Finland joining EU: Committed leaders Esko Aho and Paavo Lipponen

Finland applied for EU membership in 1992 and joined the European Economic Area (EEA) from the beginning of 1994, but was not content to stay at that level. Thus, Finland pursued full membership and became a full member of the European Union on 1 January 1995, together with Austria and Sweden. In a 1994 referendum, 57 per cent of Finnish voters had approved joining the EU.

(The integration process was not easy for the so called neutral or non-aligned countries. The Swiss derailed the EEA membership and further EU integration in late 1992, leading to a jungle of bilateral treaties on individual issues. The Norwegians rejected accession to the European Communities/European Union for the second time in 1994, remaining at EEA and EFTA level.)

The relations between the acceding Austria, Finland and Sweden (and Norway) with the EU are documented in the 1994 accession treaty.

Finnish EU accession and the formative early years were marked by two prime ministers.


PM Esko Aho

During his time as prime minister of Finland (1991-1995), the young Esko Aho grew into a statesman facing down two historic challenges. His government turned the tide on the deep economic depression of the early 1990s, even if the impopular budget cuts led to election defeat in 1995. In 1992 Finland applied for EU membership and joinded the European Union from 1 January 1995, despite vocal opposition within Aho's own rurally based Centre Party.


PM Paavo Lipponen

The social democratic prime minister for two periods (1995-2003) Paavo Lipponen continued the tight economic policies of the Aho government, which enabled Finland to adopt the euro in 1999. Lipponen was a committed European statesman, as illustrated by his 2000 speech in Bruges, at the College of Europe, where he spoke of the need for a constitutionalisation process.

Before the Treaty of Nice was finalised, Lipponen proposed a broadly based Convention in order to prepare a basic constitution, after naming these crucial reform aims:

For any institutional structure we need a decision-making system that is as simple as possible, democratic, efficient and transparent. Fundamentally, our institutions must enjoy democratic legitimacy.

From Sweden to Finland

A few days ago, I wrote a short series in Swedish about the role of Sweden in the European union, collected in: Svensk EU-politik diskuteras. Then I covered the same ground and some more in English, compiled in: Sweden in European integration (recap).

The op-ed column by the Swedish minister of foreign affairs Carl Bildt and the minister of finance Anders Borg opens up fascinating questions about two-speed, one-speed, slow-speed or no-speed Europe, but perhaps these issues will have to wait.

Namely, we have a more astonishing phenomenon to look at: changing European perceptions of Finland in EU affairs. The essentials about the two dedicated prime ministers, Aho and Lipponen, offer historical background to current events. It is a story of vision and hard work, but what is taking place?



Ralf Grahn

EU view of EFTA and EEA country Iceland (not excluding controversy)

Iceland has been getting a lot of attention in Brussels lately. The EU Commission presented its progress report and conclusions regarding the process of Iceland to become a member of the European Union:

Grahnlaw Suomi Finland: EU enlargement: Iceland (20 December 2010)

The General Affairs Council (GAC) adopted conclusions on enlargement, including Iceland, on 14 December 2010:

Grahnlaw: EU Council on enlargement: Iceland (20 December 2010)

But the same day, the General Affairs Council also adopted conclusions about the relations between the European Union and the members of the European Free Trade Association (EFTA), as described on Grahnblawg (in Swedish): EU-relationerna med Norge (19 December 2010).

Naturally Iceland, an EFTA member and a participant in the European Economic Area (EEA) was dealt with in these GAC conclusions as well:

Council conclusions on EU relations with EFTA countries; 3060th GENERAL AFFAIRS Council meeting Brussels, 14 December 2010


EEA remarks

The Council was satisfied with the contributions from Iceland, Liechtenstein and especially Norway to poorer EU member states (point 2):

The Council appreciates the financial contributions of the EFTA countries to the economic and social cohesion in the European Economic Area (EEA). Norway, Liechtenstein and Iceland (the "EEA EFTA States") recently committed themselves to a substantial increase of their continued contributions.

In practice the EEA states pay for access to the internal market, although it differs somewhat from the membership contributions from EU countries.

The Council was happy to note the excellent transposition record of the EEA EFTA states (point 3):

Iceland, Liechtenstein and Norway are integrated in the internal market through the EEA Agreement of 1994. This Agreement functions properly so long as all Contracting Parties incorporate the full body of the relevant EU acquis relating to the internal market into their national law. The Council welcomes that the EEA countries have demonstrated an excellent record of proper and regular incorporation of the acquis into their own legislation and encourages them to maintain this good record to ensure the continued homogeneity of the internal market.

The GAC remarks about homogenous implementation of EU law and the smooth functioning of the special institutions are directed at all EFTA countries (point 7):

Though EU relations with the EFTA countries were extended over the years to many areas not covered by the internal market, these relations are mainly based on the progressive integration of the EFTA countries' economies into the EU internal market. In view of the need for a level playing field for all economic operators of the parties concerned and the continued development of internal market relevant acquis, the EU and the EFTA States should ensure homogeneity in the implementation of the acquis and the good functioning of the institutions.

Icelandic accession negotiations

Officially, Iceland conducts negotiations to become a member of the European Union, which puts it in a different category from the other EEA states, Liechtenstein and Norway, with the remaining EFTA member, non-EEA Switzerland even farther apart. The GAC stated the position of Iceland (point 5):

The Council welcomes the opening, in July 2010, of accession negotiations with Iceland, which conserves its status as EEA EFTA State while negotiations are ongoing.

Specifically Iceland

The GAC conclusions contained a number of points specifically related to the EU's relationship with Iceland (10-16):

ICELAND

10. The Council welcomes the launching of accession negotiations with Iceland in July 2010, takes note of the findings presented by the Commission on 9 November 2010 to the Council and the European Parliament in its Progress Report on Iceland and refers to the Council conclusions on enlargement - Iceland - to be adopted by the General Affairs Council on 14 December 2010.

11. The opening of an EU delegation in Reykjavik in 2010 will contribute to the rapprochement of Iceland and the EU in this dynamic phase of relations.

12. The Council appreciates the solidarity shown by the Icelandic people when committing to renew their contribution to the reduction of social and economic disparities in the EEA for the period 2009-2014.

13. While accession negotiations are ongoing, the EEA Agreement remains the key contractual basis for EU-Iceland relations. In the past two years, Iceland continued to be an active and constructive partner in that framework as well as in the Schengen area, with a good record of implementation of the evolving EU acquis. The Council encourages Iceland to maintain the same good record also in the future.

14. The Council welcomes the good cooperation with Iceland in many areas of common interest, in particular on environmental and energy issues, as well as in the field of Common Foreign and Security Policy, with Iceland frequently supporting EU declarations and voting together with the EU in the UN. The Council is looking forward to further strengthening cooperation with Iceland on issues such as Arctic policy, the Northern Dimension, fisheries, renewable energy and climate change.

15. Regarding fisheries, the Council continues to call for a constructive approach of all Coastal States (EU, Norway, Faeroe Islands and Iceland) on the joint management of mackerel fisheries, and encourages Iceland to resume negotiations on this issue, in particular as regards a reasonable long term sustainable quota sharing arrangement, taking into account the track records of all relevant actors.

16. The Council welcomes Iceland's continued commitment to move toward economic stabilization and to address all issues deriving from the 2008 banking collapse. In this context, the Council recalls the need for Iceland to address existing obligations, such as those identified by the EFTA Surveillance Authority under the EEA Agreement, as well as weaknesses in the area of financial services, identified in the Opinion of the Commission on Iceland's application for EU-membership.

”Mackerel War”

As we saw, the last two points referred to controversial issues. In point 15 the GAC called for the resumption of negotiations in the ”Mackerel War”. Se for instance:

FISHupdate.com: Iceland and Faroes set to announce new mackerel quotas (20 December 2010)

FISHupdate.com: Lochhead comments on Iceland's 'irresponsible' mackerel quota action (20 December 2010)

BBC Scotland: Scottish fishermen condemn Iceland mackerel quota move (18 December 2010)

Fishnewseu.com: Iceland warns that Norway and EU will overfish mackerel next year (20 December 2010)

Icelandic Ministry of Fisheries and Agriculture, press release: Decision on Iceland's Share in Mackerel Fisheries in 2011 (20 December 2010)


Icesave / Landsbanki

The catastrophic fallout from the Icelandic banking collapse has haunted the people of Iceland and its government, but also relations with the Netherlands and the United Kingdom (point 16). See for instance:

Reuters: Iceland finance minister presents new Icesave bill to parliament (16 December 2010)

Eygló Svala Arnarsdóttir in Iceland Review Online: Icesave: Not my headache (ESA) (17 December 2010)

Bloomberg: Grimsson Says He'll Decide by February on Icesave Referendum (20 December 2010)



Ralf Grahn



P.S. In the blog post Not losing sight of the basics, Mathew Lowry calls on the EU institutions to do some serious work on Europa and other websites to serve a huge array of audiences. Read the discussion as well.

EU Council on enlargement: Iceland

My previous blog post looked at the conclusions of the EU Commission regarding the accession negotiations of Iceland: EU enlargement: Iceland (20 December 2010).

The member states of the European Union hold the keys to membership, so there is cause to present how the Council responded. The General Affairs Council referred to the communication from the Commission of 9 November 2010 on the Enlargement Strategy and Main Challenges 2010-2011 [COM(2010) 660], as well as the progress report “Iceland”, in:

Conclusions on enlargement and stabilisation and association process as adopted by the Council (General Affairs) on 14 December 2010 (document 17917/10)

The specific remarks with regard to Iceland are found on page 8:

Iceland

The Council recalls that, following the Commission’s recommendations in its Opinion of February 2010, accession negotiations with Iceland were opened on 27 July 2010.

Iceland is a long-standing functioning democracy with strong institutions and close ties with the EU. The overall level of preparedness to meet EU acquis requirements remains good, in particular due to Iceland’s membership of the European Economic Area (EEA) and the Schengen agreement. Iceland can be considered a functioning market economy, and could regain the capacity to deal with competitive pressure and market forces within the single market over the medium term.

Negotiations will be aimed at Iceland integrally adopting the EU acquis and ensuring its full implementation and enforcement. In line with the Negotiating Framework, the fulfilment of Iceland’s obligations under the EEA Agreement, taking full account, inter alia, of the European Council conclusions of 17 June 2010, as well as Iceland’s progress in addressing other areas of weakness identified in the Commission’s Opinion, will guide the advancement of negotiations.

In this context, the Council looks forward to the results of the screening process.

Icelandic Ministry for Foreign Affairs

The Icelandic Ministry for Foreign Affairs offers detailed pages in English on Iceland's application for membership of the EU, and the pages Latest news show that the screening process on different areas of legislation advance rapidly, with meetings on financial services, free movement of goods, competition policy, information society and media, company law and public procurement in little more than a month.

But the Council conclusions had not yet been included among the Key documents, and the government has had little to say of late.


Media

Official conclusions usually need to be supplemented by media reports and opinions to give the lay of the land. Here are a few samples.

IceNews, Michael Huguenin: Icelanders Frosty Towards EU Membership (14 November 2010)

IceNews: Icesave contracts leaked online (14 December 2010)

Iceland Review Online: Iceland walks out of mackerel meeting (15 December 2010)

Iceland Review Online: Iceland: EU and Norway Responsible for Overfishing (16 December 2010)

The Economist: Coming in from the cold (16 December 2010)



Ralf Grahn



P.S. This is for people with an interest in EU law and politics. On Polscieu, his blog on the Ideas on Europe platform, Ronny Patz wrote an interesting entry about the legal web portal of the European Union: A new EUR-Lex: Finding documents 2.0? What if people actually found what they are looking for...

EU and eurozone membership paradoxes

The Copenhagen criteria for accession to the European Union require, among other things, democracy. Thus, the EU would not qualify for membership.



According to Eurostat, in 2009 the government deficit in the euro area was 6.3 per cent and government debt at 78.7 per cent of GDP.

Following the financial crisis and the economic downturn, which led to huge bail-outs and high unemployment, the eurozone as a whole wildly overshoots the reference values of 3 per cent and 60 per cent of GDP.

Thus, the eurozone as a whole would fail the convergence criteria of the Stability and Growth Pact for euro introduction, based on the figures for last year.

Here are the main Eurostat findings:

In 2009 the largest government deficits in percentage of GDP were recorded by Ireland (-14.3%), Greece (-13.6%) the United Kingdom (-11.5%), Spain (-11.2%), Portugal (-9.4%), Latvia (-9.0%), Lithuania (-8.9%), Romania (-8.3%), France (-7.5%) and Poland (-7.1%). No Member State registered a government surplus in 2009. The lowest deficits were recorded by Sweden (-0.5%), Luxembourg (-0.7%) and Estonia (-1.7%). In all, 25 Member States recorded a worsening in their government balance relative to GDP in 2009 compared with 2008, and two (Estonia and Malta) an improvement.

At the end of 2009, the lowest ratios of government debt to GDP were recorded in Estonia (7.2%), Luxembourg (14.5%), Bulgaria (14.8%), Romania (23.7%), Lithuania (29.3%) and the Czech Republic (35.4%). Twelve Member States had government debt ratios higher than 60% of GDP in 2009: Italy (115.8%), Greece (115.1%), Belgium (96.7%), Hungary (78.3%), France (77.6%), Portugal (76.8%), Germany (73.2%), Malta (69.1%), the United Kingdom (68.1%), Austria (66.5%), Ireland (64.0%) and the Netherlands (60.9%).

Is there any correlation between both sets of membership criteria?




Ralf Grahn

Iceland not joining the European Union?

Love’s Labour’s Lost?

Iceland has applied for EU membership and answered the detailed questions posed by the Commission, which is preparing its opinion for the Council on starting membership negotiations.

On the face of it, matters have advanced at lightning speed (according to European Union enlargement standards), but somehow the feeling surrounding the membership application is surreal: The government has applied to become a member and appointed its chief negotiator, but the population of Iceland will probably reject accession, if matters ever advance that far.

Geographically (and mentally?) Iceland is situated between Norway, which has twice rejected a final accession agreement, Greenland, the only territory to leave the European Union, the United Kingdom, where public hostility to and ignorance of European integration reign, and Ireland with its patchy record of referenda.

The latest opinion polls show that Iceland will probably continue as a member of the European Free Trade Association (EFTA) and the European Economic Area (EEA), which guarantees access to the internal market of 30 states, but excludes agriculture and fisheries.


“Fax democracy”

The EEA agreement is in effect since 1994, which explains the antiquated term “fax democracy” for the adoption of the EU’s internal market legislation, without much say over its contents. The EEA countries also contribute to the EU budget.

Paradoxically, defenders of national sovereignty prefer quasi-automatic reception of EU law on the grounds that membership means loss of self-determination. Admittedly, the voting weight of a state with 320,000 inhabitants is limited among (now) 27 member states with a total population of 500,000,000. But smallest states are actually over-represented in the EU institutions and they sit at the tables where the decisions are hammered out. Still, noises about demanding extra representation are ill-boding.



The fishing industry still provides almost 40 per cent of Icelandic export earnings and it employs 8 per cent of the work force, so the common fisheries policy of the European Union is going to be a crucial question during the negotiations. A protectionist population will most probably reject any deal seen as disadvantageous (giving fishing rights to “foreigners”), but one may ask why the European Union should concede membership rights to a country, which sees contributions as a one way street.


Further reading

Here are some suggestions for further reading for those, who want to take a closer look at the Icelandic EU prospects.



Mats Engström: Progress on Enlargement (8 November 2009)



Reykjavik Grapevine, Paul Nikolov: Poll: EU Referendum Would Fail if Voted On Today (6 November 2009)



Jón Frímann Bloggar: Smear campaign against EU in Iceland (8 November 2009)



Vanderbilt Business, Ólafur Arnarson: Iceland meltdown (November 2009)



Iceland Review: Iceland’s EU Negotiation Committee Appointed (5 November 2009)



Iceland, Ministry of Foreign Affairs: Iceland’s negotiation committee appointed (4 November 2009)



Iceland, Ministry of Foreign Affairs: The Icelandic Government submits answers to a Questionnaire from the European Commission (22 October 2009)



Wikipedia: Accession of Iceland to the European Union



Leigh Phillips on EUobserver: Concern over Iceland EU bid as public support tanks (6 November 2009)




Ralf Grahn



P.S. Read about the real EUSSR through the good, the better and the best Euroblogs on multilingual Bloggingportal.eu. Propose an interesting blog post or a whole new blog (click Contribute).

Iceland starts EU membership talks?

Today, 28 May 2009 the government of Iceland is going to put forward a proposal for authority to start negotiations on membership of the European Union.



If the Althingi (Parliament) grants the authority, Iceland is in “pole position” for accession due to its membership in the European Economic Area (EEA). Despite its severe economic crisis, Iceland is a stable democracy. Its Parliament, Althingi, evokes the longest parliamentary tradition in the world. It was established as a legislature and judiciary in 930. Iceland became a member of the Council of Europe in 1950.

Acquis communautaire

The internal market legislation of the European Community (European Union) is already in force. In addition, as an EEA country Iceland participates in a number of other policy areas and EU programmes.

Iceland participates in the Schengen area abolishing internal border controls and improving controls on the external borders, and it is a member of the NATO alliance in common with the mainstream members of the European Union.

In other words, Iceland already fulfils most of the EU membership criteria, although internal political differences and the difficulties concerning fisheries and agriculture should not be underestimated.

We can compare the situation with the EFTA countries Austria, Finland and Sweden. They had negotiated the EEA Agreement, which entered into force at the beginning of 1994. But they went on to upgrade their relationship with the European Union through full membership, which entered into force exactly a year later, in 1995.


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Membership application: Yes or no?

Today, 28 May 2009 the new Icelandic government is going to propose that the Althingi (Parliament) grants it powers to apply for membership in the European Union.

Iceland’s Ministry for Foreign Affairs offers the following overview in English:



Proposal for a Parliamentary Resolution on Application for Accession to the European Union

(Submitted to the 137th session of Parliament 2009)


The Parliament resolves to empower the Government to submit an application for membership of the European Union and upon the completion of negotiations with the Union to hold a national referendum on a prospective membership agreement.


Comments on the Proposal for a Parliamentary Resolution

The proposal on application for membership of the European Union is submitted in order to give the Icelandic people an opportunity to reject or accept an agreement on accession to the EU once negotiations have been concluded.

The application to the European Union is thus not equivalent to membership, upon which, indeed, it is for the Icelandic nation to take the final decision. In addition, a legislative proposal will be submitted on the holding of national referendums on important matters that the Government or Parliament decides to submit to the nation.

Prior to the start of negotiations, extensive consultations will take place with interest groups on agreement objectives in various sectors, such as fisheries, agriculture and regional issues, in the field of public services, the environment, equal rights and currency matters, and the broadest possible consensus will be sought on the basis for negotiations. The possibility of closer monetary cooperation will be explored in parallel to the negotiations on possible accession in order to support the Icelandic krona. Emphasis is placed on an open and transparent process and regular information sharing with the general public and interest groups.

A Committee of professionals will be appointed by the Government of Iceland to carry out the negotiations with the European Union. The Committee will be supported by a broad-based consultative body representing different interest groups, from which the Committee will seek advice and which the Committee will keep informed on the ongoing progress of negotiations. Iceland as a European nation wishes to take an active part in the development of a democratic Europe built on the foundations of social justice, equality and the respect for human dignity and the environment. Europe is the cornerstone of human rights in the world, and an advocate for stability, sustainable development, justice and prosperity throughout the world.
Parties concerned reserve the right to advocate for or against any final agreement, bearing in mind that possible support is contingent upon various provisos.

Iceland’s vital interests include:

• ensuring the sovereign control of water and energy resources and their utilization.

• ensuring the sovereign control of the fisheries resources, the sustainable utilization of these resources, and a share of straddling stocks and as much representation of national interests in international agreements on fisheries as possible.

• ensuring thriving Icelandic agriculture based on food security and safety.

• ensuring the democratic right to manage public services based on social principles.

• defending the rights of workers and labour.

• achieving a favourable and growth based competitive environment for business in Iceland while at the same time taking account of unique factors owing to specific circumstances.

It is foreseen that Parliament will establish a special European Parliamentary Committee, in which all the political parties will be represented, to consult with the Negotiating Committee to the European Union.


***


Iceland’s international relations


The (previous) Government of Iceland presented a report on Iceland’s international relations to the Althingi in March 2009. (The link is to an 11 page excerpt available in English.)





Ralf Grahn

EU: Free movement Switzerland (Bulgaria & Romania)

The Swiss Confederation is the one EFTA country, which is not a member of the European Economic Area (EEA) ─ as are Iceland, Liechtenstein and Norway ─ so closer relations with the European Union and its member states have been built gradually on the basis of bilateral (and plurilateral) agreements.

The Wikipedia overview article Switzerland and the European Union (latest update 19 May 2009) describes the Swiss Confederation as a virtual member of the EEA or even the EU. (Despite the so called Guillotine Clause, given the importance of referendums in the Swiss constitutional system, the “even the EU” could be seen as an exaggeration.)




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Accession and free movement

From the point of view of the European Union, the extension of free movement to Switzerland with regard to the latest EU entrants Bulgaria and Romania is now confirmed by the official publication of the relevant documents.


Council Decision

The first document is the formal Council Decision 2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published in the Official Journal of the European Union (OJEU) 20.5.2009 L 124/51.




***

Protocol

The second document is the Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published OJEU 20.5.2009 L 124/53.



The Protocol, to be ratified, contains the substantial provisions, including the transitional clauses (limitations).



Ralf Grahn

Iceland & EU: Monetary union only?

In two days (Saturday 25 April 2009) Iceland is going to vote on a new parliament, after the meltdown of the country’s financial sector and economy.

For a look at the background, you can read Iceland’s EU questions unanswered ahead of vote on EUbusiness (23 April 2009).



A few months ago, several reports indicated that the Icelandic population would be ready to change their status as part of the European Economic Area (EEA) into membership of the European Union. Later news items and blog posts have told us that many voters would want to adopt the euro currency, fewer would be prepared to start negotiations on EU membership, and even fewer imagine they would accept the accession terms.

Only the social democratic party (estimated to gain 31 per cent of the vote) is committed to EU membership.

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Monetary union?

This situation has left me wondering if the voters in Iceland have secret knowledge, or if they are unwittingly optimistic about adopting a foreign currency.

Right at the start of the Treaty on European Union the Preamble states:

RESOLVED to achieve the strengthening and the convergence of their economies and to establish an economic and monetary union including, in accordance with the provisions of this Treaty, a single and stable currency,
---


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EMU


The economic and monetary union (EMU) includes the common currency. Iceland is not a protectorate or an enclave, but a sovereign state. Could it dispense with economic union, meaning coordination of economic policies, the stability and growth pact and all the rest, and just go straight for the euro currency?

To my knowledge, there is no such indication in the treaties, but I am doubtful because of the existing exceptions, according to Wikipedia Montenegro, Kosovo, Andorra, Monaco, San Marino, the Vatican).



Or are the Icelanders thinking about adopting the euro unilaterally, without asking anyone?

I have to admit that I am mystified.


Ralf Grahn

Turkey ending its EU membership bid?

Is Turkey going to end its bid for accession to the European Union?

This is the way it looks after the opening of the NATO summit, where Turkey seems to have vetoed the candidacy of Danish premier Anders Fogh Rasmussen to become the next Secretary General.

The Turkish reforms were already down to snail’s pace, so perhaps Turkey’s prime minister Recep Tayyip Erdogan has just decided to drive the last nail into the coffin of his country’s EU aspirations, without having to withdraw the bid formally.


Ralf Grahn

EU: Enlargement fatigue?

The French and German governments have ruled out further expansion of the European Union without the Treaty of Lisbon in force. The German CDU calls for consolidation after the latest wave of accessions, although some member states want to press ahead regardless of the institutional fundamentals.

See for instance Deutsche Welle ‘France, Germany Bolt EU Doors to Western Balkans’ (28 March 2009).

The three candidate countries hanging in the balance are Croatia, Macedonia and Turkey, with the rest of the Western Balkans as potential candidates (Albania, Bosnia-Herzegovina, Montenegro, Serbia and Kosovo).

Enlargement commissioner Olli Rehn is unhappy if the accession countries are barred through no fault of their own. He has some reasons on his side: The EU member states have unanimously opened the negotiations, and they should conclude them in good faith.

But there are other questions to consider.

The frontiers of Europe have never been defined, and the whole expansion process has been conducted without considering the opinions of EU citizens or European identity. As long as the fundamentals are open, the enlargement policy rests on thin air.

In 2004 and 2007 the European Union expanded from 15 to 27 member states. Bulgaria and Romania can hardly be counted as success stories at this point, but more serious is the change of atmosphere. The EU has become ever more like an intergovernmental bazaar, instead of a political union.

The Treaty of Nice (agreed in December 2000, signed in 2001) barely managed to adapt to the technical requirements of the coming ‘big bang’ enlargement, but politically it was a disappointment. Later stages of treaty reform ─ Laeken, the European Convention, the Constitutional Treaty, the Treaty of Lisbon ─ have not yet led to conclusive results.

The Lisbon Treaty may be an improvement compared to the Treaty of Nice, but it does not create an effective or democratic union.

In my opinion, the main fault of the French and German governments is not that they put a brake on EU expansion, but that they do not envision reform beyond the limited Lisbon Treaty.


Ralf Grahn

EU Council tasks: Enlargement

According to the Treaty of Lisbon, any European state which respects the EU’s founding values and is committed to promoting them may apply to become a member of the European Union.

Although the Commission does the donkey work, the decisive steps of the accession process are intergovernmental, with the European Council, the Council as well as the member states’ governments and parliaments in key roles.


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Eligibility

There are three groups of criteria for eligibility:

1) European state has not been defined, but in 1987 Morocco’s application to join the European Community was rejected on the grounds that it was not a European state. .

2) The values Article 49 of the amended Treaty on European Union (TEU) refers to are mentioned in Article 2 TEU: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities (OJEU 9.5.2008 C 115).

3) The conditions of eligibility agreed upon by the European Council shall be taken into account. The current criteria have been laid down by the European Council in Copenhagen (1993) and Madrid (1995).


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Council’s tasks

The applicant state addresses its application to the intergovernmental Council. The Council consults the Commission and needs the consent of the European Parliament for a decision to open membership negotiations.

Even if the formal decision is taken by the Council, unanimously, almost everyone would agree that the decisive political green light is given by the European Council.

The donkey work of conducting the accession negotiations is delegated to the Commission, but regulated and keenly followed by the Council. The applicant state has to adopt the existing Community legislation (acquis communautaire), and the negotiations advance Chapter by Chapter (35 in all).

The accession treaty is concluded intergovernmentally, between the member states and the applicant state, subject to ratification by all of them.



Ralf Grahn

EU enlargement and liberum veto

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(?)


Ralf Grahn

EU TFEU: Gender equality

A new European political star was born. In retrospect the defining moment must have been when she addressed a packed audience at her final election rally with these resounding words:

If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.

[Wild cheers.]

***

Am I pulling your leg? Yes and no.

No politician in her right mind would address even her most devoted followers like this.

On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.

Unbelievable, you say. You need proof, do you?

Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?

***

Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.

***

You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):

Article 3 TEC

1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;

(b) a common commercial policy;

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;

(d) measures concerning the entry and movement of persons as provided for in Title IV;

(e) a common policy in the sphere of agriculture and fisheries;

(f) a common policy in the sphere of transport;

(g) a system ensuring that competition in the internal market is not distorted;

(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;

(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;

(j) a policy in the social sphere comprising a European Social Fund;

(k) the strengthening of economic and social cohesion;

(l) a policy in the sphere of the environment;

(m) the strengthening of the competitiveness of Community industry;

(n) the promotion of research and technological development;

(o) encouragement for the establishment and development of trans-European networks;

(p) a contribution to the attainment of a high level of health protection;

(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;

(r) a policy in the sphere of development cooperation;

(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;

(t) a contribution to the strengthening of consumer protection;

(u) measures in the spheres of energy, civil protection and tourism.

2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.

***

What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.

Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:

Article 3 TFEU (ToL), to be renumbered Article 8 TFEU

In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

***

We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?

However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.

***

We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):

Article III-2

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

***

We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):

Article III-116

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.

***

We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.

Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.

Eliminating gender inequality (sex discrimination) is a general principle of Union law.

Promotion of equality requires positive action and secondary legislation.



***

Domestic violence

The Lisbon Treaty takes up a third aspect of gender equality at a political level.

The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:

19. Declaration on Article 3 of the Treaty on the Functioning of the European Union

The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.

***

Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.


Ralf Grahn

EU Treaty of Lisbon: Better out?

Is the European Union a prison of “We, the People” like the United States of America, where President Abraham Lincoln abolished slavery and secession without express authorisation by the Constitution? Or is the EU a prison of peoples like the former Soviet Union, where both secession and dissent were smothered until the empire imploded?

What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?

There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.

International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?

Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).

Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.

***

Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.


Article 62
Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

***

There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).

***

The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):

58) The following new Article 49 A shall be inserted:

‘Article 49 A

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 205(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’.

***

The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).

***

For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).

Article 59
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.

The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.

4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.

***

The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):

Article I-60
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in European decisions concerning it.

A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article I-58.

***

We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.

The differences between the Constitution and the Lisbon Treaty are only technical.

***

Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:

Article 188n(3) TFEU

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

***

A few comments by your glossator:

The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.

It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).

Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.

The Treaty of Lisbon is, in effect, only a codification of law as it stands.

Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.

Then, one can ask how much the procedural provisions actually achieve.

Notification of the intention is such a basic requirement as to be almost self-evident in international relations.

In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.

It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.

Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).

I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.

Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.


Ralf Grahn

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.”

***

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.’.

***

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.

***

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.

***

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.

***

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.

***

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.

***

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.

***

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.

***

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.”

***

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.

***

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