Enhanced cooperation in the constitution criminal Europe and the issue of Schengen

Abstract

The study begins by reflecting on some of the aspects of the flexibility principle that serve a historical precedent to the institutionalisation of “closer cooperation” enshrined in the Treaty of Amsterdam, thus enabling us to talk about Europe “à lacarte”,“two-speed” Europe or “fortress Europe”. This article examines the approachto this issue adopted in the European Constitution, exploring its limitations andconditioning factors and stressing that the constitutional dimension is a “last resource”, employed whenever the Council of Ministers perceives an impasse that isvirtually impossible to overcome, although those States not included in this group of legitimised States may be entitled to request closer cooperation at a later date. It highlights that any right thus created neither constitutes a European Union heritagenor places any obligation on subsequent candidates. In a research exercise on potentialcloser cooperation, we perform an inventory of texts already adopted and of EU objectives, focusing on the mutual recognition of rulings and other resolutions. The study also points out that closer cooperation cannot be applied to exclusive competences, where as it can be applied to judicial cooperation as a shared competence.The study closes with an examination of the Schengen information system, following its incorporation as a heritage from the Treaty of Amsterdam and its impacton the 1990 Convention, together with analysis of later regulations such as the 2000 Convention on criminal legal aid or the framework decision on the Euro mandate 2002. The position of Denmark, the United Kingdom, Ireland, Iceland and Norwayare reviewed and the study draws the conclusion that this model of closer corporation, which is the only one in existence, has been virtually exhausted.