Article 48 of the Treaty on European Union has found much favour among anti-Europeans lately. Amendments to the treaties have to be made by common accord and they have to be ratified by all the member states in accordance with their respective constitutional requirements.
Team spirit and team play are essential if such a rickety organisation is to function even half decently.
If the road of political blackmail, divisiveness and disruption is chosen, the treaties offer plenty of opportunities to exercise the liberum veto, the blocking potential of the unanimity rule.
One of these is enlargement. The European Union has by far outgrown its institutional set-up, if the aim is an EU able to defend the interests of its citizens in a globalising world.
Adding to the membership would aggravate the problem. If institutional reform is blocked, it is hardly illogical to scrutinise the provisions on enlargement.
This is what Article 49 of the Treaty on European Union (TEU) has to say on the matter (latest consolidated version of the treaties, published in the Official Journal of the European Union 29.12.2006 C 321 E/34–35):
Article 49 TEU
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.
Any European state which respects the fundamental aims of the European Union (as subsequently elaborated by the so called Copenhagen criteria) can apply for EU membership.
Nowhere is there any mention of a subjective right for an applicant to be admitted.
On the contrary, the hurdles abound:
a) The Commission has to give its opinion, which can be unfavourable.
b) The Council shall act unanimously, giving each member state government a veto.
c) The European Parliament has to give its prior assent, meaning a majority can refuse.
d) The conditions of accession have to be agreed, in great detail, by all the member states and the applicant, offering a basket of items to wreck the deal.
e) Each member state has to ratify the accession treaty according to its constitutional requirements, giving each member state parliament an opportunity to prevent membership.
f) Some member states’ constitutions may be flawed enough to enable a president to postpone or refuse signing the ratification bill or act, despite parliamentary approval.
g) Some member states might have or institute a national referendum on accession, offering the local electorate a chance to vent any frustrations it may feel at the moment.
Legally, further enlargement of the European Union may be possible with the necessary adjustments to the treaties.
But legally, it does not matter how pigheaded and egoistic any potential refusal is. It may result from total lack of cooperative will and solidarity, from corruption or from outside influences. Any rejection is legally binding, according to the rule of liberum veto, this great Polish export product.
In fact, accession is almost the exact mirror image of treaty amendment.
The consequences are political. In a system as dependent on trust and team-play as the European Union, the standing of an unreasonable partner may suffer and its chances of coalition-building diminish as a result of its disruptive behaviour.
Liberum veto is an effective tool, with headline-grabbing potential, but exceedingly blunt. On the other hand, the daily working of the European Union requires daily decisions and alliances on literally thousands of details annually, with potential for death by a thousand cuts for members with the ambition to become outcasts.
The prospects for a refusenik presidency (such as the Czech might turn out to be) are worrying, not only for the EU as a whole.
Even if the French referendum on the Constitutional Treaty concerned treaty amendment, not accession, it should be remembered that France became more or less a zombie in the European Union as a result, until the new president Nicolas Sarkozy was able to re-engage his country.
The European Union and its predecessors have usually been able to clear hurdles only after humiliating experiences. Perhaps the obstructionists have precipitated the next move towards an effective and democratic (new) European Union(?)