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I CONDITIONALITYI I THE PROCEDURE OF ACCESSION TO THE
EUI I I F INANCIAL , TECHNICAL AND LEGAL
SUPPORTIV STABILIZATION AND ASSOCIATION
PROCESS
Unit 4
Ani Grigoryan <[email protected]>
Introduction
The issue of the conditions attached to the conclusion and operation of association agreements, the opening of negotiations as well as actual accession itself is one that is addressed by the EU through a combination of political, economic, legal, administrative, and institutional criteria.
Conditions are governed by the EU Treaty and various other Union instruments.
Accession of new MS is governed by Art. 49 EU (TL)
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. The European Parliament and national Parliaments shall be notified of this application. 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 agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
Article 2 EU (TL)
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 are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Despite its wording, Art. 49 remains an imperfect guide to enlargement and forms merely the departure point for the principles and procedures profoundly affected by the 5th and 6th enlargements.
Conditionality includes 3 types of criteria1) Signing and continuing operation of
association agreement criteria,2) Opening of negotiations; and3) Enlargement criteria
Criteria for signing an association agreement and its continuing operation (for WB countries)
Before concluding bilateral contractual relations with the EU in the form of SAAs, WB states are required to make credible headway with general political criteria (sort of pre-pre-accession conditionality)
1997 Council concluded to start of the negotiations requiring a lower level of compliance than required in the SAAs
In each stage of negotiations, SAAs included, the situation would be monitored and application suspended in case of non-compliance.
General conditions to permit beginning of negotiations (regional)
Credible offer and real opportunities for displaced persons and refugees to return to their places of origin
Readmission of nationals who are present illigally in the MS of the EU
Compliance to the Dayton and Paris agreements including co operation with the ICTY
Further conditions include democratic reforms, compliance with human and minority rights, free and fair elections, independent media, economic reform, good neighbourly relations
In addition, other conditions apply only to certain countries such as those relating to peace agreements
Annex of the April 1997 Council Conclusions
Political criteria: democratic principles, human rights and the rule of law, and respect and protection of minorities;
Economic criteria (market economy reform): macro-economic institutions, and policies necessary to ensure a stable economic environment, comprehensive liberalization of prices, trade, and current payments, the setting up of a transparent and stable legal and regulatory framework, de-monopolization and privatization of State owned enterprises, establishment of competitive banking sector.
Continuing operation of Association Agreements
“Essential element clause”, European Commision, Communication, ‘The Inclusion of Respect for Democratic Principles and Human Rights in Agreements between Community and Third Countries”, 1995
“Suspension clause”, laconically used“Bulgaria clause”
Bulgaria’s Europe Agreement
If either party considers that the other Party has failed to fulfil an obligation under this agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall apply to the Association Council with all the relevant information required for a thorough examination of the situation with the view to seeking a solution acceptable to the parties.
(…) In selection of measures, priority must be given to those which least disturbs the functioning of this Agreement: These measures shall be notified immediately to the Association Council and shall be the subject of consultations within the Association Council if the other Party so requests
“Essential element clause”, European Commision, Communication, ‘The Inclusion of Respect for Democratic Principles and Human Rights in Agreements between Community and Third Countries”, 1995
“Suspension clause”, laconically used“Bulgaria clause”SAAs include Essential element clause,
Bulgaria clause, and interpretative declaration.
Essential elements for the SEE broadened
EC – Croatia SAA, Art. 2: essential elements of the Agreement are respect for the democratic principles and human right, respect for international law principles and the rule of law, as well as the principles of market economy.
Strenghtens the regional approach, allows the EU to take over the ICTY conditionality.
Criteria to Commence Accession Negotiations to conclude SAA
Agenda 2000 refused accession negotiations for Turkey and Slovakia due to insufficient fulfillment of the political criteria as described at the Copenhagen Council.
Subsequent admission of the two indicates that while Copenhagen political criteria does not need to be completely fulfilled, it must be shown that the country is substantively on the way of meeting the conditions.
Negotiations can not commence in the absence of: 1) free and fair elections, 2) parliamentary and political opposition playing part in the operation of institutions, and 3) stable institutions that guarantee proper functioning of public authorities, consolidation of democracy, RoL, human and minority rights.
Criteria for Accession
GeographicalPoliticalEconomicLegalAdministrativeInstitutional
Geographical criterion
Art 49 (1) EU (TL) – “European state”Medium term line drawn (Eastern
Neighbourhood Policy)
The Copenhagen criteria (oreginally for the CEECs)
To join the EU, a new Member State must meet three criteria:
•political: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
•economic: existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union;
•acceptance of the Community acquis: ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.
Union’s capacity to absorb new members, while maintaining the momentum of European integration in the general interest of both the Union and the candidate countries.
Political criteria
Values stated in Art. 2 EU (TL) + MRDemocracy and the rule of lawHuman rights (membership to CoE, ratification of the
ECHR and protocols, analysis of the progress of signature or ratification of int’l or regional convention on HR)
Minority rightsIntra regional Co-operation (Stability Pact, SAP)and
good neighbourliness (minority protection) became part of the SAA (each Balkan SAA signatory commits to enter into cooperation and good neigh.with other SEECs, but also to promote such cooperation, while Union commits technical and financial assistance / Title III SAA) pg223
Economic criteria
Present since consderation of the first ever enlargement.
In the context of EU membership , the functioning market is internal market.
Obligation to transpose all the EU’s economic and monetary rules into domestic law (to tie their currencies to the euro and set exchange rate accordingly).
Adoption of the acquis – essential in order to provide that common rules will continue to run throughout the Union.
Ability to assume the acquis
Membership implies the acceptance of the rights and the obligations actual and potential, of the community system and its institutional framework the Community acquis, as it is known. That means:
- the contents, principles and political objectives of the Treaties;- the legislation adopted in implementation of the Treaties, and the
jurisprudence of the Court;- the declarations and resolutions adopted in the Community framework;- the international agreements, and the agreements between MS
connected with the Community s activities. The assumption of these rights and obligations by a new member may
be subject to such technical adaptations, temporary (not permanent) derogations, and transitional arrangements as are agreed in accession negotiations. The Community will show comprehension for the problems of adjustment which may be posed for new members, and will seek adequate solutions. But the principle must be retained of acceptance of the acquis, safeguard the achievements of the Community.
Administrative capacity
State’s ability to implement and enforce the EU law – applicant’s administrative and judicial system has to be able to cope effectively with the pressures of EU membership.
The EU capacity to absorb the new MS
Unit 3Applicant countries can exercise no direct
influence
Maastricht and Lisbon Criteria
DignityFreedomEquality
The procedure of accession to the EU
Article 49 EU (TL) might lead to conclude that the text implies a chronological division of the enlargement process into supranational phase (49 1) and intergovernmental phase (49 2).
However, it point only the departure pointEuropean Council 2004 agreed on a revised
framework for every future round of negotiations (negotiation framework would be formed according to ‘own merits and specific situations and characteristics of each candidate state’.
Application for membership
European state submits an application for membership to the Council
EP and all nat’l parliaments to be notifiedThe application is an autonomous political act
determined by the aspirant State itself.The EU does not encourage or discourage
application, but nevertheless CEEC and WB.Timing of the application.SEECs wait for SAA to be signed to apply.
Commission Opinion
After the Council of Ministers receives an application it asks the EC to draw up an Opinion assessing the candidate’s capacity to assumes the obligations of membership.
On basis of initial opinion EC takes the decission to open the negotiations.
The Treaty does not however explocitly requires positive oppinion.
Norway 4 months, Turkey, Cyprus, Malta – 3 years
Preparations of the Opinions
EC is guided by the Copenhagen and Madrid criteria.
Pg 244 Presidency Conclusions.In order to complement these sources, the
Commission sends out a questionnaire to the govt’s of the accession countries. Each Q has same structure and contents comprising 150 pages and 1000 questions: 1) general background info (statisics and data) in order to create an overall picture of the candidate and 2) more specific in depth sectoral information on acquis implementation and administrative capacity.
The structure and general contents of the opinions
The EC has developed a standard approach to the contents of its opinion on a country’s application for EU membership.
1) Introduction: description of the relations up to that time
2) Criteria for membership: political, economic, ability to assume the obligations of membership, administrative capacity
3) Summary and conclusions: include recommendation concerning negotiations.
Regular or Progress Reports
Where the actual accession does not follow within a year of the EC initial opinion it is necessary to update the original evaluation. Pg 247.
Progress is measured on the basis of decisions actually takenm legislation actualy adopted, conventions actualy ratified, and measures actualy implemented.
Regular reports provided a ‘snap shot’ of a candidate’s development over the 12 month period since Opinion/last Report.
As of 2004 Progress Reports (accompanied by an annual Enlargement Strategy Paper).
Negotiations
Once the Opinion is adopted by the EC it is sent to Council for its unanimus decision.
Regatta or stadium approach?Accession Negotiations are the process by
which a candidate country accedes to the European Union and adopts its founding treaties. The close of Accession Negotiations is followed by the signing of an international treaty between the EU Member States and the candidate country called the Accession Treaty.
General negotiation framework
Unlike negotiations for concluding the SAAs (led by the EC under the Council’s mandate), the accession negotiations amount to an IGC between EU and applicant.
Participants of the negotiating process are the candidate country on one side and the EU Member States on the other. In the course of negotiations, the negotiating positions of the EU are represented by the Presidency of the Council of the European Union, on behalf of the Member States, while negotiations are conducted on behalf of the candidate country by the State Delegation for Negotiations. Apart from the Head of the State Delegation (in most cases elected at ministerial level), the State Delegation for Negotiations of the candidate country includes the Chief Negotiator and the Negotiating Team.
Sessions of the Intergovernmental Conference on accession are held at the level of heads of delegations for negotiations, usually ministers of foreign affairs, and at the level of deputy heads of delegations.
When the Intergovernmental Conference convenes at the level of deputy heads of delegations, EU Member States are represented by their permanent representatives to the European Union in Brussels, while the candidate country is represented by the Chief Negotiator (or in some cases the Head of the Mission to the European Communities).
Sessions of the Intergovernmental Conference at the level of heads of delegations are held once during each Presidency of the European Union, in other words, twice a year.
Accession to the EU is conditioned by the adoption of the acquis communautaire - the body of legislation and rules, political orientations, practice and obligations.
The main elements of the continuously expanding acquis communautaire are:
1)primary legislation - treaties 2)secondary legislation - regulations, directives, decisions,
recommendations and opinions 3)other legal sources - decisions of the European Court of
Justice, general principles of law, international agreements
4)other acts – resolutions, declarations, recommendations, guidelines, joint actions, joint positions, etc.
For the purpose of the negotiating process, the acquis communautaire is divided into 35 chapters.
The candidate country does not negotiate on the acquis communautaire itself, but rather on the conditions and ways for its own legislation to be harmonised with it and on the means for its implementation.
It is precisely for this reason that accession negotiations are not considered to be negotiations in the classical sense, but a process of harmonisation on the part of the candidate country to the values and to the legal, economic and social system of the European Union.
If a candidate country considers that for justifiable reasons it will require a longer period of time for harmonisation in a particular chapter, during negotiations on that chapter it may request so-called transitional periods.
These transitional periods are additional periods in which the candidate country will complete the harmonisation of national legislation with the acquis in a particular area after accession to the EU.
In exceptionally rare cases, candidate countries may also request derogations from the acquis, in other words permanent exceptions in particular areas. It is important to stress that transitional periods for the adoption of the acquis can also be agreed on in the interest of the EU.
The negotiating process
The formal opening of the negotiating process is followed by the analytical overview and evaluation of the degree of harmonisation of national legislation with the acquis communautaire, known as screening.
The main purpose of the screening process is to determine the differences that exist between the national legislation and the acquis communautaire for every chapter with which the national legislation needs to be harmonised by the date of accession. The duration of the screening process for individual chapters depends on the extent and the amount of the acquis communautaire for the respective chapter and can last from one day to several weeks.
Overall, the screening process usually lasts for a year.
After screening is completed, the decision on the opening of negotiations for individual chapters, depending on the evaluated readiness of the candidate country, is made by the Member States within the Council of the European Union.
With the opening of negotiations for individual chapters the subject of negotiations is the conditions under which the candidate country will adopt and implement the acquis communautaire in the respective chapter, including transitional periods which the candidate country might have requested.
Acquis Chapters
1. Free Movement of Goods 2. Freedom of Movement For Workers 3. Right of Establishment For Companies & Freedom To Provide Services 4. Free Movement of Capital 5. Public Procurement 6.Company Law 7. Intellectual Property Law 8. Competition Policy 9. Financial Services 10. Information Society & Media 11. Agriculture & Rural Development 12. Food Safety, Veterinary & Phytosanitary Policy 13. Fisheries 14. Transport Policy 15. Energy
Acquis Chapters II
16. Taxation 17. Economic & Monetary Policy 18. Statistics 19. Social Policy & Employment 20. Enterprise & Industrial Policy 21. Trans-European Networks 22. Regional Policy & Coordination of Structural Instruments 23. Judiciary & Fundamental Rights 24. Justice, Freedom & Security 25. Science & Research 26. Education & Culture 27. Environment 28. Consumer & Health Protection 29. Customs Union 30. External Relations 31. Foreign, Security & Defence Policy 32. Financial Control 33. Financial & Budgetary Provisions 34. Institutions 35. Other Issues
Closing the Chapters
After agreement has been reached between the EU and the candidate country on the individual chapter of the negotiations, and once the set benchmarks have been met, the respective chapter is considered temporarily closed.
The formal decision is made by the IGC at ministerial level.
If, before the Accession Treaty has been concluded, new provisions for a specific chapter of the acquis communautaire are adopted, or if the candidate country does not meet the set benchmarks or obligations assumed under the respective chapter, negotiations for the chapter in question can be reopened.
Accession to full membership
When the negotiations for all chapters of the acquis communautaire have been temporarily closed, the European Council, in its conclusions, usually marks the end of the negotiation process with a candidate country.
The results of the negotiations are then incorporated in the provisions of the draft of the Accession Treaty which is drawn up jointly by representatives of the EU Member States, representatives of EU institutions and representatives of the candidate country.
After agreement has been reached on the text of the Accession Treaty between the EU and the candidate country, the draft of the treaty is referred to the EU institutions, EU Member States and the candidate country where appropriate procedures regarding the ratification of the document take place.
Prior to the signing of the Accession Treaty, the European Commission needs to deliver its final opinion on the application for membership of the candidate country on the basis of the draft Accession Treaty.
Additionally, the European Parliament needs to give its consent and, finally, the European Council must reach a unanimous decision on acceptance of the new candidate country and its application for EU membership.
From that moment on, the candidate country is regarded as an acceding country.
The Treaty is signed by the highest officials of the EU Member States and the acceding country. The document is then referred to signatories for ratification in accordance with their domestic constitutional provisions.
Following the signing of the Accession Treaty, the acceding country has the right to participate in the work of the European Council and the European Parliament as an active observer.
In order to enter into force, the Accession Treaty needs to be ratified by the national parliaments of the EU Member States and the parliament of the respective acceding country. Prior to the ratification of the Accession Treaty by national parliaments, most of the acceding countries hold a referendum by which it allows its citizens to make a final decision on the accession of the country in question to the European Union.
The acceding country becomes a member of the EU with the entry into force of the Accession Treaty, usually on a predetermined date, under the condition that the ratification process has been finalised.
Monitoring between Signature and Accession
Upon concluding, the EC continues to monitor the progress in implementing anf enforcing the acquis.
Allows verification whether the promises made in the negotiations were being kept and timetables adhered to.
Domestic constitutional reform and Referendum
As the main foundation of popular legitimacy for EU authority remains the democratic will of the people, it was natural for the countries in the fifth, sixth enlargement and Croatia that confirmation of the Accession Treaty by national referendum is needed.
For some constitutions transfer of sovereignity and /or ammandments of the constitution required confirmation by referendum.
In other States referendums were optional but seemed as politically necessary in order to legitimize entry into EU.
Future Enlargement of the EU
Financial, Technical and Legal Support for the SEECs
Conditioned by the post-conflict needsECHOOBNOVAPhareCARDSEARIPA
IPA
The Instrument for Pre-Accession Assistance (IPA) offers assistance to countries engaged in the accession process to the European Union (EU) for the period 2007-2013.
The aim of the IPA is to enhance the efficiency and coherence of aid by means of a single framework in order to strengthen institutional capacity, cross-border cooperation, economic and social development and rural development.
Pre-accession assistance supports the stabilisation and association process of candidate countries and potential candidate countries while respecting their specific features and the processes in which they are engaged.
To ensure targeted, effective and coherent action, the IPA is made up of five components, each covering priorities defined according to the needs of the beneficiary countries. Two components concern all beneficiary countries:
the “support for transition and institution-building” component, aimed at financing capacity-building and institution-building;
the “cross-border cooperation” component, aimed at supporting the beneficiary countries in the area of cross-border cooperation between themselves, with the EU Member States or within the framework of cross-border or inter-regional actions.
The other three components are aimed at candidate countries only:
the “regional development” component, aimed at supporting the countries' preparations for the implementation of the Community’s cohesion policy, and in particular for the European Regional Development Fund and the Cohesion Fund;
the “human resources development” component, which concerns preparation for participation in cohesion policy and the European Social Fund;
the “rural development” component, which concerns preparation for the common agricultural policy and related policies and for the European Agricultural Fund for Rural Development.
