The future path of differentiation will not be dominated by one single model. We are rather likely to witness the application of many and diverse forms of flexible integration. One can conceptually distinguish between the following six: (1) creation of a new supranational Union; (2) cooperation via established instruments and procedures; (3) intergovernmental cooperation outside the EU; (4) differentiation through opt-outs; (5) affiliation beneath full membership; (6) negative differentiation through withdrawal.

The creation of a new supranational Union – with an autonomous institutional structure and an independent set of legal norms – is neither advisable nor realistic. It is undesirable because the establishment of such a new entity can lead to a division of Europe into two opposing camps. It is unrealistic because (i) the EU is far from reaching a point at which diverging national positions concerning the future of Europe can only be resolved through the establishment of a new Union, and because (ii) even in the most integration-friendly substantial countries there is currently hardly any readiness to jump into the deep and to further pool national competences in the framework of a new Union.

If politically feasible and legally possible, differentiation should be organized inside the Union. Flexible cooperation within the EU framework (i) respects and benefits from the Union’s single institutional framework, (ii) preserves the supranational powers and composition of the Commission, the European Parliament and the European courts, (iii) limits the anarchic and uncontrolled use of flexibility, (iv) guarantees a high level of calculability due to the existence of clear-cut rules concerning the inception, the functioning and the widening of differentiated cooperation, (v) is characterized by a high degree of openness, (vi) ensures a high level of democratic legitimacy through the involvement of the European Parliament and national parliaments, (vii) enables the continuous development of the EU’s acquis in line with the requirements of the EU Treaties, and most importantly (viii) reduces the overall risk of a confrontational split between the “outs” and the “ins”.

Differentiated cooperation inside the EU framework should not follow a single master plan with a predefined idea of Europe’s finalité. Applying the instruments of differentiation to create some sort of a federally organized “United States of Europe” (Verhofstadt) might create suspicions and fears among Eurosceptics and within the new and smaller member states, and in return limit the chances that the instruments of differentiation are constructively employed in practice. • Differentiated cooperation within the EU should follow the concept of functionalpragmatic differentiation, which adheres to a functional case-by-case approach aiming to overcome specific blockades. In the years ahead greater use should be made of the various instruments of differentiated integration laid down in the EU Treaties, in order to reduce the widespread scepticism concerning further differentiation and to limit the necessity for extra-EU cooperation. It will be particularly important that EU institutions and member states become familiar with the limits and potentials of the differentiation instrument of enhanced cooperation.

Closer cooperation outside the EU bears a number of potential risks. However, in some cases it might be better to make a step forward outside the Union instead of waiting indefinitely for a small step inside the EU. Cooperation outside the EU should follow the concept of an Intergovernmental Avantgarde, which is open to all member states and aims to integrate the legal norms adopted and the cooperation initiated outside the EU into the Union at the soonest possible moment. The recent case of the Treaty of Prüm proved that the chances to incorporate a legal and political acquis into the EU framework are higher, if the participating states keep the “outs” constantly informed and if key EU states actively promote a quick incorporation. • One should not demonize the allocation of opt-outs to a small number of member states for various reasons: (i) The granting of opt-outs might be the only way to overcome the opposition of certain EU members towards a further deepening. (ii) Even a radical instrument such as an opt-out can result in integrationist dynamics throughout the Union, as the widespread use of the opt-in by the UK and Ireland in the area of Justice and Home Affairs or the possibility of a removal of certain optouts in Denmark have shown. (iii) The allocation of opt-outs preserves the EU’s single institutional framework and does not lead to the creation of new bodies outside the EU. (iv) The institutional and political affiliation of the opt-out countries limits the danger of a divide between the “outs” and the rest of the Union.

Concepts aiming to affiliate neighbouring European countries beneath the level of full membership – Association Plus, Partial Membership, Limited Membership – should not exclude the perspective of joining the EU club. The possibility of joining the Union should in principle remain open to all European countries, even if the prospect of membership in many cases might still be very distant or even indefinite. An attempt to once and for all define the borders of Europe would be politically 11 unwise. However, at the same time, the EU should avoid any enlargement automatism and for some time neither directly nor indirectly grant any further accession offers.

The voluntary withdrawal of less integration friendly countries can enable a further deepening of EU integration. However, this form of “negative differentiation” can weaken or even destabilize the EU, if (i) the number of countries exiting the Union is large, (ii) the withdrawing states have played a significant role in a certain policy area, and (iii) if the EU and the withdrawing state(s) fail to constructively redefine their relationship. In order to continue to benefit from the advantages of the internal market and from a functioning inter-institutional structure, the withdrawing state(s) could decide to join the European Economic Area (EEA). Alternatively, a withdrawing state could also become a “partial” member of the EU in one or more policy areas, in case both sides consider this to be in their interest.

The application of very diverse forms of differentiation inside and outside the EU framework will require the elaboration of a “narrative of differentiated Integration” and the setting up of an “informal differentiation board”. The “narrative of differentiated integration” is required in order to explain to the wider European public in a comprehensible fashion the purpose and reasoning behind flexible integration. The “informal differentiation board”, including the Commission and elected representatives of the states participating in the various differentiation projects, will be required to coordinate the activities of the various differentiation projects inside and outside the EU framework. The board should not be limited to an exclusive circle of countries forming some sort of a directoire, but rather represent a rotating mixture of EU members including small and big, new and old, northern and southern, eastern and western, euro and non-euro countries.

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by Janis A. Emmanouilidis

Hellenic Foundation for European and Foreign Policy (ELIAMEP)

June 2008