Las perspectivas del sistema financiero ecuatoriano

Having elaborated on the Treaty provisions that govern the enhanced cooperation mechanism, the basic rationale of its use becomes more visible. Enhanced cooperation is supposed to present a treaty-based flexibility mechanism providing an alternative to intergovernmental cooperation outside the EU within the legal framework of the Union as a measure of ‘last resort’. This last resort requirement stipulates that a differentiated integration taking place by means of an enhanced cooperation scheme is only conceivable if it is proven that a common approach is not feasible at that time and the foreseeable future. It allows a group of States to develop a specific policy area that is not yet sufficiently integrated, but where not all States wish to participate, by providing a framework for cooperation. If this cooperation aims at furthering the objectives of the

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Union, the initiative is able to make use of the EU institutional framework under the constraints outlined under Art. 20 TFEU and Art. 326 TFEU (Ullrich, 2012). Enhanced cooperation is also referred to as pre-empting possible obstacles to the further deepening of the EU that might arise from ‘different moods and capacities with respect to the time and density of European integration’ (Lamping, 2011, p. 9), while it strives not to perpetuate already existing divergences among the Member States. It thus allows some Member States to continue integration and overcome stagnation, while respecting the reluctance or inability of the other Member States to refrain from cooperation without affecting existing integration or be against the general objectives of the Union. From this perspective, enhanced cooperation should not be regarded as an instrument for deterrence, but more as a mechanism that enables the consolidation of the acquis communitaire in the long term (Lamping, 2011). As such it constitutes a powerful tool to overcome institutional impasse with the ultimate purpose is to reinforce integration, while the mere existence of the enhanced cooperation mechanism is claimed to serve its own purpose: in areas governed under unanimity, that is, areas sensitive to national interests, the possible threat of deeper integration by a small group of Member States is assumed to lead to consensus and reinforce an upward-directed flexibility (Tekin & Wessels, 2008), while any recourse to a differential approach to integration is only acceptable if based on general consensus and the ability to ‘agree to disagree’

(Lamping, 2011, p.11). Also Craig (2010) argues that enhanced cooperation constitutes a suitable mechanism in the event that a common approach at a distinct point of time is not possible, while at the same time it is hoped that it would serve as a catalyst for other Member States to join in the future. In that regard, it is indeed the case that there is an inherent obligation to re-establish the unity of law as soon as the difficulties underlying the recourse to an enhanced cooperation procedure have ceased to exist (Langeheine, 1984). While integration, as based on common objectives, would be pursued initially only by a few number of Member States, the non-participating states would be allowed to remain at a lower level of integration for an unlimited time, but in all instances on a temporary basis (Lamping, 2011). Beside the temporary aspect of the differentiation, any enhanced cooperation measure should further reflect socio-economic differences rather than subjective political preferences of the Member States, while the act should be based on integrity and good faith. Taking up on this, it is important to see enhanced cooperation as a flexibility mechanism that exists alongside existing unanimity rules and not as a substitute measure for majority voting in order to circumvent blockages. Gomes de Andrade (2005) acknowledges that enhance cooperation creates fragmentation and leads to a division of Member States into formally distinct groups. Whether this fragmentation is, however, positive or negative, depends on how the EU deals with it. In

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that sense, fragmentation is argued to be a necessary condition for the continuity of the integration process, but any enhanced cooperation scheme should be accompanied by a common dimension of shared objectives, rather than the pursuit of conflicting goals of the Member States. The application of enhanced cooperation in the area of unitary patent protection on grounds of disagreement on the applicable language regime is accordingly rather contested. While some welcome the launch of the enhanced cooperation scheme in the area as a historic breakthrough, others see it as an act of exclusion of Spain and Italy, not at least because they brought complaints against the decision to launch the enhanced cooperation procedure before the ECJ and on the basis of their general commitment to the project of unitary patent protection. While it is not within the limits of this research paper to assess whether the legal conditions for the use of enhanced cooperation in the area of unitary patent protection are fulfilled or not, the discussion part will address this issue superficially, based on the insight that is sought on the conditions that need to be fulfilled to achieve a common approach on unitary patent protection.

4.4 Advantages of a Common Approach vis-à-vis Enhanced Cooperation