The Charter and Candidate Countries: Old Acquis or New Burdens?
A Brief Excursus on Enlargement Conditionality
When dealing with accession conditionality,25 it should be borne in mind that the standard has substantially varied throughout the years: the first Member States to enter the EC had to comply with far less stringent requirements with respect to the new joining Parties.
The conditions for accessionwere never included in a legally binding document but have nevertheless become one of the most powerful instruments of EU foreign policy.26
Political conditionality – linked to the respect of human rights, democracy and the rule of law – has been the main benchmark in evaluating candidatures since the mid-1970s. During those years, three European countries (namely, Spain, Portugal and Greece), after the transition from an authoritarian regime to democracy, manifested their intention to accede to the EC. The European Council did not explicitly impose precise conditions on these candidatures, but limited itself to declare that respect for human rights and representative democracy were essential elements to acquire membership.27 The elaboration of a more complex and structured set of rules on accession became particularly urgent after the end of the Cold War, when a great number of States that had belonged to the Soviet block applied to join the EC.
The first document spelling out the scope of membership conditionality was drafted by the Copenhagen European Council in 1993.28 According to the resulting so-called “Copenhagen criteria”, each candidate country had to achieve:29 (a) stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (political criterion); (b) the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union (economic criterion); (c) ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union (acquis communautaire criterion).
The criteria which govern accession can be found in primary law since the 1997 Amsterdam Treaty. In this respect two provisions are noteworthy: on the one hand, Art. 6 (1) TEU states that “ [t]he Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”; on the other, Art. 49 TEU affirms that “ [any] European State which respects the principles set out in Art. 6 (1) may apply to become a memberof the Union. [. . .]. 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”30.
Unfortunately, no subsequent amendments provided further indication regarding the above mentioned conditions. This is most regrettable since the Copenhagen criteria lack in transparency leaving open to speculation crucial issues such as the notion of democracy, the scope of human rights or the set of requirements coming under the umbrella of the rule of law.
These shortcomings seem to have been acknowledged by the General Affairs Council in its Conclusions concerning the relations with the States of Former Yugoslavia of 1997 when it was agreed that in evaluating compliance with democratic principles, the following conditions would be verified: the existence of a representative government and of an accountable executive; the presence of a government and public authorities that act in accordance with the constitution and the law; the separation of powers (government, administration, judiciary); the holding of free and fair elections at reasonable intervals and by secret ballot.
Under the heading human rights and rule of law, the Council places freedom of expression, including independent media; right of assembly and demonstration; right of association; right to privacy, family, home and correspondence; right to property; the existence of effective means of redress against administrative decisions; access to courts and right to fair trial; respect for the principle of equality before the law and equal protection by the law; protection from inhuman or degrading treatment and arbitrary arrest. As to minorities, the document recognizes the right to establish and maintain their own educational, cultural and religious institutions, organisations or associations; the need to guarantee adequate opportunities to use their respective language before courts and public authorities as well as an adequate protection of refugees and displaced persons returning to areas where they represent an ethnic minority.31
It follows that the conditions for accession are flexible and mutable. They are basically defined on a case-by-case basis as the progress and monitoring reports regularly issued by the European Commission clearly indicate. Each candidate country is considered individually and independently from the others so that some of the requirements for the scrutiny by the Commission vary during the pre-accession phase.32
25.On conditionality, see E. Fierro, The EU’s approach to human rights conditionality in practice (New York, 2003).
26.M. Cremona, ‘Enlargement: A successful instrument of EU foreign policy?’, in T. Tridimas and P. Nebbia (eds.), European Union law for the twenty-first century: Rethinking the new legal order, vol. I (Oxford University Press, 2003) 268.
27.K. E. Smith, ‘The evolution and application of EU membership conditionality’, in M. Cremona (ed.), The enlargement of the European Union (Oxford University Press, 2003) at 109–110. See also M. Nowak, ‘human rights ‘conditionality’ in relation to entry to, and full participation in, the EU’, in P. ALSTON (ed.), The EU and human rights (Oxford University Press, 1999) 687; and M. Maresceau and E. Lannon (eds.) The EU’s enlargement and Mediterranean strategies: A comparative analysis (London, 2001).
28.Conclusions of the Presidency, Copenhagen European Council, 21–22 June 1993, SN 180/1/93.
29.On the Copenaghen criteria see also: D. Katz, ‘Les ‘critères de Copenhague’’, (2000)Revue du Marché Commun et de l’Union Européenne 483 and D. Kochenov, ‘Behind the Copenhagen Facade. The Meaning and Structure of the Copenhagen Political Criteria of Democracy and the Rule of Law’, (2004) 8 European Integration On-Line Papers 10. 30.To be sure, Art. O of the Maastricht Treaty stated that any European State could apply to become a member of the European Union.
31.See Annex, European Council Conclusions ‘on the principle of conditionality governing the development of the European Union’s relations with certain countries of Southern Europe’, EU Bull. 4-1997.
32.M. Maresceau, ‘Pre-accession’, in M. Cremona (ed.), The enlargement of the European Union (Oxford University Press, 2003) 9; and M. Maresceau and E. Montaguti, ‘The relations between the European Union and Central and Eastern Europe: A legal appraisal’, (1995) 6 Common Market Law Review 1328.