Substantive enlargement criteria – conditionality

It was the European Assembly which in 1962 in Birkelbach report set the first out-of-law enlargement criteria and interpreted that the applicant state must be a democratic one.²¹ on the bases of this statement the EC did not accept Spain as a candidate, as the country was not a democratic one when applied for membership on 9 February 1962. In the Declaration on Democracy issued by Copenhagen Council in 1978 with strong connection changes taking place in Southern Europe the similar approach was stated: “the respect and maintenance of representative democracy and human rights in each member states are essential elements of membership in the European Community”.

However, the real change happened in case of Central and Easter European countries. After the collapsing of the Communism and gaining back their independence 10 former socialist countries – Hungary, Poland, Slovenia,

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

20 CoM: Europe and Challenge of Enlargement. Bulletin of the European Communities, Supplement 3/1992. Luxembourg, 11.

21 EUroPEAN ASSEMBLy: Birkelbach Report. 1962. Archives of the European Communities. 07. 515:32, X3. 075. 15.

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Slovakia, Czech republic, rumania, Bulgaria and the Baltic States – expressed their willingness to become member of the European Communities. The Community has never before been faced with such candidate countries having an economic and political background entirely different to Western standards.

Commission’s report ‘Europe and the Challenge of Enlargement’ adopted in June 1992 Lisbon²² submitted that the Community had never been a ‘closed club’, its open for new candidates who in order to become a member should meet several criteria, namely to share European values, to be a democracy, to respect human rights, to adopt objectives the EC including CFSP and all the acquis and to assume all the membership obligations. Next year the Commission introduced a report titled ‘towards a Closer Association with the Countries of Central and Eastern Europe’.²³ on the bases of this document the Council introduced new substantive principles for the Eastern European countries so called Copenhagen criteria in 1993. These criteria specify the conditions, which each candidate country has to fulfil in order to become a member of the EU.

According to Copenhagen criteria membership to the Union requires:

• “that the candidate has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (new!):

• the existence of a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the Union, and

• the ability to take on the obligations of membership, including adherence to the aims of political, economic, and monetary union.” ²⁴

Even though it was no till June 1993 that the Copenhagen European Council first stated criteria namely “the Union’s capacity to absorb new members, while maintaining the momentum of European integration”.

The Madrid European Council in December 1995 not only confirmed these criteria but also introduced some new one, as the development of the market economy, the adjustment of their administrative structures and the creation of a stable economic and monetary environment.²⁵

22 CoM: Europe and the Challenge of Enlargement. Bulletin of the European Communities Supplement Luxembourg, 3/1992.

23 CoM: Towards a Closer Association with the Countries of Central and Eastern Europe. Brussels, 18 May 1993.

24 EUroPEAN CoUNCIL: Presidency Conclusions, Copenhagen, 1993 June 21-22. 13.

25 EUroPEAN CoUNCIL: Madrid European Council. 15-116 December 1995. Bulletin of the European Communities, No. 12/1995

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on the bases above it is clear that substantive elements of the enlargement criteria have been introduced in Copenhagen. The EU clearly demanded adaptation and clearly implementation to EU rules and thus stable democracies and prosperous economies measures of liberalisation and deregulation. Eastern enlargement was and all the forthcoming enlargements will be – as it could be seen in case of Croatia – regulated with a due regard to the Copenhagen criteria.²⁶

to strengthen the conditionality number of other documents were added to Copenhagen criteria. The Commission according to Article 49(1) tEU(71) not only releases the opinions on the Application for membership but also on the bases of Agenda 2000 issued in 1997²⁷ it introduces annual reports on the candidate countries. These reports contain the candidate country’s progress towards accession, summarising documents²⁸, as well as recommendations concerning the opening of negotiations and the general assessment of the situation with fulfilment of the Copenhagen Criteria.²⁹ In addition the role of the Copenhagen-based conditionality in all the cases of further enlargements (Central and Eastern European countries and Western Balkans countries) was increased with the introduction of Accession Partnerships.³⁰

Now it seems to be evident that the principle of conditionality lies at the heart of the enlargement process, as the Community sets of requirements in order to gain full EU membership. According to Smith, two types of conditionality can be separated, positive and negative ones. In case of positive conditionality, on the bases of the candidate country’s progress the EU offers the applicant the chance of carrying on the negotiations, to start a new stage in the accession process. Negative conditionality means that when the EU is

26 GrAHAM, Avery – FrASEr, Cameron: The Enlargement of the European Union, Sheffield:

Sheffield Academic Press, 1998. 23.

27 CoM: Agenda 2000: For a Wider and Stronger Union. CoM (97) 2000 final, 13 July 1997.

official Journal of the European Communities, Luxembourg;

28 Such as Composite Paper reports on Progress towards Accession by Each of the Candidate Countries, CoM(1998) 712 final; Composite Paper reports on Progress towards Accession by Each of the Candidate Countries, CoM(1999) 500 final; Enlargement Strategy Paper report on Progress towards Accession by Each of the Candidate Countries, CoM(2000) 700 final; Making a Success of Enlargement Strategy Paper and report of the European Commission on the Progress towards Accession by Each of the Candidate Countries, CoM(2001)

700 final, SEC(2001) 1744-1753. etc

29 The first regular reports from the Commission on Progress towards Accession by Each of the Candidate Countries were released on 4.11.1998.

30 The criteria was introduced just in case CEES’s, but it regulates further enlargements as well, as it was used in case of Croatia.

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unsatisfied with the efforts made by the aspirant the accession process could be halted or slowed down.³¹

Using Copenhagen Criteria of the Copenhagen European Council in June 1993 and Madrid Criteria in 1995 as a pre-accession conditionality it is revealed that the EU strengthened the criteria of admission and decreased its financial instruments at the same time when the accession of the post-communist countries after the democratic transition came on the agenda. It was the first time when the EU clearly acknowledged the requirement for potential member states. In addition the fact that the EU made the accession process harder after Eastern enlargement, Western Balkans countries – as it could be seen in case of Croatia – have to face with three generations of the enlargement criteria. According to the first wave of criteria Central and Eastern European countries as well as Western Balkans countries should fulfil all the named Copenhagen Criteria.

The second generation of enlargement criteria was introduced for the first time in case Western Balkan region including Croatia. During the 1990s EU enlargement leverage did not have any particular effect on developments in the Western Balkans. It was only in 1996 that the EU General Affairs Council introduced regional Approach aimed at strengthening stability, good-neighbourhood and economic recovery in South-East Europe. Next year the EU fitted the regional Approach with political and economic conditionality for the development of bilateral relations with the five Western Balkan countries including Croatia.³² In fact, the Council complemented the Copenhagen Criteria with an additional condition, i.e. ‘regional cooperation’.

In order to make closer relations with both the EU and the NAto, cooperation with the ICty was established as a key condition by the Dayton countries (Croatia, Bosnia, and Serbia-Montenegro). In fact, one of the biggest obstacles of the Croatian accession was that the ICty claimed jurisdiction over the Croatian military, particularly in relation to the operations Flash and Storm in Krajina.³³

It was just at the end of the decade when the EU had simultaneously adopted a ‘coherent strategy’ called Stabilisation and Association Process (SAP) for the Western Balkans. The SAP pursues three major aims, namely stabilisation,

31 SMItH, Karen E.: The use of political conditionality in the EU’s relations with Third Countries: How effective? European Foreign Affairs Review, 2012. Vol. 3. 253-274. 256.

32 CoM: Regional Approach to the countries of South-Eastern Europe: Compliance with the conditions in the Council Conclusions of 29 April 1997 – Commission Communication on operational Conclusions CoM (1998) 618 final

33 JoVIć, Dejan: Croatia and the European Union: a long delayed journey. Journal of Balkan and Near Eastern Studies, 8/1 (2006) 85-103. 2.

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the promotion of regional cooperation and the prospect of EU accession. The SAP is the most important element of the specific criteria for the region. It is considered to be the second generation of European agreements launched in 1999 that established a more detailed list of EU accession criteria for candidates through the Stabilisation and Association Agreements (SAA).

The SAAs were very similar to the European Commission’s Association Agreements with the CEE countries, although they added some new and specific elements of conditionality such as stabilisation, regional cooperation, democratisation, commitment to respect human rights and the right of return for all refugees and displaced persons, the development of civil society and institution-building.³⁴ SAA included economic and financial assistance and cooperation, political dialogue, harmonisation with the acquis communautaire, as well as the development of a free trade agreement between candidate country and the EU. In addition to the SAA introduced a new assistance mechanism for the region. Croatia’s SAA negotiations began in early November 2000, and less than a year later, on 29 october 2001, the Croatian government signed the SAA in Luxembourg. on this bases the country hoped shortened and ‘fast-tracked’ harmonisation procedure and accession process.

Eventually, the third wave of conditions accompanied Croatia’s accession process starting in 2005, embodied a specific criteria, called ‘benchmarks’.

After experiences with Bulgaria and romania the European Commission decided to make the negotiation process much stricter with the introduction of benchmarks, instrument used for the first time in case of Croatia. In the European Commission’s own words, benchmarks constitute a „new tool introduced as a result of lessons learnt from the fifth enlargement, to improve the quality of accession negotiations, by providing incentives for the candidate countries to undertake necessary reforms at an early stage.”³⁵

These are strict obligations and they require a considerable effort by all the candidates. For example, assuming the acquis communautaire applicants are expected to accept the detailed laws and rules adopted on the basis of the EU’s founding treaties, mainly the treaties of rome, Maastricht, Amsterdam, Nice and Lisbon. The acquis is subdivided into 35 chapters and involves implementing over 100,000 pages of Community legislation. Using conditionality as the major principle allows the Union to choose the most successful applicants and to differentiate – as it could be seen in case of romania and Bulgaria in 2007, and Croatia in 2013.

34 CoM: Stabilization and Association Agreement with Croatia. Official Journal of the European Union L 026. Volume 48. 28 January 2005.

35 CoM: Enlargement Strategy and Main Challenges 2006-2007. CoM (2006) 649 final, Brussels, 10.

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The EU’s conditionality has changed after 2004 as it has undergone a three-dimensional evolution. The first one is based on the specific features of SAP, as SAP countries should implement all the SAA conditions before being considered by the EU as membership applicants. This is the so called pre-pre-accession conditionality.³⁶ The second evolutionary dimension of the pre-accession conditionality regards the introduction of the tool of benchmarking.

The third stage of conditionality is in the post-accession period’s specific safeguard clauses, later being reinforced by the „cooperation and verification mechanisms in the area of judicial reform and the fight against organised crime and corruption”.³⁷

The enlargement as the EU’s most successful policy was placed on new grounds after regime changes. As José Manuel Durão Barroso, President of the European Commission said „EU enlargement is about credibility: Credibility from the candidates in respecting all criteria and enforcing the required reforms, but also credibility on the EU’s side in moving forward once the agreed conditions have been met”.³⁸ Ulrich Sedelmeier names two sides of credibility from another point of view. on one hand „the candidates have to be certain that they will receive the promised rewards after meeting the EU’s demands”. on the other hand “they also have to believe that they will only receive the reward if they indeed fully meet the requirements”³⁹ The EU’s credibility had to be reinforced through strict membership criteria, in order to remain the most important tool for democratisation, for strengthening stability and prosperity.

Christopher Preston says that he EU follows four main principle in pursuing its objectives for enlargement and for imposing requirements on the candidate countries. The first principle is that the EU insists on the full acceptance of the acquis communautaire which must be integrated into a candidate’s national law before membership is granted. The second principle is about creating new policy instrument by the EU that tends to address diversity. According to the third one, the EU integrates new member states with institutional adjustments resulting in long and often acrimonious treaty negotiations. Hardly any institutional reforms have occurred in parallel with enlargement until the

36 PIPPAN, Christian: The rocky road to Europe: The EU’s Stabilisation and Association Process for the Western Balkans and the Principle of Conditionality, European Foreign Affairs Review, 9/2 (2004) 219-245. 227.

37 CoM: Commission Decision establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight against corruption and organised crime. Brussels, 13/XII/ 2006. C (2006) 6570 final

38 BArroSo, José Manuel Durão: Statement by President Barroso following his meeting with Ivo Josipović, President of Croatia. Press point Brussels, 17 June 2011 SPEECH/11/447,

39 SEDELMEIEr, Ulrich: Europeanization in new member and candidate states. Living Review. European Gov.1/3. (2006) 12.

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summit meeting in Nice in 2000 and the Lisbon treaty of 2007 aimed to make the Union ready for future enlargements. The EU’s fourth principle is that the Community prefers to negotiate with groups of states that already have close relations with one another. This principle is a coherent issue throughout all EU enlargement processes, with the notable exception of Greece in 1981 and Croatia in 2013.⁴⁰

6. Summary. Challenges and perspectives of EU enlargement in the future