The legal framework for the enlargement

The legal background of the enlargement defines the accession of new member states as a complex and ever-changing factor. This is based on the changes in the codified law and in the treaties of Accession, not to mention the constant

7 Dr. Edit LŐrINCZNÉ BENCZE: Az európai uniós bővítések elmélete és gyakorlata a horvát csatlakozás tükrében. Aposztróf, Budapest, 2013.

8 SCHIMMELFENNIG – SEDELMEIEr, 2002. 503.

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growth of soft law. In case of non-codified law the changes in the criteria and rules of accession, in the stakeholders and their roles and in the schedule of the enlargement is proved. The Copenhagen Criteria and related documents, the Pre-Accession Strategy, the yearly progress reports of the Commission highlight the expansion the system of requirements that is also affected by the fact that the Union itself changes constantly as well. Though the Community has previously also laid down some political criteria for the candidate countries, these did not affect the substantive elements of the accession never before. In case of the countries after the democratic transition the criteria have changed and become stricter. to top it all, the Union even insisted on the strict and consistent adherence to them, which also resulted in changes in the inner policy of the Union.

The EU enlargement is regulated on one hand by number of relevant EU treaty articles, and the other hand by soft law, including the Copenhagen criteria and so called the Copenhagen related documents, Stabilization and Accession Agreement, benchmarks, some of them falling in between legal and political regulation. Based on the treaties there are six main stages of development of enlargement law of the European Communities. The first is the Coal and Steel Community treaty. According to Article 98 of the ECSC treaty regulation any “European state may apply to accede to this Treaty” and it gave the Council almost exclusive powers to deal with such application. The only criteria of becoming member were statehood and being European state.⁹

The European Economic Community and EUrAtoM created in 1957 did not change the basic principle, as any European state was allowed to apply.

However he Article 237 of the EEC treaty and Article 205 EUrAtoM treaty were based on the principle of intergovernmentalism as the Member States were given much more powers to regulate the process. The accession named as the “agreement between the Member States and the Applicant State’, the Accession Treaty had to be ratified by ‘all the Contracting States in accordance with their respective constitutional requirements”.¹⁰

The third stage of enlargement law was the Single European Act 1987 in which the Parliament’s powers were strengthened through its assent needed on enlargement and association agreements.

In some cases the Community introduced Association Agreements used with turkey in 1963, Malta in 1979 and Cyprus in 1972 and renewing this method and introducing their second generations of in case of Central and

9 treaty establishing the European Coal and Steel Community. Article 98. Paris, 1951.

10 treaty establishing the European Economic Community. Article 237. treaty establishing European Atomic Energy Community. Article 205 rome, 25 March 1957.

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Eastern European Countries (CEES) called them European Agreements and third generations named Stabilization and Association Agreements (SAA) with Western Balkans countries. All these Agreements were based on Article 310 (ex 238) EC treaty according to which “the Community may conclude with one or more States or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedures”.¹¹ The aim of these agreements is to provide for comprehensive cooperation in political, economic, trade, cultural areas between the Community and the aspirant country as well as the framework for rapid progress towards trade. The European Agreements were concluded between 1991 and 1993 with the CEES making explicit provision for full membership of the Union, but do not guarantee it.¹²

The third revision of the written enlargement law was introduced by Maastricht treaty in 1993. Before Maastricht, a country planning to become a member had to make three applications, namely to each of the three Communities. Membership in one or two Communities was theoretically possible, although it never happened. After Maastricht, membership in the European Union is governed by one single Article, namely Article o tEU, which consequently had small influence on the previously existing practice.

In this way the next enlargement round in 1995 already governed by Article o tEU was no different from the previous ones.¹³

The fifth reform of the enlargement law was brought about by the Amsterdam treaty, which renumbered Article o to Article 49tEU. The Copenhagen membership criteria used in case of Central and Eastern European countries are not quoted explicitly but reference is made to them in Article 49 namely

“the criteria of eligibility approved by the European Council are taken into account”.

Article 49 of the treaty on European Union states that „any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.”¹⁴ These democratic values are

“freedom, democracy, respects for human rights and fundamental freedoms and the rule of law”¹⁵, so from the moment on the country applying to Community

11 treaty establishing the European Economic Community. Article 238. rome, 25 March 1957.

12 CAMEroN, Fraser: The European Union and the Challenge of Enlargement. Halki International Seminars,1996. 9.

13 treaty on European Union Article o. official Journal C 191 Maastricht 29 July 1992.

14 treaty on European Union Article 49. official Journal of the European Union. C 83/15, 30.3.2010

15 treaty on European Union Article 6, official Journal of the European Union. C 83/15, 30.3.2010

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should accept these common norms. In addition the EU ought to be guided only by stated democratic and human rights performance of the target countries and it ought not to discriminate against any country either positively or negatively on the basis of other considerations.

The sixth and the last treaty reform to deal with enlargement regulation was Lisbon treaty in 2009. The Lisbon treaty in the Article 2 added some other values to the list introduced in Amsterdam as it says „the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” ¹⁶ It was the first time when such values as equality and minority rights were mentioned and candidate states must respect all these values listed in Lisbon treaty. It means that European values were added to the originally established conditions.

The current treaty includes some other changes regarding enlargement, such as increasing role of the European Parliament in the whole enlargement as well as in the EU decision making process. However it was the Constitutional treaty (Article I/58) that established obligation to inform the European Parliament and national parliaments about any new membership application the Lisbon treaty has maintained this clause. So far the European Parliament has been given limited role as it gave assent for enlargement decision (Single European Act). Since Lisbon treaty on the European Parliament whose members are elected directly by the EU’s citizens instead of its ‘assent’ has to give its ‘consent’¹⁷

Before Lisbon the role of national parliament was to ratify the accession treaty after having been signed according to the national law. The aim to strengthen the role of EP and national parliaments to increase the legitimacy of the whole process, to bring decision making closer to the national constituencies and to reduce of democratic deficit of the EU.¹⁸

There have been no changes in role of the Council as “the applicant state shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility

16 treaty on European Union Article 49. official Journal of the European Union. C 83/15, 30.3.2010

17 treaty of Lisbon, Amendments to the treaty on European Union and to the treaty Establishing the European Community Art. 1., 57.

18 PIEDrAFItA, Sonia: The treaty of Lisbon: New Signals for Future Enlargements.

EIPASCOPE. 2008/1. 4.

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agreed upon by the European Council shall be taken into account.” In addition the accession agreement should be go under ratification process by all the member states as well as by applicant state in accordance with their respective constitutional requirements.¹⁹

It is seen that treaties introduce just very few substantive conditions for the applicants. The most important two substantive conditions existing since 1951 are that the applicant must be a State and it must be the European one. The term European however was never fixed and it aroused huge debate in 1987, when turkey applied for the membership to the Community as only 96 percent of the country territory belongs to the continent. to define European we have to take into consideration geographical, historical and cultural elements as well that according to the European Commission constituted European identity.²⁰

The third substantive criterion that the candidate should accept European values was de facto applied to all previous accessions, but was only the treaty of Amsterdam in 1997 which formally included it and treaty of Lisbon in 2009 which strengthened it. to sum up the enlargement criteria were statehood, Europeaness and fundamental freedom.