Enhanced co-operation within the European Union - flexibility, in short - refers to activities undertaken by groups of states smaller than the whole membership, using treaty institutions and laws. It was written into the Treaty of Amsterdam in 1997 to cater for the likelihood that in an EU of potentially double its existing size not all member-states would be willing or able to co-operate in all spheres.
The Treaty of Nice amends those rules in three principal ways. It removes the veto that would allow any one state prevent such an initiative. It stipulates that at least eight states must be involved (a majority now, but not after enlargement). And it streamlines and strengthens the rules and conditions applying by emphasising that flexibility must be an instrument of integration, not exclusion, and remain open to all member-states that want to become involved.
Two major political factors have animated the debate on flexibility. First, it was widely recognised that such schemes are made likely by the uneven development of existing and prospective EU members. So, a choice has to be made between having flexibility develop outside or inside the treaty framework. An example would be the Schengen scheme on cross-border movements, which started outside and has now been incorporated within the treaties. It was conceded by states uneasy about the possibly divisive potential (Ireland included) that it would be far preferable to have enhanced co-operation develop within the treaty so as to apply common legal rules.
The second major concern can be described as a choice between a multi-speed system and a multi-tiered one. Multiple speeds would see some states going ahead with co-operative ventures on the understanding that others would join later if they are willing and able (the euro is a good example). A multi-tiered system would be more selective in its membership and more divisive in its effects.
The negotiations at Amsterdam and Nice might be described as an effort to ensure that flexibility is defined by multiple speeds rather than multiple tiers. While the removal of the veto and the stipulation that at least eight states must be involved makes it easier to apply, stronger operational rules give more powers to the European Commission to monitor and approve such schemes. They must be consistent with the EU's objectives, operate only within the limits of its powers, be used only as a last resort and cannot apply to common policies within the exclusive competence of the EU.
Enhanced co-operation must be "open to all member-states", with as many as possible encouraged to take part.
That means flexibility will not be used in the single market, the Common Agricultural Policy, competition policy or economic and social cohesion, which account for most of the EU's activity. A Commission discussion paper lists a wide variety of areas where flexibility might in future be applied, including border controls, macroeconomic management, tax, employment and social policy, education, culture, consumer protection, environment, industry and overseas development co-operation. While flexibility may now be used in the EU's common foreign and security policy, the treaty says "it shall not relate to matters having military or defence implications".
It remains to be seen whether flexibility schemes do in fact develop as extensively as implied by this list. That will be determined by the political context of European integration in the years to come. Enhanced co-operation grew in prominence as some states became frustrated by unanimity rules preventing certain schemes going ahead. The more extensively qualified majority voting applies, the less that may be necessary. Likewise, the fact that the rules allow for opt-outs means recalcitrant states have less need to block such schemes.
The most important factor will be the future political shape of European integration, to be decided over the next three years, culminating in the 2004 inter-governmental conference. Flexibility has become part of this big political debate in recent years.
Schematically, four models have been suggested as to the desirable destiny of the EU. An inter-governmental model would see enlargement accompanied by minimal further political integration, allowing member-states to pick and choose from a menu of possible co-operations. It would institutionalise flexibility, but there would be so little extra political glue to hold the system together that it would be in constant danger of collapse.
A more integrated model canvassed by several French leaders would see a system of multiple integrations, in which a core group of states would give leadership and accumulate power and influence by participating in most or all of these activities. Under the Nice Treaty such enhanced co-operation would have to remain open to all member-states. But a preference for inter-governmental methods would tend to privilege the larger states.
Jacques Delors, Joschka Fischer and yesterday Lionel Jospin, have pioneered discussion of a "federation of nation-states", to be distinguished from a full federal model, currently espoused by the German Chancellor, Gerhard Schr÷der. The Delors/Fischer proposals set out to take full account of the historical and political diversity of nation-states in Europe and the need to find ways to combine them in an organised fashion with the common European interest. Precisely how this should be done - by centralising or decentralising decision-making and making the system more democratic - forms a large part of the political debate on what is an unprecedented project.
Flexibility could be used as a transitional stage or route to the desired outcome.
The full federal model is espoused mainly by German and Belgian leaders and would best approximate to the state or superstate stereotype of the EU. Flexibility would also be a transitional stage in this proposal.
Considerations of efficiency and political power are linked in these debates about the future shape of the European Union. Flexibility is a bridge between them, a mechanism to enable groups of states to pioneer new forms of co-operation in a much more diverse and larger entity. That is the efficiency argument in its favour. But there have long been suspicions that this can mask a new power politics within a core group in a larger Union - and this inspired the negotiations on the rules that must apply to its use.
They have limited its application and insist on accessibility and openness to all member-states as key characteristics of the new regime. But another distinction, between those willing and those able to participate in schemes of enhanced co-operation is also relevant.
Ability and resources are linked. Running through current debates on enlargement are sharp disagreements over its costs and who should bear them. The main governing party in Germany, the SPD, proposes to renationalise the Common Agricultural Policy and EU structural policies so as to reduce Germany's net contribution. Spain is currently engaged in a stand-off to preserve its share of transfers after enlargement.
Ireland has much in common historically and politically with the candidate states, most of which are small, having achieved independence after the first World War from imperial powers, before becoming engulfed in fascism and Stalinism. They look to Ireland as a model for catch-up development and the preservation and cultivation of identity in a more interdependent world.
Ireland should be to the fore in ensuring the resources are there to enable these new states to participate fully in the new EU system, including by a willingness to help pay for it. This would be the most effective way to ensure the new multi-speed provisions for flexibility do not evolve, intentionally or unintentionally, into a two-tier system. There will be much to gain in terms of a more prosperous, stable and equitable continent. But that will involve choosing carefully among the different models on offer in coming years and being well prepared for these debates to decide what shape and balance best suit Irish interests.
