Monday, 4 February 2008

EU Treaty of Lisbon: New members

The intergovernmental conference (IGC 2007) was mandated to do the following (IGC 2007 Mandate, Council document 11218/07, point 16):

“In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI).”

Annex 1 to the Mandate is called Amendments to the EU Treaty, and under Title VI – Final provisions, point 9), it clarified:

“In Article 49, first subparagraph, insertion of a new last sentence, the second subparagraph remaining unchanged:

Article 49
Conditions of eligibility and procedure for accession to the Union

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 assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.”

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Not much room for creativity there, but we check what the IGC 2007 agreed on (OJ 17.12.2007 C 306/39), in addition to its reader-unfriendly proclivity:

57) The first paragraph of Article 49 shall be amended as follows:

(a) in the first sentence, the words ‘which respects the principles set out in Article 6(1) may
apply’ shall be replaced by ‘which respects the values referred to in Article 1a and is
committed to promoting them may apply’;

(b) in the second sentence, the words ‘It shall address its application to the Council, which
shall act unanimously’ shall be replaced by ‘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’; the word ‘assent’ shall be
replaced by ‘consent’ and the words ‘an absolute majority’ shall be replaced by ‘a majority’;

(c) the following sentence shall be added at the end of the paragraph: ‘The conditions of
eligibility agreed upon by the European Council shall be taken into account.’.

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The amended and consolidated Article 49 TEU has to be constructed, starting from the current Article 49 (latest consolidated version of the Treaty on European Union and the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/34 and 35):

Article 49

Any European State which respects the principles set out in Article 6(1) may apply to become
a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

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.

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Having inserted the IGC’s amendments we end up with the following consolidated Lisbon Treaty version of Article 49 TEU:

Article 49

Any European State which respects the values referred to in Article 1a 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.

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The pedantically inclined may have noticed a slight change of terminology compared to the IGC 2007 Mandate (and the present Article 49): EP ‘consent’ has replaced ‘assent’ and a ‘majority’ has taken the place of an ‘absolute majority’.

Otherwise the Heads of State or Government seem to have been true to their word, from start to finish.

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What did the European Convention have to say on membership in the draft Treaty establishing a Constitution for Europe?

We go to Article I-57, under Title IX Union membership (OJ 18.7.2003 C 169/21):

Article 57
Conditions of eligibility and procedure for accession to
the Union

1. The Union shall be open to all European States which respect the values referred to in Article 2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States' national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

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In the Treaty establishing a Constitution for Europe the member state governments signed up to the following Article I-58, under Title IX Union membership (OJ 16.12.2004 C 310/38):

Article I-58
Conditions of eligibility and procedure for accession to the Union

1. The Union shall be open to all European States which respect the values referred to in Article I-2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

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Strictly speaking, Article 49 of the current Treaty on European Union (TEU) only offers any European State which respects the EU’s principles the right to apply for membership. We have to assume that even minute changes of the wording have significance in areas as politically charged as the membership criteria.

The Convention made two changes:

First, it proposed that the EU ‘shall be open to all European States’. This is extremely close to a right of accession, given that the criteria for membership are fulfilled.

Second, the Convention raised the bar for accession.

The existing principles set out in Article 6(1) TEU are: The 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.

The ‘values’ might be construed to have a more profound meaning than the ‘principles’, and the Convention added a few aspects in its Article I-2 The Union's values: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.

Human dignity and equality in the first sentence, as well as pluralism, tolerance, justice, solidarity and non-discrimination in the second sentence widened the scope of the values and consequently the criteria for membership.

The second innovation was to require active promotion of the Union’s values together with the other member states.

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Going from the draft Constitutional Treaty to the Constitution we see that the IGC 2004 added about the European Parliament ‘which shall act by a majority of its component members’. The rest of the differences are technical.

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In part, the IGC 2007 went back to square one. Values and (active) promotion are retained, but there is no right to accede, only to apply for membership. The values referred to have expanded to take into account the rights of persons belonging to minorities (and the present connotations of ‘liberty’ may have led to the adoption of ‘freedom’).

In addition, the Reform Treaty brings the conditions of eligibility agreed upon by the European Council into the Treaty.

At the present time, these conditions of eligibility are the ones known as the Copenhagen criteria, adopted by the European Council 21-22 June 1993. According to the Conclusions of the Presidency (SN 180/1/93 REV 1):

“Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries.”

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To broach a topical issue: The expansion of membership criteria is not going to make Turkey’s or the other applicant states’ quest any easier, since many difficult questions like human dignity, equality and minority rights have entered the picture in the shape of values to be promoted, as well as the binding nature of the Copenhagen criteria.

On the other hand, the definition ‘European State’ has not changed one iota from the existing TEU, via the Convention and the Constitution to the Lisbon Treaty.

It would be absurd to contend that Turkey is geographically less European now than when it was accepted as an applicant country.

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An innovation retained from the Convention is the mandatory notification of the European Parliament and national parliaments of an application. In principle, the national parliaments have been officially seized of the matter only at the end of the process, when the accession Treaty has come up for ratification.


Ralf Grahn