Tài liệu EU ENLARGEMENT AND THE CONSTITUTIONS OF CENTRAL AND EASTERN EUROPE pdf

CONSTITUTIONS OF CENTRAL ANDEASTERN EUROPE In the wake of the EU’s greatest enlargement, this book explores the adaptation of the constitutions of Central and Eastern Europe for mem- ber

CONSTITUTIONS OF CENTRAL AND

EASTERN EUROPE

In the wake of the EU’s greatest enlargement, this book explores the adaptation of the constitutions of Central and Eastern Europe for mem- bership in the European Union In response to the painful past, these new constitutions were notably closed to the transfer of powers to international organisations, and accorded a prominent status to sovereignty and inde- pendence A little more than a decade later, the process of amending these provisions in view of the transfer of sovereign powers to a supranational organisation has proved a sensitive and controversial exercise This book analyses the amendments against the background of comparative experi- ence and theory of sovereignty, as well as the context of political sensi- tivities, such as rising euroscepticism ahead of accession referendums It concludes with a broader inquiry into the role and rationale of the national constitutions in the process of European integration The book also con- siders the implications of the European Constitution, in the framework of the debate on European constitutionalism and post-national governance anneli albi is a lecturer in European Law at the University of Kent She obtained her Ph.D at the European University Institute in Florence, where her research focused on the adaptation of Central and Eastern Euro- pean constitutions for EU membership In 2003–04, she was a General Rapporteur of the Asser Institute and the Netherlands Foreign Ministry MATRA multicountry project ‘The Impact of Accession on the National Legal Orders of Candidate Countries’.

CAMBRIDGE STUDIES IN EUROPEAN LAW

AND POLICYThis series aims to produce original works which contain a critical analysis of the state

of the law in particular areas of European Law and set out different perspectives and suggestions for its future development It also aims to encourage a range of work on law, legal institutions and legal phenomena in Europe, including ‘law in context’ approaches The titles in the series will be of interest to academics; policymakers; policy formers who are interested in European legal, commercial, and political affairs; practising lawyers including the judiciary; and advanced law students and researchers.

Joint Editors

Professor Dr Laurence Gormley

Rijksuniversiteit Groningen, The Netherlands

Professor Jo Shaw

University of Edinburgh

Editorial advisory board

Professor Richard Bellamy, University of Reading; Ms Catherine Barnard, University

of Cambridge; Professor Marise Cremona, Queen Mary College, University of London; Professor Alan Dashwood, University of Cambridge; Professor Dr Jacqueline Dutheil

de la Roch`ere, Universit´e de Paris II, Director of the Centre de Droit Europ´een, France;

Dr Andrew Drzemczewski, Council of Europe, Strasbourg, France; Sir David Edward KCMG, Q.C former Judge, Court of Justice of the European Communities, Luxem- bourg; Professor Dr Walter Baron van Gerven, Emeritus Professor, Leuven & Maastricht and former Advocate General, Court of Justice of the European Communities; Professor Daniel Halberstam, University of Michigan, USA; Professor Dr Ingolf Pernice, Director

of the Walter Hallstein Institut, Humboldt Universit¨at, Berlin; Michel Petite, Director General of the Legal Service, Commission of the European Communities, Bruxelles; Professor Dr Sinisa Rodin, University of Zagreb; Professor Neil Walker, University of Aberdeen and EUI, Fiesole.

Books in the series

EU Enlargement and the Constitutions of Central and Eastern Europe

Anneli Albi

Market Freedom and Social Rights in the European Economic Constitution

Stefano Giubboni

EU ENLARGEMENT AND THE CONSTITUTIONS OF

CENTRAL AND

EASTERN EUROPE

ANNELI ALBI

University of Kent

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

Information on this title: www.cambridge.org/9780521845410

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

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List of tables page viii

Table of treaties, laws and other instruments xvii

2 Constitutional adaptations in the ‘old’ Member States 9

3 Some idiosyncrasies of CEE constitutions 18

Prominence of the constitutions in CEE legal orders 22

4 Constitutional issues in the pre-accession period 36

Extent of harmonisation and adoption of EU obligations 44

Pre-accession adaptations in the light of sovereignty and legitimacy 56 Issues of democratic deficit in the pre-accession adaptations 61

5 Revision of CEE constitutions for EU membership 67

Referendum experience: frequent and unsuccessful 138

Accession referendums: procedural ‘manoeuvres’ 149 Implications for the EU treaty amendment procedure 159

8 Membership of NATO and other international

Ultimate arbiter debate and CEE Constitutional Courts 170 Towards a ‘European constitutional order’? 175

10 Implications of the European Constitution 179EU’s constitutional reform and involvement of candidate countries 179

National constitutional limits to integration 183

‘Constitutional’ elements of the European Constitution 186 Changes consolidating the position of Member States 193

Incremental transition towards sovereignty of ‘the peoples

Epilogue: ‘Taking constitutions seriously’ in the process

TABLES

The enlargement of the European Union on 1 May 2004 to bring in tennew Member States, eight of which are in Central and Eastern Europe,marked a historical shift in the EU No longer could it be seen as primarily

a creature of Western Europe (plus elements of Southern Europe) On thecontrary, the tumultuous events which accompanied the ending of theCold War, including the break-up of several federations (Soviet Union,Yugoslavia and Czechoslovakia) opened the way for the EU to becomesomething much closer to a pan-European polity

Accession involves constitutional change, both on the part of the EUand on the part of the acceding state or states This study by Anneli Albicomprises the first full length study of the impact of accession upon theconstitutions of the acceding states Although the perspective is primarily

a bottom-up one, looking at the constitutional change in terms of whatwere essentially ‘new’ and relatively ‘closed’ constitutions of the post-Communist era, Albi also brings in constitutional change – EU-style –

in the form of the Constitutional Treaty signed in Rome on 29 October

2004, and due in turn for ratification in each of the twenty-five MemberStates It is clear that change and adjustment, including formal constitu-tional amendment but also involving the role of numerous judicial actors,especially constitutional courts, will continue for the foreseeable future

as the EU enters the critical post-enlargement stage

This book is the first in a new CUP series, Cambridge Studies in pean Law and Policy, edited by Laurence Gormley of the Rijksuniver-siteit Groningen and Jo Shaw of the University of Edinburgh Albi’s studyresponds amply to the series’ aims, namely to produce original works inEnglish which contain a critical analysis of the state of the law in a partic-ular area of European Law understood in its widest sense and set out theperspectives and suggestions for its future development, and to encourage

Euro-a rEuro-ange of work on lEuro-aw, legEuro-al institutions Euro-and legEuro-al phenomenEuro-a in Europe,including ‘law in context’ work as well as more doctrinally focused expos-itory work Of critical importance to Albi’s study are the key political

ix

x series editors’ preface

markers of sovereignty and democracy, in the latter case in the form ofthe referendums which were held on accession in each of the new Member

States Albi’s approach – like many on the EU – is to treat it as a sui generis

polity, which cannot simply be assimilated to national or internationalmodels However, the interest of the book lies in the unavoidable chal-lenge of statist concepts and ideas, and whether they continue to have animportant role to play in post-enlargement Europe and in an increasinglyglobalised and interconnected world

Laurence Gormley

Jo Shaw

4 March 2005

I am grateful to the publishers for their kind permission to incorporatematerial from the following articles:

Hart Publishing Ltd for sections from A Albi, ‘Post-modern VersusRetrospective Sovereignty: Two Different Sovereignty Discourses in the

EU and Candidate Countries?’ in N Walker (ed.), Sovereignty in Transition

Candidate Countries: Impact on EU Treaty Amendment Procedure’ in

pp 57–76

Sweet and Maxwell Ltd for sections from A Albi and P Van Elsuwege,

‘EU Constitution, National Constitutions and Sovereignty: An

(forthcoming)

Kluwer Law International for sections from A Albi ‘ “Europe” Articles

in the Constitutions of Central and Eastern European Countries’ (2005)

Common Market Law Review pp 399–423.

xi

European Court of Justice Case 16/62, Van Gend en Loos [1963] ECR 1118

Case 6/64, Costa v ENEL [1964] ECR 585118

Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125170

Euratom Ruling 1/78 [1978] ECR 2151118

Case 106/78, Simmenthal [1978] ECR 629170

Case 270/80, Polydor and RSO Records [1982] ECR 22940

Case 294/83, Les Verts [1986] ECR 1339187

Case 152/84, Marshall [1986] ECR 72353

Case 12/86, Demirel [1987] ECR 371938

Case C-192/89, Sevince [1990] ECR I-346144

Case 18/90, Kziber [1991] ECR I-19940

Case C-159/90, Grogan [1991] ECR I-4685177

Case C-179/90, Merci Convenzionali Porto di Genova [1991] ECR I-588954

Case C-295/90, Parliament v Council [1992] ECR I-419355

Opinion 1/91, EEA [1991] ECR I-607940

Case C-168/91, Konstantinidis [1993] ECR I-1191174

Case C-450/93, Kalanke [1995] ECR I-3051177

Case C-262/96, S¨ur¨ul [1999] ECR I-268538

Case C-285/98, Tanja Kreil v Germany [2000] ECR I-6917

Case C-63/99, Gloszczuk [2001] ECR I-636937

Case C-235/99, Kondova [2001] ECR I-643737

Case C-257/99, Barkoci and Malik [2001] ECR I-655737

Case C-268/99, Jany [2001] ECR I-861537, 39

Case C-353/99, Hautala, Opinion of Advocate-General Leger of 10 July 2001, [2001]

ECR I-9565 188

Joined Cases C-20 and 64/00, Booker Aquaculture and Hydro Seafood, Opinion of

Advocate-General Mischo of 20 September 2001, [2003] ECR I-7411 188

Case C-162/00, Pokrzeptowicz-Meyer [2002] ECR I-104937, 39

xii

Permanent Court of International Justice

S.S Wimbledon, PCIJ Ser A No 1 (1923) 259

Bulgaria

Constitutional Court Decision No 7, 2 July 1992, on the interpretation of articles

85(3) and 148(1.4) of the Constitution, Durzhaven Vestnik 56/9244, 109, 172 Constitutional Court Decision No 5/99, 22 April 1999, on the passage of NATO aircraft, summary in English at www.infotel.bg/juen/resh/summaries99.htm 167

Constitutional Court Decision No 6/99, 3 May 1999, on the Agreement between Bulgaria and NATO regarding Transit of NATO Aircraft, summary at

www.infotel.bg/juen/resh/summaries99.htm 167

Constitutional Court Decision No 8/99, 16 June 1999, on Cooperation Agreement with Turkey in Energy Sector, summary in English at www.infotel.bg/juen/resh/ summaries99.htm 173

Constitutional Court Decision of February 2003, on authorisation for fulfilling obligations under NATO 167

Constitutional Court Decision of 10 April 2003, on the mode of constitutional amendment 108

Czech Republic

Constitutional Court, Decision No 19/93, on Lawlessness of the Communist Regime

(1997) 4 East European Case Reporter of Constitutional Law 149117

High Court of Olomouc, Decision 2A6/96, Skoda 54

Constitutional Court, Decision III.US 31/97–35, Skoda 54

Denmark Supreme Court, Carlsen v Rasmussen, judgment 6 April 1998, [1999] CMLR 855170,

174, 184, 185

Estonia

Constitutional Review Chamber, Decision No III-4/A–5/94, 30 September 1994,

on the constitutionality of Property Law Enforcement Act, in English at www.nc.ee/english 55

xiv table of cases

Constitutional Review Chamber, Dissenting Opinion of R Maruste to the Decision

No 3-4-1-3-97, 24 March 1997 on seafarers’ passports, in English at

www.nc.ee/english 55

Constitutional Review Chamber, Decision No 3-4-1-1-98, 5 February 1998, on Language Law, in English at www.nc.ee/english 134

Constitutional Review Chamber, Concurring Opinion of R Maruste to the Decision

No 3-4-1-4-98, 27 May 1998, in English at www.nc.ee/english 55

Constitutional Review Chamber, Vilu and Estonian Voters Union, Decision

No 3-4-1-11-03 of 24 September 2003, in Estonian at www.nc.ee 92, 156

Constitutional Review Chamber, Kulbok, Decision No 3-4-1-11-03 of 29 September

2003, in Estonian at www.nc.ee 92, 155, 196

France Constitutional Council, Maastricht, Decision No 92-308 DC, 9 April 199215, 185

Germany Constitutional Court, Solange I, BVerfGE 37, 271 (1974)170, 174

Constitutional Court, Solange II, BVerfGE 73, 378 (1986)170, 174

Constitutional Court, Brunner, BVerfGE 89, 155 (1993), [1994] CMLR, 57121, 130,

135, 170, 174, 175, 183–5, 186, 191, 197, 198, 203, 209

Hungary Constitutional Court, Resolution No 2/1993 (I.22), (1996) 3 East European Case Reporter of Constitutional Law 26117

Constitutional Court, Decision No 4/1997 (I.22) AB (ABH 1997, 41) 173

Constitutional Court, Decision No 52/1997, on referendums, reproduced in

L Solym and G Brunner (eds), Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Michigan University Press, 2000),

Ireland Supreme Court, Crotty v An Taoiseach [1997] IR 71311

Italy Constitutional Court, Frontini, Decision No 183, 1973170

Constitutional Court, Granital, Decision No 170, 1984170

Latvia

Constitutional Court, Decision No 04-02(99) of 6 July 1999 172

Constitutional Court, Dissenting Opinions of Justices A Endzins, J Jelagins and

A Usacka in Case No 2000-03-01, on compatibility of the Saeima Election Law with the Constitution and the International Covenant on Civil and Political Rights 55

Constitutional Court, Decision No 2001-04-0103, 21 December 2001, on spelling names in Latvian, in English at www.riga.lv/minelres/NationalLegislation/ Latvia/Latvia.ConstCourt2001.English.htm 134

Lithuania

Constitutional Court, Decision No 8/95 on the constitutionality of Law on

International Treaties, (1997) 4 East European Case Reporter of Constitutional Law 25444, 173

Constitutional Court, Decision No 14/98, 21 October 1999, on spelling names in Lithuanian, in English at www.lrkt.lt/1999/n9a1021a.htm 134

Constitutional Court, Decision of 9 December 1998, on the constitutionality

of the death penalty, in English at www.Irkt.lt/1998/n8al209a.htm 54

Constitutional Court, Decision of 6 October 1999, on the constitutionality of the Telecommunications Law, in English at www.lrkt.lt/1999/n9a1006a.htm 54 Constitutional Court, Decision of 18 October 2000, on the constitutionality of the Law

on the Reorganisation of the Joint-stock Petrol Companies, in English at www.lrkt.lt/2000/r001018.htm 54

Constitutional Court, Decision of 5 February 2002, on the constitutionality of the Law

on Higher Education, in English at www.lrkt.lt/2002/r020205.htm

54

Constitutional Court, Decision of 14 March 2002, on the constitutionality of the Law

on Pharmaceutical Activities, in English at www.lrkt.lt/2002/r020314.htm 54

xvi table of cases

High Administrative Court, Case NSA I SA/Po 3057/98 1999.12.29 wyrok NSA

U N I SA/Po 3057/98 ONSA 2001/1/34, on Protocol No 4 of the Europe Agreement 42, 43

Constitutional Tribunal, Case K.27/99, 2000.03.28 wyrok TK U K 27/99 OTK 2000/2/62, on different retirement age for men and women 53

Constitutional Tribunal, Decision of 27 May 2003, on referendum turnout 152

Romania

Constitutional Court, Decision No 356, September 2003 107

Constitutional Court, Decision of 23 October 2003, on constitutional amendment referendum 156

Slovakia

Constitutional Court, Decision No 26/97, II US 31/97, summary in English at www.concourt.sk/A/a.index.htm

Constitutional Court, Decision No 95/99, on the Protection of the Right Guaranteed

by an International Treaty, II US 91/99, summary in English at

www.concourt.sk/A/a.index.htm 172

Slovenia

Constitutional Court, Decision No RM-1/97, 5 June 1997, Uradni list RS, No 40/97,

on Europe Agreement, in English at www.us-rs.si/en 73, 74, 116, 172, 173

European Union

Accession Partnerships 9, 45–6, 48, 50

Agenda 2000: For a Stronger and Wider Union7, 45, 46, 47, 50, 109

Agreement of the European Economic Area 48, 52, 60, 66

art 6 52

Charter of Fundamental Rights and Freedoms 188, 192, 200

Decision 2/96 96/652 of the EC-Hungary Association Council, 6 November 1996 on the implementation of competition rules 56

Directive 76/207/EEC on equal treatment

art 5 53

Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services 53

Directive 90/366/EEC on the right of residence for students 55

Directive 90/388/EEC on competition in the markets for telecommunications services 54

Directive 98/10/EC on the open network provision to voice telephone and on universal service for telecommunications 54

Draft Treaty Establishing a Constitution for Europe (CONV 850/03, 18 July 2003) 117,

xviii table of treaties, laws and other instruments

xx table of treaties, laws and other instruments

White Paper, Preparation of the Associated Countries of Central and Eastern Europe for Integration into the Internal Market of the Union

6, 45, 48

International treaties and instruments

European Convention on Human Rights and Fundamental Freedoms 1950 169 North Atlantic Treaty 163–8

Vienna Convention on the Law of Treaties 172

xxii table of treaties, laws and other instruments

xxiv table of treaties, laws and other instruments

xxvi table of treaties, laws and other instruments

xxviii table of treaties, laws and other instruments

xxx table of treaties, laws and other instruments

Law on National Public Initiative and Referendums 1998 141

Latvia

Declaration on the Renewal of Independence 1990 22, 98

Declaration on the Sovereignty of the Latvian State 1989 21, 29

Law on International Treaties 1994

art 13 97, 172

Law on Public Referendums and Legislative Initiatives 1994 145

Law on the Constitutional Court 1996 97

Bull Bulletin

CMLR Common Market Law Reports

CEE Central and Eastern Europe

ECHR European Convention on Human Rights and Fundamental Freedoms ECJ European Court of Justice

ECR European Court Reports

ECSC European Coal and Steel Community

EEA European Economic Area

EEC European Economic Community

EFTA European Free Trade Area

EMU Economic and Monetary Union

EUI European University Institute

GNA Grand National Assembly (in Bulgaria)

IGC Intergovernmental Conference

NATO North Atlantic Treaty Organisation

OJ Official Journal of the European Communities

OSCE Organisation for Security and Co-operation in Europe

QMV qualified majority voting

On 1 May 2004, the European Union embarked on a historic and in manyrespects unprecedented expansion It admitted ten new countries, pre-dominantly from Central and Eastern Europe (CEE) which, for half acentury, had been separated by the Iron Curtain One of many aspectsthat make this enlargement special is that the acceding countries regainedtheir sovereignty only a little more than a decade ago In response to apainful past, the new constitutions of Central and Eastern Europe accord

a prominent status to sovereignty and independence, and were notablyclosed to the transfer of powers to international organisations In order

to join the European Union (EU), these constitutions therefore needed to

be ‘opened up’, and the countries engaged into a major process of tutional revision to enable the transfer of a part of their sovereignty to ahighly integrated supranational organisation This proved to be a sensi-tive and controversial exercise, not least because unlike previous enlarge-ments, these countries joined at a time when the EU has been engaged in

consti-a mconsti-ajor constitutionconsti-al reform involving on occconsti-asions federconsti-al undertones.This book explores the amendments against the background of compar-ative experience and theory of sovereignty, as well as in the context ofpolitical sensitivities, such as rising euroscepticism ahead of accessionreferendums It also undertakes a broader inquiry into the role and ratio-nale of the national constitutions in the process of European integration,

as well as exploring the implications of the European Constitution.The book is divided into ten chapters It starts by outlining the back-

the ‘old’ Member States in adapting their constitutions to the demands of

EU membership, in order to provide a point of reference to the

of the new constitutions of Central and Eastern Europe: their protectivestance towards sovereignty, and their detailed and up-to-date characterand prominent role in CEE legal orders These features set the contextfor the discussion of constitutional developments regarding European

1

2 introduction

adaptations, which usually have been addressed in terms of technicalities

of harmonisation and negotiations, will be explored through the broaderlens of sovereignty and legitimacy Showing that the legislative activity

of CEE countries in the preceding years has largely been dominated bytaking over EU legislation, the chapter draws attention to the paradoxthat the candidate countries appeared to regain some of their sovereigntyupon accession, as they started to participate in the EU’s decision-making

Agree-ment Decision of the Hungarian Constitutional Court, where judicialharmonisation during the pre-accession period was found to require aprior constitutional amendment

constitutional amendment debates in individual countries In order toget a full feel of the factors that influenced the outcome of the amend-

discusses the sensitivities surrounding the then imminent accession endums These included the popular sentiments about the delegation ofsovereignty, widespread euroscepticism in a number of candidate coun-tries and previous experience with invalid referendums resulting frominsufficient turnout rates In order to avoid exacerbating the situation,

refer-it was important to keep the constrefer-itutional amendments to a minimum,

as a wider range of amendments pertaining to the EU’s effects uponsovereign governance could have become a dangerous tool in the hands

of eurosceptic movements Besides the shadow of accession referendums,the amendments were also influenced by the constitutional theory in the

consti-tutional theory in Central and Eastern Europe has been underpinned bythe traditional paradigm of sovereign nation-state, and the EU has untilrecently been portrayed as an international organisation Concluding that

as a result of the above factors, the amendments in the CEE constitutions

relates to the rationale of constitutions, in the light of the debate about a

‘European deficit’ in the constitutions of the ‘old’ Member States

membership in other international organisations This will complementthe overall discussion of EU membership by offering a point of compar-ison with constitutional experiences in organisations of more traditionalnature, such as NATO

The penultimate chapter thereafter explores the role of the tional courts of the accession countries Given that constitutional chal-lenges to the supremacy of EU law have mainly originated from thosecountries that have a constitutional court, the chapter assesses how theadvent of new ‘activist’ constitutional courts may affect the old disputeover who is the ultimate judicial arbiter in the EU – the European Court

constitu-of Justice (ECJ) or the national constitutional courts

The final chapterundertakes an analysis of the broader implications

of the European Constitution for national constitutions and sovereignty.The European Constitution will be assessed in the light of constitutionalboundaries set to European integration by the highest national courts,

especially by the German Constitutional Court in the Maastricht decision.

Taking a post-national approach to the notion of constitution, the chaptercontends that the new basic document has a constitutional nature, and,combined with previous steps of integration, it appears to strengthen thecase for revising the concept of sovereignty

The text in principle covers events occurring up to the day of sion, 1 May 2004, but on occasions some subsequent developments will

acces-be mentioned, including the final changes to the European Constitutionmade by the Intergovernmental Conference in June 2004 It should benoted at the outset that the book deals with the eight accession countries

of Central and Eastern Europe – Poland, Hungary, the Czech lic, Slovakia, Slovenia, Estonia, Latvia and Lithuania In addition, it willinclude Romania and Bulgaria, the two candidate countries which startedaccession negotiations simultaneously with the other applicants but areexpected to join in 2007 at the earliest The two remaining accessioncountries, Malta and Cyprus, are not dealt with in this book due to theirdifferent constitutional background

Repub-The book is based on the author’s doctoral thesis, which was defended

at the European University Institute in Florence in 2003 I would like

to express my gratitude to everyone who has provided me insightfulcomments, general guidance and/or information in different phases of

my research for this book In particular, I am grateful (in alphabeticalorder) to Ruxandra Adam, Giuliano Amato, Rainer Arnold, Miriam Aziz,Esmeralda Balode, Stanislaw Biernat, Neil Brennan, Maja Brkan, ArnisBuka, Grainne De Burca, Per Cramer, Jeno Czuczai, Victor Duculescu,Peter Van Elsuwege, Mark Jeavons, Michael Gallagher, Daniela Gregr,Solvita Harbacevica, Christophe Hillion, Irmantas Jarukaitis, AlfredKellermann, Juhani Kortteinen, Julia Laffranque, Susan Millns, Andrea

4 introduction

Ott, Jenia Peteva, Stephen Pethick, Tommi Ralli, Bernard Ryan, VilenasVadapalas, Vaidotas Vaiˇcaitis, Wojciech Sadurski, Jo Shaw, Laine Skoba,Primos Vehar, Neil Walker, Bruno De Witte, Jiri Zemanek, Jan Zielonkaand Jacques Ziller I would also like to thank Elizabeth Davison, MaryLeighton, Melissa Macbeth, Jane O’Regan, Finola O’Sullivan and others

at CUP for their contribution in the preparation of this book

Overview of the accession process

The European Union’s enlargement that took place on 1 May 2004 is in

outnum-bers previous enlargements – twelve countries were in the process of sion negotiations, and ten countries have joined: Poland, Hungary, theCzech Republic and Slovakia from the so-called Vishegrad block; Estonia,Latvia and Lithuania from the Baltic region; Slovenia from the formerYugoslavia; and Malta and Cyprus from the Mediterranean In previousrounds of enlargement, up to three countries have joined at a time: theUnited Kingdom, Ireland and Denmark in 1973; Greece in 1980; Portugaland Spain in 1986; and Austria, Sweden and Finland in 1995 Further,this enlargement has immense political significance as ‘a reunification of

countries that had suffered under the Soviet yoke, and bolster the zone ofpolitical stability and security in Europe Unlike past enlargement prac-tice, a pre-accession process of ‘unprecedented length and complexity’was designed, involving a sophisticated set of pre-accession instruments,

For the CEE accession countries, membership of the European Union,along with joining NATO, has formed the main foreign policy goal sincethe breakdown of the Communist regime Although in the early years

1 See on enlargement e.g M Cremona (ed.), The Enlargement of the European Union (Oxford

University Press, 2003); A Ott and K Inglis (eds.), Handbook on European Enlargement

(T M C Asser Press, The Hague, 2002); C Hillion (ed.), EU Enlargement: A Legal Approach

(Hart, Oxford, 2004); H Grabbe and K Hughes, Eastward Enlargement of the European

East Central Europe and the European Union: From Europe Agreements to a Member Status

(Nomos, Baden-Baden, 1997); S Nello and K Smith, The European Union and Central

M Maresceau (ed.), Enlarging the European Union: Relations Between the EU and Central

2 M Cremona, ‘Introduction’ in Cremona, Enlargement of the European Union, p 2.

5

6 overview of the accession process

EU membership was not a self-evident path, and alternative ships, such as forming an economic area or a loose form of confedera-tion, were offered by the EU’s leaders, the CEE countries insisted on theprospect of full membership in order to avoid remaining in a geopolitical

relation-‘grey zone’ The prospect of enlargement was ultimately opened in theCopenhagen Summit of the European Council in June 1993 In that sum-mit, a threefold set of criteria, widely known as the ‘Copenhagen Criteria’,

requir-ing demonstration of stability of institutions that guarantee democracy,rule of law, human rights and the protection of minorities Secondly, there

is the economic criterion, under which a country must be a functioningmarket economy, able to cope with competitive pressures and marketforces within the EU The third was a legal criterion, according to whichthe country must be able to take on the obligations of membership, that

is harmonise its national law with more than 80,000 pages of the so-called

acquis, the entire body of Community law The possibility of accession

was further defined in Article O of the Maastricht Treaty (TEU), whichprovides that ‘any European State may apply to become a member of theUnion’

Based on Article O TEU, Hungary and Poland opened the chain ofsubmitting accession applications in the spring of 1994, followed in thenext couple of years by the other countries The preparations for accessionstarted with a comprehensive ‘screening’ of the national legislation with

regard to its compatibility with EU acquis This was followed by a gigantic

task of harmonisation (sometimes termed approximation) of national lawwith EU law A set of ‘pre-accession instruments’ or so-called ‘conditional-ity documents’, including the White Paper and the Accession Partnerships,were developed by the EU to assist the countries in their adaptations, pro-viding at the same time a basis for the Commission’s supervision over themeeting of the obligations Since 1997, the Commission regularly assessedthe process of harmonisation in its annual Progress Reports It is inter-esting to note that the pre-accession strategies were specifically designedfor the eastward enlargement According to the Commission, these areunnecessary should, for instance, Switzerland or Norway want to become

4 Bull EC 6–1993, Pt I.12–13.

5 See European Commission, 1999 Composite Paper, Reports on Progress Towards Accession

by Each of the Candidate Countries, COM (1999)500 final, 13 October 1999, p 2, cited in

M Maresceau, ‘Pre-Accession’ in Cremona, Enlargement of the European Union, p 11.

The central basis of the relationships between the EU and the CEEcandidate countries in the pre-accession period has lain in the Associ-

established an association between the EU and individual countries, andaimed to help the countries to achieve their goal of EU membership.Initially designed by the Commission as an alternative to accession, theEurope Agreements gradually evolved towards the main vehicle for acces-sion The Agreements, alongside the pre-accession instruments and thecomplex process of legal adaptations, will be explored in more detail in

In July 1997, the Commission recommended in its Opinions attached

to the Agenda 2000 to commence accession negotiations with five CEE

countries – Hungary, Poland, the Czech Republic, Slovenia and Estonia –

as well as with Cyprus Although none of the Central and EasternEuropean applicants were found to fully satisfy the Copenhagen Criteria,the Commission was of the view that the selected countries would be able

to meet the conditions in the medium term The invitation was confirmed

by the Luxembourg European Council, after which the negotiations wereformally opened on 30 March 1998 under the UK Presidency The sec-ond round of countries were invited to join the accession negotiations

in December 1999 in the Helsinki European Council; the negotiationswere opened in February 2000 This group consisted of Slovakia, Latvia,Lithuania, Romania and Bulgaria, as well as Malta In the course of acces-sion negotiations, which were structured along thirty-one so-called ‘nego-tiation chapters’, the terms of adoption, implementation and enforcement

of the acquis were agreed, as well as exceptions and transition periods.

In October 2002, the European Commission recommended to admit

to the EU eight candidate countries from CEE, plus Cyprus and Malta.Bulgaria and Romania were expected to achieve their EU-readiness as

of 2007 onwards Following Ireland’s approval of the Nice Treaty in thenotorious second referendum in October 2002, the European Councilannounced in its Brussels Summit the biggest enlargement in the EU’s his-tory The Accession Treaties were signed on 16 April 2003 in the EuropeanCouncil Summit in Athens, and were then submitted to the Member Statesand to the candidate countries for ratification In the latter, the ratification

6 Europe Agreement with Hungary (OJ 1993, L347/1), Poland (OJ 1993, L348/1), Romania (OJ 1994, L357/1), Bulgaria (OJ 1994, L358/1), Slovakia (OJ 1994, L359/1), the Czech Republic (OJ 1994, L360/1), Latvia (OJ 1998, L26), Lithuania (OJ 1998, L51), Estonia (OJ

1998, L68) and Slovenia (OJ 1999, L51).