cooperation as a last resort. Since the mandatory quota can be adopted by a qualified majority vote in the Council, such a vote should be taken.
In addition, all EU Member States are subject to the same human rights obligations under the refugee conventions. Pursuing enhanced cooperation might give the impression that refugee protection is not (or no longer) a common responsibility. Enhanced cooperation on a mandatory quota for the relocation of refugees would also establish a club with the “good” of improved refugee protection which could ultimately lead to uncertainties about “how [EU] institutions should act and decide when objectives and tasks for the fulfilment of ‘club goods’ conflict with steps needed to safeguard the policies of the Union as a whole.”
Interestingly, however, recent case law from the CJEU on two enhanced cooperation cases (patent law and the financial transaction tax) was quite deferential to the applicants. With respect to the mandatory refugee quota, one can draw two conclusions: First, enhanced cooperation in that area would lack an internal market component that had increased the probability of legal challenges in the past. Second, it is difficult to see who would raise the litigation in the first place (without organized interest pushing for it). The Member States remaining outside the enhanced cooperation on the quota would have sought their outsider-status and not participating in sharing refugees. Contrary to patent law and financial transaction tax they would, prima facie, not have to fear suffering from negative externalities.
Political reluctance to use enhanced cooperation
The provision for enhanced cooperation has been in the EU treaties since 1999 (Amsterdam Treaty). The treaty revisions of Nice and Lisbon changed it slightly, but only in 2010 the European Commission made the first two proposals for launching enhanced cooperation on the basis of Article 20 TEU: First, on 24 March 2010 the Commission proposed the enhanced cooperation on the law applicable to divorce and legal separation in response to a request by nine Member States. Second, on 14 December 2010 the Commission proposed to launch enhanced cooperation in the area of unitary patent protection at the request of twelve Member States.
Table 1: The evolution of the “enhanced cooperation” provision
|Launch of enhanced cooperation||Unanimity||QMV (including the implementation of CFSP decisions, unanimity elsewhere in CFSP)||QMV (but unanimity for the entire CFSP)|
|“Emergency brake” procedure||A Member State can request to refer the authorisation of an enhanced cooperation to the European Council.||[Removed]|
|Possibility to switch from unanimity to QMV and from a special legislative procedure to the ordinary legislative procedure|
|Minimum number of participants||8 Member States||8 Member States||9 Member States|
|Role of the European Parliament||Consent in cases where co-decision applies (otherwise consultation)||Consent in all cases|
Author’s compilation. Information retrieved from: Jean-Claude Piris, The Lisbon Treaty, A Legal and Political Analysis, Cambridge University Press, 2010: 89-90; Articles 27A-27E, 40, 40A, 43-45 former TEU; Articles 11 and 11A TEC; Articles 20 TEU and 326-334 TFEU.
The process to launch an enhanced cooperation has been clearly defined by the treaties, as the relevant provision of the Lisbon Treaty shows:
“Member States which wish to establish enhanced cooperation between themselves in one of the areas covered by the Treaties […] shall address a request to the Commission, specifying the scope and objectives of the enhanced cooperation proposed. The Commission 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.
Authorisation to proceed with the enhanced cooperation […] shall be granted by the Council, on a proposal from the Commission and after obtaining the consent of the European Parliament.”
Consequently, the Commission, as the guardian of the Treaties, is under no obligation to follow a request by a group of Member States to establish enhanced cooperation. It could instead ask the Council to vote on its proposal and thus try to make sure that the Treaties are respected. Another question is what would follow from such a clash of institutions.
In a broader perspective, enhanced cooperation leads to bigger divergences between core and periphery in the EU, which may explain the political reluctance to pursue this path. From time to time, however, calls and commitments for using enhanced cooperation have been put forward with respect to different issues and policy areas. In the current refugee crisis, despite the lack of unity and solidarity among Member States, concrete institutional responses to deal with this problem have not been able to gather public attention.
The European Parliament would be an institution that should articulate its position about what should be done if Member States do not reach an agreement, but its resolution on migration and refugees in Europe (adopted on 10 September 2015) only urges Member States to reach an agreement.
However, the resolution that was tabled by the leftist GUE/NGL group (and voted down during the plenary session) mentions enhanced cooperation: It “urges all Member States and all the European institutions to take immediate action in response to the crisis situation […]; calls on the Commission and the Council, if a united position along these lines cannot be agreed in the Council, to establish a coalition of Member States in order to advance towards a more progressive and humane EU refugee and migration policy, and calls for significant funding to be allocated in this area as part of such enhanced cooperation”.
For legal and political reasons, EU institutions and willing Member States have been reluctant about pursuing enhanced cooperation. The legal question marks and political hesitations that the previous sections discussed, however, do not seem to be able to impede using enhanced cooperation in the refugee crisis. Thus decision-makers should consider the opportunities (and constraints) that would come along with a more ambitious mandatory refugee quota mechanism in which fewer Member States (but at least nine) would participate. It is difficult to say how large the group of countries launching this enhanced cooperation could be. Obviously, it would be important to have EU Member States included that are transit countries for refugees. The proposal for this enhanced cooperation might also serve as a bargaining chip in the on-going negotiations.
Conclusion: A bargaining chip in order to move forward with the quota for the relocation of refugees
Instead of unilateral actions of Member States that lead to the temporary reintroduction of border controls or to suspending rail services between Member States, the EU institutions (notably Commission and Parliament) and those Member States that are in favour of a mandatory quota for the relocation of refugees need to develop a sound bargaining strategy based on the basic rule of working together for a common solution. Proposing to use enhanced cooperation would be a bargaining chip that could send a dynamic signal to “unwilling” Member States: In the earlier cases of enhanced cooperation, the groups of Member States that had initially requested enhanced cooperation have been growing over time.
In the short term, a voluntary quota is better than ad-hoc relocation on a bilateral basis. But the EU must have the ambition to find a viable long-term solution. If a permanent relocation quota is only possible in an enhanced cooperation, EU institutions should not hesitate to embark on the proposed path despite possible legal uncertainties and despite political reluctance.
This blog post assessed the chances for a more ambitious mechanism with fewer participating EU Member States (based on “enhanced cooperation” following Article 20 TEU) from a legal and political perspective. It argued that such a mechanism would be a more adequate response to the refugee crisis than no mechanism or a badly designed voluntary mechanism. Beyond the technical discussion in this paper, one should, however, not forget that this human crisis cannot be solved by using an arcane treaty provision.
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Chalmers, Damian; Davies, Gareth; Giorgio, Monti, European Union Law. Cases and Materials, Cambridge University Press, 2010.
Council of the European Union, Presidency Conclusions following the Justice and Home Affairs Council, 14 September 2015.
Court of Justice of the European Union, Press Release No 49/15, Luxembourg, 5 May 2015.
Court of Justice of the European Union, Press Release No 65/14, Luxembourg, 30 April 2014.
Craig, Paul, The Lisbon Treaty: Law, Politics, and Treaty Reform. Oxford University Press, 2010.
Dawson, Mark; De Witte, Floris, “Self-Determination in the Constitutional Future of the EU”, European Law Journal 21(3), 2015: 371-383.
De la Serre, Francoise; Wallace, Helen, Flexibility and Enhanced Cooperation in the European Union: Placebo rather than Panacea?, Notre Europe, 1997.
Ducourtieux, Cécile; Stroobants, Jean-Pierre, Nouveau fiasco européen sur l’accueil des réfugiés, Le Monde, 15 September 2015.
EUobserver, EU asylum talks end in weak compromise, 15 September 2015.
EurActiv.com, EU fails to agree on migrant redistribution system, 15 September 2015.
European Commission, A first in EU history: enhanced cooperation to help international couples is in force, Press Release, 5 August 2010, IP/10/1035.
European Parliament, Minutes of the plenary session, 10 September 2015, 8.4. Migration and refugees in Europe.
European Parliament, Motion for a resolution on migration and the situation of refugees (on behalf of the GUE/NGL Group), 7 September 2015, B8-0835/2015 (2015/2833(RSP)).
European Parliament, Resolution on migration and refugees in Europe, 10 September 2015, P8_TA-PROV(2015)0317 (2015/2833(RSP)).
Fabbrini, Federico, “Enhanced cooperation under scrutiny: Revisiting the law and practice of multi-speed integration in light of the first involvement of the EU judiciary”, Legal Issues of Economic Integration 40(3), 2013: 197-224.
Fabbrini, Federico, The enhanced cooperation procedure: a study in multispeed integration, Centro Studi sul Federalismo Research Paper, 2012.
Frankfurter Rundschau, “So funktioniert Solidarität nicht”, 18 September 2015.
Hix, Simon; Høyland, Bjørn, The Political System of the European Union, Palgrave Macmillan, 2011: 68-71.
Koenig, Nicole, A differentiated view of differentiated integration, Policy Paper n°140, Jacques Delors Institute, July 2015.
Leuffen, Dirk; Rittberger, Berthold; Schimmelfennig, Frank, Differentiated Integration: Explaining Variation in the European Union, Palgrave Macmillan, 2013.
Nuspliger, Niklaus, Kein Konsens am EU-Krisen-Treffen, Neue Zürcher Zeitung, 16 September 2015.
Piris, Jean-Claude, The Lisbon Treaty. A Legal and Political Analysis, Cambridge University Press, 2010.
Politico Europe, EU leaders seek emergency summit on refugees, 15 September 2015.
The Wall Street Journal, Prague Summit Fails to Break EU Migrant Deadlock, 11 September 2015.
Treaty on European Union and the Treaty on the Functioning the European Union, (consolidated versions), Official Journal of the European Union, C 83/283, 30 March 2010.
Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, 1 March 2012.
 I am very grateful for helpful comments and input by Anna auf dem Brinke, Mark Dawson, Federico Fabbrini, Diane Fromage and Nicole Koenig. All errors that remain are my own.
 Council of the European Union, Presidency Conclusions following the Justice and Home Affairs Council, 14 September 2015. These conclusions are not “Council Conclusions”, but only the conclusions of the presidency.
 Niklaus Nuspliger, Kein Konsens am EU-Krisen-Treffen, Neue Zürcher Zeitung, 16 September 2015: 1. Cécile Ducourtieux; Jean-Pierre Stroobants, Nouveau fiasco européen sur l’accueil des réfugiés, Le Monde, 15 September 2015.
 See e.g. Paul Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform. Oxford University Press, 2010: 437-443; see also Jean-Claude Piris, The Lisbon Treaty. A Legal and Political Analysis, Cambridge University Press 2010: 89-90.
 Article 20 (1) TEU.
 See Nicole Koenig, A differentiated view of differentiated integration, Policy Paper n°140, Jacques Delors Institute, July 2015: 7; see also Federico Fabbrini, The enhanced cooperation procedure: a study in multispeed integration, Centro Studi sul Federalismo Research Paper, 2012.
 Article 326 TFEU.
 Article 327 TFEU.
 Article 20 (2) TEU.
 Francoise de la Serre; Helen Wallace, Flexibility and Enhanced Cooperation in the European Union: Placebo rather than Panacea? Notre Europe, 1997: 22.
 Article 330 TFEU.
 Article 20 (1) TEU.
 Article 332 TFEU.
 See Nicole Koenig, A differentiated view of differentiated integration, Policy Paper n°140, Jacques Delors Institute, July 2015: 7.
 Federico Fabbrini, “Enhanced cooperation under scrutiny: Revisiting the law and practice of multi-speed integration in light of the first involvement of the EU judiciary”, Legal Issues of Economic Integration 40(3), 2013: 197-224, here: 204.
 The Schengen agreement, although of inter-governmental nature, has often been considered as a source of inspiration for enhanced cooperation. The initial avant-garde of participating countries has expanded over time.
 EurActiv.com, EU fails to agree on migrant redistribution system, 15 September 2015.
 The Wall Street Journal, Prague Summit Fails to Break EU Migrant Deadlock, 11 September 2015; EUobserver, EU asylum talks end in weak compromise, 15 September 2015; EurActiv.com, EU fails to agree on migrant redistribution system, 15 September 2015.
 Simon Hix; Bjørn Høyland, The Political System of the European Union, Palgrave Macmillan, 2011: 68-71.
 Dirk Leuffen et al., Differentiated Integration: Explaining Variation in the European Union, Palgrave Macmillan, 2013: 210.
 Article 20 (2) TEU.
 The Commission first proposed EU-wide rules on divorce in 2006. After it had emerged that no consensus was possible – ten Member States asked the Commission in 2008 to issue a proposal, which finally proposed a framework in 2010. See Federico Fabbrini, The enhanced cooperation procedure: a study in multispeed integration, Centro Studi sul Federalismo Research Paper, 2012: 14. See also Dirk Leuffen et al., Differentiated Integration: Explaining Variation in the European Union, Palgrave Macmillan, 2013: 236.
 In 2007 the Commission had published a Communication on improving the patent system in Europe, at the end of 2009 the Council had reached an agreement about the usefulness of a European patent system, but without specifying the language regime. Subsequently, it became clear that Member States would be unable to reach unanimity on the translation arrangements due to opposition from Italy and Spain. Thus in December 2010 the Commission proposed to launch enhanced cooperation. See Dirk Leuffen et al., Differentiated Integration: Explaining Variation in the European Union, Palgrave Macmillan, 2013: 130. See also Federico Fabbrini, The enhanced cooperation procedure: a study in multispeed integration, Centro Studi sul Federalismo Research Paper, 2012: 15-16.
 I am very grateful to Mark Dawson for this point.
 Article 329 (1) TFEU.
 Mark Dawson; Floris De Witte, “Self-Determination in the Constitutional Future of the EU”, European Law Journal 21(3), 2015: 371-383, here: 378.
 E.g. Article 10 TSCG: “[…] the Contracting Parties stand ready to make active use, whenever appropriate and necessary, of measures specific to those Member States whose currency is the euro, as provided for in Article 136 of the Treaty on the Functioning of the European Union, and of enhanced cooperation, as provided for in Article 20 of the Treaty on European Union and in Articles 326 to 334 of the Treaty on the Functioning of the European Union on matters that are essential for the proper functioning of the euro area, without undermining the internal market.“
 European Parliament, Motion for a resolution on migration and the situation of refugees (on behalf of the GUE/NGL Group), 7 September 2015, B8-0835/2015 (2015/2833(RSP)).
 First, on the law applicable to divorce and legal separation, the European Commission proposed the enhanced cooperation in response to a request by nine Member States. Greece was initially part of the plan and later withdrew its request, five additional countries (Germany, Belgium, Latvia, Malta and Portugal) then asked to join, Lithuania joined in May 2012 (Source: European Commission).
Second, the European Commission launched the enhanced cooperation in the area of unitary patent protection at the request of 12 Member States. Subsequently 13 other Member States submitted their request to join it.