FLEXIBILITY has become one of the new buzzwords of European integration during negotiation of the Amsterdam Treaty. It refers to provisions for sub-groups of member states to make use of EU institutions in order to proceed faster or into new areas of closer co-operation than others are ready or willing to do.
The treaty includes a new general statement on flexibility and rules on how it will apply. Although the principle is strongly constrained in the text by the overriding need to preserve common objectives and a single institutional framework, it could well be seen in retrospect as one of the most important innovations the treaty has made. This is easier to understand within the political context surrounding it.
Flexibility is already built into the EU. The Maastricht Treaty agreed opt-outs for Britain and Denmark on the basis that they were not willing to be involved in economic and monetary union, defence co-operation or the social chapter.
Membership of EMU itself is conditional on meeting performance criteria.
Looking ahead to enlargement and a much more diverse membership, it is anticipated that such provisions will be increasingly needed. But many governments came to suspect that what was originally a Franco-German initiative contained a hidden agenda to legitimise a two-tier membership arrangement, which would make for a new power politics in the core group and disintegration of the whole in the longer term.
The new provisions are designed to minimise that possibility.
Thus, a general clause says that member states may make use of the EU's institutions, procedures and mechanisms to establish closer co-operation, -provided that eight conditions are met.
Such co-operation should be "aimed at furthering the objectives of the Union and at protecting and serving its interests"; it should respect "the principles of the treaties and the single institutional framework of the Union"; it should be used only as a last resort and concern "at least a majority" of members; it does not affect the EU's accumulated legislation, or the "competences, rights, obligations and interests" of non-participant states; it should be open to all member states and allow them "to become parties to the co-operation at any time, provided that they comply with the basic decision and with the decisions taken within that framework".
These conditions conclude with a reference to the procedures that should be followed in each of the three decision-making pillars of the EU.
In the first, supra-national, pillar, five further conditions are laid down to govern flexible co-operation. It "should not concern areas which fall within the exclusive competence of the Community"; it does not affect Community policies, actions or programmes; does not concern citizenship of the EU or discriminate between nationals of its member states; it remains within the limits of the treaty powers; and it "does not constitute a discrimination or a restriction of trade" or "distort the conditions of competition" between the member states.
The trigger mechanism for proceeding to flexible co-operation is to be qualified majority voting of all the member states in the first and second pillars or areas of decision-making. But it is subject to a very important new principle written into the treaty for the first time. Known as the "emergency brake" principle, this will allow any member state to prevent such a vote "for important and stated reasons of national policy".
Thus, majority voting in this area is constrained by what is effectively a veto power. The phrase was used to apply to the second, foreign policy pillar of decision-making. It was suggested by Mr Tony Blair that it should apply in the first, Community, pillar as well. He got Dr Helmut Kohl's support for this and it was agreed at the last minute.
Unanimous voting will, however, continue to apply in the third, inter-governmental, pillar of decision-making so far as flexible co-operation is concerned. But since the Schengen scheme for flexible co-operation on movement of peoples is inserted here by the treaty, with its own elaborated rules, it can be seen that this inconsistency is minimised. It is, nonetheless, a good example of the inelegance and unnecessary complexity introduced to the treaty by the last-minute, late-night, negotiating method.
Once flexible co-operation is agreed, qualified majority voting of participant states will apply, and costs will be borne by them.
There is much in this new agenda of flexible co-operation that could be filled out in years to come. It remains to be seen whether the careful constraints built into the new treaty will indeed safeguard the EU's common objectives and single institutional system.
