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Briefing No 23
Legal questions of enlargement

The views expressed in this document are not necessarily those held by the European Parliament as an institution.


Article O of the TEU stipulates:

Any European State may apply to become a member of the Union. Its 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.

The procedure for accession to the Union thus provides for what might be called a 'Community stage' and an 'inter-State stage'. The Community stage entails the Commission opinion, European Parliament assent, and the Council decision. The inter-State stage entails negotiating the text of the agreement and the agreement's ratification by the Member States of the Union and the applicant state.

In practice the two stages - Community and inter-State - run concomitantly: when the application to accede has been lodged, but before negotiations are opened, the Commission delivers a prior opinion containing an initial analysis of the political, economic legal and institutional implications of the accession, together with a specification of items that will have to be negotiated. Without being bound by this initial Commission opinion, the Council issues a summary assessment of the possibilities for accession and decides whether or not negotiations should be opened.

The prior opinions are not laid down in Article O of the TEU. They were nonetheless used in the response to the applications to accede now under consideration. The Commission delivered a prior opinion on eventual accession by Central and East European countries on 15 July 1997 ( 1) and by Cyprus on 30 June 1993 ( 2). The Council delivered an opinion in favour at the Luxembourg European Council of 12 and 13 December 1997 ( 3), and on 31 March 1998 it opened negotiations with six applicant countries, viz: Poland, Hungary, Czech Republic, Estonia, Slovenia and Cyprus.

On 4 December 1997, the European Parliament adopted the Oostlander-Barón Crespo motion for a resolution delivering a favourable opinion on the opening of negotiations with eleven applicant countries, viz: Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Czech Republic, Romania, Slovenia, Slovakia and Cyprus ( 4). It had already adopted the practice of delivering a prior opinion on the occasion of accession by Finland, Sweden and Austria ( 5).

In view in particular of the impossibility of amending the text of the agreement once it has been initialled by the negotiators for the contracting parties, Article 89 of the European Parliament's internal Rules of Procedure provides for the option of adopting recommendations by means of which the European Parliament can ask for certain aspects to be taken into consideration before the negotiations are concluded. The Rules of Procedure stipulate moreover that Parliament's assent, pursuant to Article O of the TEU, must be delivered before the agreement is signed.

Subsequent to these prior statements of position, negotiations are held between the EU Member States and the applicant State. Once the negotiations have been concluded, the definitive opinions are delivered by the Community Institutions ( 6), and the accession Treaty is then signed and ratified by the existing EU Member States and the acceding country.

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a) The European State

The sole material condition laid down by Article O of the TEU is that the applicant must be a 'European State'. There is no unequivocal interpretation of that criterion. It can be read equally well in geographical, cultural or political terms.

In 1987 an application to become a Member of the Communities was received from Morocco. The application was rejected by the Council on the grounds that Morocco was not a European State ( 7). In the case of Turkey, Article 28 of the Association Agreement signed in 1963 incudes the option of Turkey's eventually acceding to the Communities. Turkey in fact lodged an application to accede on 14 April 1987. Historically, Turkey has formed part of the so-called 'European concert'. Although part of Turkey's territory is located geographically in Asia, Parliament, the Council and the Commission have confirmed Turkey's eligibility ( 8). This example shows that the term 'European State' need not be interpreted in a strictly geographical sense. It is at all events a criterion subject to political assessment.

b) Prior institutional reform

The Amsterdam Treaty includes a Protocol on the Institutions with the prospect of enlargement of the European Union. Article 1 of the Protocol states:

At the date of the entry into force of the first enlargement of the Union, ... the Commission shall comprise one national of each of the Member States, provided that, by that date, the weighting of the votes in the Council has been modified, whether by re-weighting of the votes or by dual majority, in a manner acceptable to all Member States, taking into account all relevant elements, notably compensating those Member States which give up the possibility of nominating a second Member of the Commission.

Article 2 of the Protocol lays down that:

At least one year before the membership of the European Union exceeds twenty, a conference of representatives of the governments of the Member States shall be convened in order to carry out a comprehensive review of the provisions of the Treaties on the composition and functioning of the institutions.

It should be realized that institutional reform will require amendments to the Treaties on which the Union is founded. The Treaty review procedure consists, in accordance with Article N of the TEU, in the submission by a Member State or the Commission of a Treaty-review proposal. The Council consults Parliament and, if necessary, the Commission on the proposal. If the Council then delivers an opinion in favour of holding an inter-governmental conference, the latter is then convened by the President-in-Office of the Council.

A country's accession to the Union makes Treaty amendments indispensable. At the very least, the rules governing the membership of the different bodies have to be adjusted to ensure that the new Member State will be represented. For that reason, Article O, second paragraph, of the TEU stipulates that arrangements for Treaty adjustments must be included in the accession Treaty. They are regularly provided for in Part II of the Act of Accession ( 9).

The distinction between a 'review' within the meaning of Article N, requiring only consultation of Parliament, and an 'adjustment' of the Treaties within the meaning of Article 0 of the TEU, for which Parliament's opinion in favour is required, remains an open question. It is at best doubtful that prior institutional reform can continue to take place on the basis of adjustments to the Treaties in the context of an enlargement. Moreover, the difference in the parts played by Parliament in relation to Treaty review procedures and to accession by a new Member State raises the question of the extent to which Parliament's strong position on accession should perhaps reflect a stronger part to be played by it also in the Treaty review procedure in the event of prior institutional reform being a condition of accession. It might well be though that the two changes to the Treaties (institutional reform and adjustments made unavoidable by accession) should be made at the same time by way of a single enactment, subject to Parliament's assent. It is at all events unlikely that the Member States would agree to any such combined procedure; in addition to European Parliament assent, it would also require the agreement of the acceding countries, a condition that would not be necessary if institutional reform were to be secured before the accession treaties were signed. The Protocol on the Institutions with the prospect of enlargement at all events clearly stipulates separation of the two procedures.

c) EU accession - an integrated package

There are other principles in addition to the written conditions that help to determine the requirements for accession, including the principle of accession as an integrated package. This means that the applicant State must accede to all the Treaties (EU, EC, Euratom, ECSC, etc). The principle is made necessary by the need to uphold the integrity of the European Union, and derives directly from the fact that the relevant provision in relation to accession is to be found in the Treaty on European Union. It is not permissible for a new Member State to pick and chose among the Treaties that provide the basis for the European Union.

d) Compliance with the acquis communautaire

The acquis communautaire is referred to in Article B, fifth indent, of the TEU. It is not, however, defined there or anywhere else in the Treaties. It means that new Member States must accept fully all rights and obligations, actual and potential, relating to the Union and its institutional framework ( 10).

Compliance with the acquis communautaire will probably be subject to transitional measures and/or periods. That can certainly be expected to apply to rules governing sensitive sectors such as agriculture. Transitional measures have been adopted for all accessions to the Community hitherto. Care must however be taken to ensure that the transitional measures do not assume such an importance as to override the impact of accession. In all cases, they must be subject to time-limits and be accompanied by detailed plans for phasing them out.

The acquis communautaire is in a state of constant flux. Even so, the President-in-Office of the Council stipulated, on the opening of negotiations with the six applicant States, that the acquis communautaire included the following items applicable to each of the applicant countries ( 11):

Once the Treaty of Amsterdam comes into force, the question could arise of whether any acts that might be adopted under strengthened cooperation will form part of the acquis communautaire ( 12). Any such requirement would appear to be unacceptable, since it would conflict with the very concept of strengthened cooperation. That form of cooperation is not binding on the Member States. Acts adopted under that procedure consequently should not be allowed to assume binding force by way of the principle of compliance with the acquis communautaire. That conclusion is confirmed by the new Article K.15 of the TEU, which excludes the acquis communautaire from being amended by strengthened cooperation.

e) The criteria laid down by the Copenhagen Council

The Copenhagen European Council agreed that accession by countries of Central and Eastern Europe would require the applicant countries to have stable institutions able to guarantee democracy, the rule of law, human rights, respect for and protection of minorities, the existence of a viable market economy, the ability to respond favourably to competitive pressures and market forces within the Union and the ability to meet obligations relating to the European Union, in particular to subscribe to the objectives of political, economic and monetary Union ( 13). The European Parliament confirmed those criteria in the Oostlander-Barón Crespo motion for a resolution ( 14) and the European Commission based its prior opinions on accession applications on compliance with those criteria.

As regards the judicial scope of these criteria, it appears at first sight that they do not amount to conditions of accession in the strict sense. Their application could instead be made subject to political monitoring rather than judicial examination. The analysis put forward in the European Commission's prior opinions of the ability of the different applicant countries to accede to the European Union is an example of that. These nevertheless amount to basic principles on which the European Union is founded. The greater part of them are already enshrined in the Treaty of Maastricht and must consequently be complied with in relation to any new accession ( 15). It was thus a consistent move to extend their application to the cases of Cyprus and Turkey ( 16).

f) Right of accession

It should, lastly, be pointed out that the right to lodge an application for accession does not confer the right to accede. The Union is free to accept a new member, or to reject the application for accession or the outcome of any negotiations opened.

The applicant state, conversely, is free to withdraw its application explicitly at any time, or to do so implicitly by failing to lodge the act of ratification of the negotiated Treaty. Norway has already resorted twice to implicit withdrawal of its accession application, following referendum results opposed to accession. A further example is that of Switzerland's application for accession, lodged in 1992, but not further pursued by the Swiss government subsequent to the referendum result opposed to ratification of the EEA agreement.

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Certain legal questions of enlargement will have to be resolved by the accession Treaty. These include the question of the legal status of acts adopted by the Community between signature of the accession Treaty and its entry into force. During that period, which can last a considerable time, Community legislative activity will continue. Acts adopted during the period will require adjustments to be made following accession by the new Members to the European Union. Accession Treaties in the past did not contain rules precise enough to rule out conflicts between the Institutions. On the basis of Article 169 of the act laying down conditions for accession by Finland, Sweden and Austria, for example, the Council went so far as unilaterally to amend a decision adopted in accordance with the codecision procedure. Following an appeal lodged by Parliament, the Court of Justice confirmed ( 17) that acts adopted by way of codecision could be adjusted by the Council. This self-evidently encroaches on Parliament's legislative priorities, and must be avoided in future. The clauses based on the formula applied to the Communities' first enlargement - and of course antedating the introduction of the codecision procedure - should therefore be brought up to date.

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( 1) Agenda 2000 - For a stronger and wider Union, COM(97)2000 - Volume I, p. 78

( 2) COM(93)0313 final, 30.6.1993. On aspects of accession by Cyprus, see Briefing No 1, Cyprus and membership of the European Union.

( 3) Luxembourg European Council. 12-13.12.1997, Presidency’s Conclusions, para. 27; in relation to Cyprus, see conclusions of Essen European Council Presidency, EU Bull. 12-1994, para. I.14

( 4) EP resolution Doc. A4-0368/97, 4.12.1997, OJ C 388/17, 22,12.1997

( 5) EP resolution Doc. A3-77/91, 15.5.1991, OJ C 158/54, 17.6.1991; EP resolutions Docs B3-1017, 1018 and 1043/93, 15.7.1993, OJ C 255/207, 20.9.1993

( 6) See e.g. OJ 241/3-8, 29.8.1994, on the last round of enlargement. The Commission delivered an opinion in favour on 19 April 1994, Parliament adopted legislative resolutions in favour of enlargement of the European Union to include the four applicant countries on 4 May 1994, and the Council adopted a resolution in favour on 16 May 1994.

( 7) Council Decision of 1 October 1987, cited in Europe Archives, Z 207

( 8) EP resolution Doc. A4-0368/97, 4.12.1997, recital S and para. 31; Luxembourg European Council of 12-13.12.1997, Presidency’s Conclusions, para. 31; Commission opinion of 18.12.1989, SEC(89)2290 final; Commission communication to the Council, European Strategy for Turkey - Initial Operational Proposals by the Commission COM(98)0124 final, 4.3.1998. For a more detailed consideration of matters relating to accession by Turkey see Briefing entitled Turkey and Relations with the European Union.

( 9) See e.g. Part II of the Acts of Accession of Finland, Austria and Sweden, OJ C 241/22, 29.8.1994

( 10) See, for example, paragraph 3 of EP resolution Doc. A3-0298/94, 5.5. 1994, on Finland’s application for accession, OJ C 205/406, 25.7.1994; Council meeting of 30-31 March 1998, under heading of Enlargement, Press Release No 7095/98 (Press 86-G), p. 7

( 11) Cf. Statement by President-in-Office of the Council at the 31 March 1998 conference on EU accession by the Czech Republic, para. 19. Identical statements were made at the openings of accession negotiation with Poland, Hungary, Estonia and Slovenia.

( 12) The new Articles K.12 TEU and 5a ECT inserted in accordance with the Treaty of Amsterdam provide for the option of strengthened cooperation.

( 13) Copenhagen European Council, Presidency’s Conclusions, EC Bull. 6-1993, para. I.13

( 14) Resolution Doc. A4-0368/97, 4.12.1997, recital H and para. 3

( 15) This applies in particular to Article F(1) of the TEU, which requires Member States’ systems of government to be founded on the principles of democracy. An applicant country must also comply with the principles of freedom, democracy, human rights and fundamental freedoms and the rule of law (cf. TEU, Preamble, third paragraph). It must be prepared to participate fully in the CFSP (TEU, Preamble, ninth paragraph; TEU, Article J.1). The accessions of Finland, Sweden and Austria have shown that a State’s neutrality is not considered as incompatible with taking part in the CFSP. The acceding State must in addition uphold the principle of an open market economy with free competition (ECT Article 3a).

( 16) Luxembourg European Council, 12-13.12.1997, Presidency’s Conclusions, paras. 10 and 31

( 17) Judgment of 2 October 1997, Case C-259/95, Parliament vs Council (EHLASS), Report of Cases 1997, p. I-5313

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© Enlargement: 19 May 1998