Some Open Issues of the EU Enlargement Policy

Rado Bohinc
8 hours ago
10 min read

INTRODUCTION

Enlargement of the European Union (EU) is the process whereby new European states join the EU, after they have fulfilled a set of political and economic conditions. The processing of 10 CEE countries, the Baltic states and Cyprus was extremely intensive and involved a chapter-by-chapter scrutiny of progress in adopting the acquis communautaire. A total of 32 chapters had to be scrutinised, which was an enormous job for the political and administrative structures of a candidate country. In 1999 the European Parliament pointed out that Slovenia had the democratic structures, the rule of law, and had reached the economic conditions for accession laid down in Copenhagen. However, it was still not enough.The EU had to prepare for such a significant expansion as well. Its member states at that time had harmonised the Treaty of Nice, thus readying the EU for the extensive enlargement on May 1 2004. The ten countries became EU members on 1 May, but some areas of cooperation in the EU applied to some of the EU member states at a later date.^[1]

Immediately before joining the EU, Slovenia amended its constitution, namely Art. 3 a., and thereby created the constitutional basis for the transfer of a part of its sovereignty to the EU.

The accession process has been far from identical in all waves of EU enlargement. However, it is crucial that the accession approaches and procedures in future EU enlargement are based on the same principles and follow the same values, regardless of the geopolitical importance and urgency.

GENERAL NOTES ON THE EU ENLARGEMENT PROCESS

Political and economic conditions

The aim of EU enlargement is to promote European values and democratic concepts, free trade (free movement of goods, services, capital and people) and greater stability and prosperity in Europe. Only European states that respect EU democratic values and commit to promoting them may apply for EU membership.^[2]

The accession criteria, or Copenhagen criteria (named after the 1993 European Council meeting in Copenhagen) are the essential conditions candidate countries must satisfy to become an EU Member State. These are:

political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities
economic criteria: a functioning market economy and the capacity to cope with competition and market forces
administrative and institutional capacity to effectively implement the EU acquis (body of common rights) and ability to take on the obligations of EU membership

On the other side, the EU’s capacity to take in new members was also relevant for the process (EU absorption capacity).Enlargement also significantly shapes the EU; structural adaptation to the new composition of the membership is needed.

General notes on the accession process

The accession process begins after a state applies for EU membership and its request has been agreed to by all EU Member States. The opening of the formal accession negotiations also requires the agreement of all states. Negotiations prepare candidates for membership in terms of satisfying the Copenhagen criteria (the adoption of the established EU law and implementation of the reforms needed).

The terms and conditions for accession are incorporated into an accession treaty. The treaty needs the European Parliament’s consent and the Council’s unanimous approval before member states and the candidate country can sign it. After all the contracting parties have ratified the Accession treaty, the candidate becomes an EU Member State.

Accession of the Western Balkans^[3]

The EU is declaratively strongly committed to the EU perspective of the Western Balkans (Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Serbia, and Kosovo), with close links and cooperation with them in several important areas. The EU also provides substantial assistance and financial support to the region. However, things have not moved from the deadlock. Delays have so far been excused by the lack of preparation and reluctance of candidate countries, while it is in fact for geopolitical reasons. In the case of Ukraine and Moldova, however, it appears that the opposite is true.

EU enlargement to the Balkans takes too long, despite the repeated EU enlargement commitments. At the EU-Western Balkans Summit held in 2003 (more than 20 years ago) in Thessaloniki, the EU reaffirmed that the future of the Western Balkans is within the EU. In June 2022, EU leaders again expressed their full commitment to the EU membership perspective of the Western Balkans and called for acceleration of the accession process.

THE ACCESSION OF CEE AND SLOVENIA

Slovenian approximation steps to the EU

The Slovenian EU approximation story started with the Cooperation Agreement in 1993, followed by the membership application in 1996 and the Europe Agreement in 1997. For the latter, the amendment to Article 68 of the Slovenian Constitution was needed. The accession process with the ten applicant countries (CEE, the Baltic countries and Cyprus) formally started on 30 March 1998. The pre-accession strategy was imposed by the EU Commission, and on 31 March 1998 official accession negotiations began. Next, each of the 10 applicant countries, including Slovenia, put forward a national programme for adoption of the acquis communautaire, NPAA and the short- and medium-term priorities.

Accession negotiations were going on since April 1998, through a so-called screening process. (accession partnership). On 27 May 1999, the Slovenian government adopted the new version of the NPAA, in accordance with the Commission’s comments for the period 1999 to 2002. An analytical assessment (‘screening’) of various sections of the acquiscommunautaire closed negotiating chapters gradually.

On 13 October 1999 (at the Helsinki European Council) it was assessed that Slovenia had the democratic structures to safeguard the rule of law. As far as the economic criteria were concerned, a market economy existed, and Slovenia had maintained its macroeconomic stability. However, that was not enough; the areas were still highlighted where further effort was required, such as that the legislative process was too slow to ensure transposition of all the acquiscommunautaire.

Cooperation Agreement 1993; Membership Application 1996; Europe Agreement 1997

The legal and institutional framework for relations between Slovenia and the EU was established by a Cooperation Agreement. Negotiations for the conclusion of the agreement began in July 1992. Slovenia submitted its Membership Application on 10 June 1996, and on the same day signed a Europe Agreement with the EU — which entered into force on 1 February 1999 and replaced the existing Cooperation Agreement with immediate effect.

On 15 July 1997, the Europe Agreement was ratified by the Slovenian National Assembly after an amendment to Article 68 of the constitution had been adopted, making it possible, after a four-year transitional period, for foreigners to own real estate in Slovenia. The agreement took effect on 1 February 1999.

The Europe Agreement consists of three main sections (the political provisions, trade between the EU and Slovenia, and technical and financial assistance). The section on trade gave the priority to harmonising legislation related to the internal market, and establishment of a free-trade area between the EU and Slovenia for the next few years.

Accession process starts on 30 March 1998

On 12-13 December 1997, the Luxembourg European Council decided to launch the accession process on 30 March 1998 with the ten applicant countries of the CEE, Baltic countries and Cyprus. A European Conference was set up, bringing together the EU Member States and the countries eligible to join the EU (London 12.3.1998 and Luxembourg 5.12.1988).

The pre-accession strategy was drawn up by the Commission in consultation with the Council and the European Parliament pursuant to Article 308 of the TEC. The European Council decided to establish bilateral partnerships to bring the applicant countries up to the standards prevailing in the EU as quickly as possible.

As part of a new approach introduced by the Helsinki European Council, the other applicant countries had also started their accession negotiations. Conclusion thereof depended on full compliance with the three Copenhagen criteria.

The Accession Partnership, NPAA

The Commission drew up a partnership for each of the applicant countries, comprising priority action areas and financial resources to enable each applicant to implement the priorities — conditions for implementing the assistance. The Commission asked each applicant country to put forward a national programme for adoption of the acquis communautaireand NPAA, with a timetable for priority measures and details of the resources required. These documents were reviewed and adapted each year.

On 15 March 1998 the Commission put to the Council the short- and medium-term priorities. After concluding its regular report on 13 October 1999, the Commission also published its proposal for a Council decision on the new principles, priorities, interim objectives and partnership conditions for the accession of Slovenia.

Accession negotiation opened, screening 1998-2002

In Agenda 2000, which it presented on 15 July 1997, the Commission recommended that accession negotiations be opened with Slovenia — which got under way on 30 March 1998. Slovenia presented its National Programme for Adoption of the Acquis (NPAA) in March 1998. The Slovenian government adopted the new version of the NPAA, drawn up in accordance with the Commission’s comments, and incorporating the objectives for the period 1999 to 2002, on 27 May 1999.

In April 1998, an analytical assessment (‘screening’) of various sections of the acquis communautaire began, leading to substantial negotiations. The Commission appreciated the fact that objectives were properly identified in the amended NPAA. However, it criticised the Slovenian authorities for not clearly defining the arrangements and timetable for their implementation. The process of accession negotiations involved a chapter-by-chapter scrutiny of progress in adopting the acquis communautaire. A total of 32 chapters had to be scrutinised.

In the case of Slovenia (and the other ‘wave’ countries), ten out of 15 chapters were completed at the start and did not require further negotiation (research and science; teaching and education; culture; small businesses; company law; consumer and health protection; the customs union; external trade relations and telecommunications). At the Intergovernmental Conference in Brussels from 30 September to 4 November 1999 a further eight chapters were due for negotiation, including: economic and monetary union; the free movement of capital; social and employment policy; energy; free movement of services; transport; the environment; and taxation policy. The EU foreign ministers and those of some of the applicant countries met in Brussels on 7 December 1999 for a further round of negotiations.

According to the Slovenian authorities, the negotiations were to be concluded in late 2001 so that accession could take place on 1 January 2002. However, that did not happen.

Slovenia has the democratic structures to safeguard the rule of law, 1999

In its resolution of 15 April 1999 the European Parliament pointed out that Slovenia now had the democratic structures to safeguard the rule of law, and had reached a satisfactory level concerning the economic conditions for accession laid down in Copenhagen.

In 1999 the Commission published in its second report on 13 October, for the Helsinki European Council. The reports reviewed Slovenia’s effort to prepare for accession to the EU, and highlighted the areas where further effort was required. It was reported that Slovenia fulfilled the political Copenhagen criteria, although the legislative process was too slow to ensure that transposition of all the acquis communautaire would be completed. As far as the economic criteria were concerned, a market economy existed and Slovenia had maintained its macroeconomic stability, but the Commission report pointed out that the legal environment for business needed to be further modernised.

As regards the third criterion, namely the capacity to adopt the acquis communautaire, Slovenia had made considerable efforts in most areas of the acquis, such as the internal market, justice and home affairs. Slovenia had made progress as regards general reform of its public administration. However, appropriate supervisory and regulatory bodies still needed to be set up in the fields of public procurement, energy and telecommunications. That was the reason for not completing the negotiations, and the process continued despite good results in the negotiation of the great majority of chapters.

Treaty of Nice 2001, and the Treaty of Accession 2003

The Treaty of Nice reformed the institutional structure of the EU. A compromise was reached, which provided for a double majority of member states and votes cast. The treaty provided for an increase after enlargement of the number of seats in the European Parliament to 732.

The changes involved modification of the decision-making process, substantial reduction in the number of cases where the Council of the EU had to decide by an absolute majority, and adjustment of the weighting of votes of individual member states in the Council of the EU with a qualified majority. The powers of the President of the European Commission were also strengthened.

The Treaty of Accession 2003 was signed on 16 April 2003 in Athens, between the EU members and the ten acceding countries (in the 2004 enlargement of the EU). The text also amended the main EU treaties, including the qualified majority voting of the Council of the EU. It changed a number of points which were originally laid down in the Treaty of Nice. The treaty entered into force on 1 May 2004, resulting in enlargement of the EU by 10 states.

The transfer of the exercise of a part of sovereign rights; constitutional referendum

Slovenia had to amend the Constitution (Art. 3 a), and thereby created the constitutional basis for the transfer of a part of its sovereignty to an international organisation (EU).

The amended Article 3.a of the Constitution of Slovenia stipulates that Slovenia, with an international agreement, can transfer the exercise of a part of sovereign rights to international organisations, but not to any international organisation. The Constitution sets the condition that the exercise of a part of sovereignty can only be transferred to international organisations based on respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law (EU). The same constitutional rule with supplementary article 3a of the constitution also applies to entering a defence alliance with countries based on respect for these values (NATO).

In addition, the amended constitutional provision stipulates that before the ratification of such an international treaty, the National Assembly can call a referendum. On this basis, a referendum was held regarding both issues (EU and NATO) on March 23 2003, which was supported by a large majority of voters (89.64% for the EU and 66.05% for NATO).

CONCLUSIONS

Slovenian accession to the EU - as part of the EU enlargement by 10 countries of the CEE, the Baltic countries and Cyprus - began and ended in 10 years. It was not an easy process — however it was transparent, consistent and effective. The process has changed the Slovenian legislative landscape radically. It was a comprehensive formal process, which at the same time contributed to the gradual change of legal culture, inventing a new legal tradition very different from the previous one.

In terms of complexity, the accession process of the former socialist countries of the CEE and Baltic states stands out. It would be interesting to analyse the differences in approaches and complexity between the latter and the waves, over the years 1973 (Denmark, Ireland and the United Kingdom), 1981 (Greece), 1986 (Portugal and Spain) and 1995 (Austria, Finland and Sweden). A comparison between these processes and the current enlargement of the EU with the countries of the Western Balkans and especially Turkey (where proceedings have dragged on for decades) on the one hand, and Ukraine and Moldova (where everything is supposed to happen quickly), on the other would be fascinating.

^[1] These were: Schengen Area (Cyprus) and Eurozone (Czech Republic, Hungary, Poland)

^[2]Successive waves of EU enlargement — 1973: Denmark, Ireland and the United Kingdom; 1981: Greece; 1986: Portugal and Spain; 1995: Austria, Finland and Sweden; 2004: The Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia; 2007: Bulgaria and Romania; 2013: Croatia

^[3]In addition to the Western Balkans, the current candidate countries are also: Türkiye, Ukraine, Moldova, and Georgia.