The 20th Anniversary of the ‘Great’ EU Enlargement

Table of Contents

1. 20 Years after the 2004 Enlargement: The EU, old and new, and its fortified judicial Order

Marek Safjan

2. The ‘large-Scale’ EU Enlargement and its Impact on EU Institutions

Bruno De Witte

3. The Impact of Enlargement on the EU Rule of Law – a Rough Road with Few Lessons Learned

Jakub Jaraczewski

4. Rule of Law in the Enlargement Process? CVM would not help – Depoliticisation will!

Elena Basheska

5. The Impact of Enlargement on Human Rights in the EU: Disentangling negative Trends

Beáta Huszka and Zsolt Körtvélyesi

6. Enlargement of the EU since 2004: some Experiences from the UK before Brexit

Catherine Barnard and Fiona Costello

7. Enlargement of the EU and the Euro: Challenges for future Member States

Phedon Nicolaides

8. 20 Years of the ‘new’ Member States in the EU’s common commercial and foreign Policy: reflecting on practical Examples

Nicolaj Kuplewatzky

9. Linguistic Diversity in an enlarging European Union

Anna Krisztian

10. Toward a post-normative nontransformative Enlargement of the Union?

Nedim Hogic

11. Leaps in Time through the EU’s common foreign and security Policy post-Enlargement

Graham Butler

12. EU enlargement: Wider AND deeper?

Daniel R. Kelemen

20 Years after the 2004 Enlargement: The EU, old and new, and its fortified judicial Order

Marek Safjan

1. The Symbolic and Substantial Impact of the 2004 Enlargement

The accession of ten new Member States to the European Union in 2004, marking the largest enlargement in the Union’s history, was both a symbolic event and one of immense political, economic, and social significance. Europe was reshaping its identity, drawing on the historically rooted idea of pan-European unity as expressed in the works of Jean-Jacques Rousseau (‘Project for Perpetual Peace in Europe’, 1761) and Immanuel Kant (‘Perpetual Peace: A Philosophical Sketch’, 1795), grounded in shared values and principles. Concurrently, the Union faced the immense challenge of adapting its existing integration mechanisms and institutional frameworks to the significantly altered conditions of functioning.

The new Member States perceived EU accession as the culmination of the post-Yalta period in Europe and a crucial condition for future stability and security, while also serving as a strong impetus for economic development and an improved quality of life. Most citizens of these new Member States had limited knowledge about the organisation, principles, and functioning of the European Union, and their decisions to join were often driven by the motivation to ‘enter a better world’, definitively leaving the sphere of influence and control of the Soviet empire.

In the old Member States, political elites certainly saw the enlargement as a moral and political imperative, an act of settling the accounts imposed under the Yalta order. They also had a great awareness and understanding of the economic and political benefits arising from the unification of Europe through such a significant enlargement of the common market.

To the general public in the old EU, however, the new EU members were largely unknown and incomprehensible, this ‘knowledge gap’ stemming in part from persisting educational stereotypes. People also sensed risks of price and wage dumping, potentially weakening the benefits of the common market and treaty freedoms. These differences in attitudes and the resultant limited mutual trust still influence current debates on the future EU strategy, majority voting in the European Council, the formation of a common foreign and defense policy, and other issues vital for strengthening and developing European integration.

The high ‘transformational’ and ‘adaptational’ costs incurred by Central European countries in finding their place in the EU and ensuring compliance with all principles and rules, particularly those relating to the common market and free competition, were neither sufficiently appreciated nor understood in the old Member States. The symbolic acceptance of ‘younger brothers from the East’ quickly clashed with the hard reality of thousands of new workers migrating, large companies relocating to the new Europe due to lower production costs, and the necessity to share the EU budget, especially structural funds, favoring the neglected and infrastructurally lagging regions of Central Europe.

2. Dynamics of Attitudes Over Two Decades

The experience of 20 years in an enlarged European Union cannot be presented linearly, implying a constant, unchanging relationship between European societies. Instead, it resembles a fluctuating line, indicating an increase or decrease of confidence in European integration. The level of distrust on both sides has remained relatively stable, while the scale of resentment towards the numerous ‘newcomers from the East’ seemed to even increase, if we take into account a common experience among many individuals from new Member States working in the old Member States.

Over these two decades, one can distinguish several phases reflecting significant dynamics in societal attitudes in new Member States towards integration processes:

First Phase: Euro-Enthusiasm

In the first phase, preceding and immediately following accession, euro-enthusiastic attitudes predominated (at least among the members of society participating or interested in public life). This ‘neophyte enthusiasm’ sometimes naively assumed that joining the EU would automatically solve all problems related to democracy, protection of rights and freedoms, economic development, and quality of life. During this stage, an enormous effort was made to transpose the entire existing body of EU law into national legal systems, covering thousands of regulations with regulatory mechanisms in almost all areas of law, from constitutional provisions to technical regulations.

Second Phase: Euro-Skepticism

The second phase was marked by more pronounced euro-skeptical attitudes (though not dominant, they were very vocal). This period saw the rise of politicians like Jarosław Kaczyński, Viktor Orbán, and Robert Fico, with political narratives increasingly invoking national interests, sovereignty, the concept of a Europe of nations, and a return to a limited European integration focused on the common market. In this part of Europe, such rhetoric found fertile ground. In countries recently freed from Soviet influence, sovereignty arguments were particularly resonant, leading to the slogan ‘Brussels is the modern-day Moscow’ being understood in certain social circles.

Euro-skeptical and essentially anti-EU stances were coupled with opposition to ‘externally imposed law’, contributing to the escalating crisis of the rule of law. From the euro-skeptics’ perspective, the positions of European institutions on common values and legal order principles, particularly the CJEU’s jurisprudence asserting the primacy of European regulations, became significant arguments in the anti-European narrative and in bolstering sovereignty values. This stage saw instances like the Polish Constitutional Tribunal’s unprecedented challenge to fundamental EU Treaty provisions from a national law standpoint (judgment of October 7, 2021, K3/21).

Third Phase: Mature Membership

The current phase experienced in some new Member States can be described as the beginning of mature EU membership. This process involves a gradual evolution of social attitudes towards integration processes and the manner of engaging in and shaping European policy. Poland’s situation exemplifies this change. After eight years of eurosceptic and authoritarian tendencies, the current Polish elites seem to better understand the complexities and challenges of European policy, the need to redefine European strategy, directions for integration, and the necessity of strengthening integration mechanisms, such as expanding majority voting and establishing a common defense policy.

Changes in attitudes are significantly influenced by the rule of law crisis, which paradoxically played a positive role by creating a strong impetus for better understanding among society and political elites of the significance of EU membership and the fundamental role of common principles and values. The lessons from the rule of law crisis can apply to all Member States, and its consequences affect the entire Union.

3. Impact on the EU judicial order

First, as demonstrated by Polish judges opposing breaches of judicial independence, skillful use of legal instruments within the European framework, especially preliminary rulings and appeals to common principles and values, can effectively protect against public authorities’ attempts to impose a fundamentally defective justice system.

Second, the long struggle with the rule of law crisis highlighted the strength and flexibility of the European order, which, in critical situations, is not defenseless but capable of activating a wide range of measures to protect the common European legal space. Crises often prompt the Court of Justice to adopt new lines of jurisprudence and principles, particularly related to Articles 2 and 19 of the TEU, starting with the landmark judgment in the Associação Sindical dos Juízes Portugueses case on 27 February 2018 (C-64/16). This ruling underscored the dual role of national judges as European judges, and CJEU jurisprudence on the rule of law reinforced the Court’s position as the constitutional court of the EU.

Third, part of the experience of two decades in an enlarged EU, including the years of rule of law deterioration, is the recognition that, in extreme or crisis situations, the EU’s ‘lifeline’ can be found in federalist instruments. The February 16, 2022 ruling on the Conditionality Mechanism (C-156/21 and C-157/21)unequivocally confirmed the concept of the EU’s constitutional identity based on Article 2, emphasising the existence of an autonomous EU legal order, with which Member States’ constitutional identities cannot conflict. This was a fundamental step in building the EU’s axiological coherence, and nothing fosters integration more than a community of values. The ruling’s context, linked to the necessary conditions for disbursing EU funds, including the Recovery Fund (Next Generation EU), itself an example of a federal instrument, created a shared responsibility for debt incurred jointly by all Member States.

Conclusion

Recent years have fostered a growing conviction among EU societies that building a stronger community, enhancing European solidarity, and cooperation does not threaten national distinctiveness or risk losing one’s constitutional identity in the European space. Twenty years of shared experiences in the EU suggest that the idea of European unity can coexist without contradiction with the idea of respecting the diversity of Member States.

Marek Safjan is a former judge at the Court of Justice of the European Union (2009 – 2024) and President of the Polish Constitutional Court (1998 – 2006).

SUGGESTED CITATION: Safjan, M.; “20 Years after the 2004 Enlargement: The EU, Old and New, and Its Fortified Judicial Order”, EU Law Live, 27/05/2024,  https://eulawlive.com/op-ed-20-years-after-the-2004-enlargement-the-eu-old-and-new-and-its-fortified-judicial-orderby-marek-safjan/

The 20th Anniversary of the ‘great’ EU Enlargement

The ‘large-Scale’ EU Enlargement and its Impact on EU Institutions

Bruno De Witte

During the years leading up to the large-scale EU enlargement of 2004, a lively debate emerged linking that enlargement with the need to adapt the Union’s institutional framework. No less than three Treaty revision processes took place in the years preceding the actual enlargement (Treaty of Amsterdam, Treaty of Nice, and the Constitutional Convention of 2002-3 leading eventually to the Lisbon Treaty). On each of those occasions, the need to adapt the EU’s institutions to the envisaged consequences of enlargement was a central issue.

The tone had been set already by the Copenhagen European Council of June 1993, at which the enlargement process was officially started by the European Council and some general conditions for accession were laid down. The Copenhagen conclusions specified that accession would depend not only on the political and economic performance and state of preparation of the candidate States, but also on the institutional state of preparation of the European Union. The European Council affirmed that ‘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’. Thereafter, internal reform of the decision-making capacity of the Union became seen as a precondition for enlargement: how to ensure that ‘more’ Member States would not result in ‘less’ EU capacity to act. So, a central goal of the institutional reforms of the Union in the period between the entry into force of the Maastricht Treaty (1993) and the adoption of the Lisbon Treaty (2007) was to prevent the Union’s decision-making capacity from being negatively affected by a major expansion of its membership.

The accession of new States affects the functioning of the EU’s institutional system in several ways. The new States are represented in each of the institutions of the EU. Enlargement makes the overall number of members of most institutions grow, with the risk of exceeding the appropriate size allowing for effective deliberation. This affects the Commission, the European Parliament and the Court of Justice to a lesser extent than the Council since those three institutions perform much of their work in smaller formats (such as the chambers of the Court and the committees of the EP). The Council, on the contrary, meets, both at the formal ministerial level and at all the preparatory stages, in a format providing for the representation of all Member States which, quite obviously, rendered the discussions more cumbersome after the 2004 enlargement than in the ‘cosy’ environment of the original Community of Six, or even the pre-2004 Union of Fifteen. The actual decision-making of the Council is most clearly affected when it has to decide according to the unanimity rule but the addition of multiple new members also complicates the ‘game’ of coalition-building for the purpose of assembling a qualified majority. Each new Member State also brings new practices of political and administrative culture, which again complicates (at least in a first period of adaptation) the informal patterns of EU decision-making.

During the Intergovernmental Conference that was to lead to the adoption of the Treaty of Amsterdam, there emerged a triangle of sensitive enlargement-related institutional questions: the size and composition of the Commission; the weighting of the votes of states when acting within the Council of Ministers; and the extension of qualified majority voting (rather than unanimity) to further fields of EU policy. A compromise on this triangle of issues was eventually reached only at the next IGC, the one leading to the Treaty of Nice, whose modest agenda was deliberately limited to the three institutional ‘left-overs’ from Amsterdam, as if a negotiated solution of these three issues were the only key to

The 20th Anniversary of the ‘great’ EU Enlargement reform

a successful institutional adaptation to the coming enlargement. The intra-EU condition for accession now appeared to be fulfilled, at least according to the governments of the EU countries. At the Nice European Council meeting of December 2000, they agreed on the text of the Treaty of Nice and stated, in an annexed Declaration on the Future of the Union, that ‘with ratification of the Treaty of Nice, the European Union will have completed the institutional changes necessary for the accession of new Member States’. The candidate countries received the assurance that their EU accession now depended on their own economic and political performance, and on the willingness of the EU States to recognise the quality of this performance, but no longer on the question whether the Union itself managed to put its own house in order.

The question whether the rather modest institutional reforms agreed at Amsterdam, Nice and Lisbon had equipped the European Union with the practical capacity to act after enlargement generally received a positive answer. Several studies conducted shortly after the enlargement highlighted that the new Member States had integrated the EU system rather smoothly without causing any disruption of the functioning of the institutions. In particular, the Commission undertook an internal reform that strengthened the role of its President and of a set of Vice-Presidents, which made the operation of the 27-member executive more manageable than what many had expected prior to the enlargement. There was also no evidence of collective action by the newcomers that would disrupt the habitual functioning of the Council, even though the rotating Council presidency now has a tougher task than before in reaching out to the 26 other delegations and accommodate their policy preferences. One can say, twenty years after the enlargement of 2004, that all the EU institutions have found ways to accommodate the larger membership. Also in the inter-institutional relations, new ways were found to preserve the EU’s decision-making capacity, not the least of which is the systematic recourse to trilogues in legislative decision-making.

The most obvious element of the EU’s institutional machinery of the Union that has not been sufficiently adjusted to ‘deal with the larger numbers’ is the preservation of unanimous decision-making as, still, an important mode of decisionmaking in the Council and European Council, as well as for Treaty revisions. We know that the Council rarely votes and that attempts are systematically made by the Commission and the Council Presidency to reach a consensus among all delegations, irrespective of whether the measure can be adopted by qualified majority or requires unanimity. However, it does regularly happen, nowadays, that Member State delegations are formally outvoted at a Council meeting or that they cease to oppose a decision when they see that a qualified majority has emerged. In policy areas subject to QMV, the Council, the Coreper and the working groups all very much operate ‘in the shadow of the vote’, so that states that find themselves in an isolated minority position sometimes accept a relatively unsatisfactory compromise proposal for fear of being outvoted. However, the unanimity rule is still applicable for important policy decisions and even for routine matters such as foreign policy sanctions, and the formal veto power wielded by each country has become a much more unpredictable and obstructive weapon than in earlier epochs. It so happens that the Member State that currently makes the most obnoxious use of its veto power is Hungary, one of the States that joined in 2004. One cannot blame the enlargement process for this, but one can surely say that, if more Member States join the EU, abusive veto practices by single governments become more likely.

Bruno De Witte, Maastricht

University.

SUGGESTED CITATION: De Witte, B.; “The ‘large-scale’ EU Enlargement and its Impact on EU Institutions”, EU Law Live, 28/05/2024, https://eulawlive.com/op-ed-the-large-scale-eu-enlargement-and-its-impact-on-eu-institutions-by-bruno-de-witte/

The Impact of Enlargement on the EU Rule of Law –a Rough Road with Few Lessons Learned

Jakub Jaraczewski

The enlargement process of the EU that led to the accession of 13 new Member States was a monumental shift in the bloc’s politics, policy, and law. This process presented a unique challenge as the EU welcomed new members who had recently transitioned from authoritarian rule to democracy. It was not an unprecedented situation for the EU, as some of its existing Member States – Greece, Portugal, and Spain– had undergone a similar transition before joining the bloc. However, the 2004+ enlargement process brought about significant changes in the EU’s approach to the rule of law, necessitating the development of new tools to address the issue of democratic regress in EU Member States.

With the view towards an almost certain enlargement down the road, the EU began preparing to tackle the issue of respect for the rule of law, human rights and democracy in candidate countries by adopting the 1993  Copenhagen Criteria. These criteria have established a very high bar of entry into the EU regarding the respect for these values, yet at the same time, the EU was left with very little in the way of tools and mechanisms for protecting them, save for the Art. 7 TEU procedure, introduced in the 2001 Treaty of Nice. The challenges faced by candidate countries in meeting these criteria were significant, leading to delays in some of them acceding to the bloc. The rule of law issue was one reason Bulgaria and Romania joined the EU later than their peers, in 2007, and were immediately subject to the Cooperation and Verification Mechanism, a transitional measure established to support strengthening the rule of law in both countries (a specific Op-Ed on this mechanism by Elena Basheska will be published in this Symposium). The Commission was tasked with assessing and supporting their progress based on defined benchmarks and issuing regular reports and recommendations to the authorities in both countries.

The XXI century enlargement brought about a challenge the EU was ill-prepared to meet – democratic countries coming under an anti-democratic rule of Euroskeptic powers intended to weaken the judiciary and abolish checks and balances to remove obstacles to single-party rule. An idea that intellectuals in the old EU Member States have only passingly contemplated with regards to countries that experienced authoritarian episodes in their history became a reality in the newly enlarged EU, as nativism fueled by disillusionment with the pace of the new EU Member States catching up economically with ‘old’ members of the bloc paved the way to illiberal populist movements seizing power. This political turn led to a rule of law crisis in Hungary first and Poland, with right-wing majorities led by Fidesz and PiS, respectively setting out to dismantle the rule of law to secure their hold on the country.

Initially, the response of EU institutions to the rule of law crisis in Hungary and Poland was insufficient, to put it mildly. Article 7 TEU, the mechanism that was designed to prevent damage to the rule of law in EU Member States, was triggered only in 2017  towards Poland and in 2018 against Hungary when the damage to the judiciary and fundamental rights in both countries was already significant. The procedure’s most severe sanction, the removal of Council voting rights, was rendered powerless due to the requirement of unanimous agreement on its use in the Council, with Hungary and Poland covering for each other. When a new government emerged in Poland in 2023 to repair the rule of law, the Commission set out to terminate the Art. 7 TEU procedure against Poland. While the procedure remains ongoing against Hungary, the prospects for its effective use are bleak, as Viktor Orban quickly found a new ally in resisting the mechanism, namely Slovakia. Art 7 TEU failed due to its design and the lack of political will to use it effectively. Any revision of Treaties in

The 20th Anniversary of the ‘great’ EU Enlargement

the future should be an opportunity to remodel Art. 7 TEU into a working mechanism, one that Member State politics cannot easily undo.

The Commission’s activity was more successful in the form of infringement proceedings and cases brought against Member States before Court of Justice. While these led to some spectacular wins, such as the Court of Justice finding in a case brought by the Commission the Disciplinary Chamber of the Polish Supreme Court, used to attack and harass judges critical of the government, was established in a breach of EU law and handing Poland an unprecedented financial penalty of 1m EUR/day, these procedures were few and far between, and the Commission all too often languished where it should have acted forcefully. Far more significant was the impact of the rule of law crisis on case law of the Court of Justice, as the Court set out in 2018 to develop a line of interpretation of the Treaties, with particular emphasis on Art. 19 TEU, as standards for assessing judicial independence in the EU. Starting with hearing an unassuming case of  Portuguese judges who sought reversal of their salary cuts, the Luxembourg court moved on to hand out several seminal judgments concerning the judiciary, with landmark judgments such as A.K. and Others v Sąd Najwyższy, W.Ż.and Commission v Poland (e.g. C-204/21 and C-791/19) that established a mature and stable line of interpretation, despite occasional missteps such as the unfortunate Getin Noble judgment.

By far, the most effective tools developed by the EU during the rule of law crisis allowed direct financial pressure on the Member States that violated the rule of law. The rule of law conditionality regulation, introduced in 2021 and later used  against Hungary, allowed the EU to stop the money flowing towards Member States that disregarded common values. Yet that mechanism is not free from shortcomings and ultimately still depends on a Council decision, fortunately not one made with unanimous agreement. A far more effective, if deeply unorthodox, was the use of two instruments overtly unrelated to the rule of law, the Recovery and Resilience Facility (EU covid-19 recovery fund) and the provisions on the payout of cohesion funds, to withhold a staggering amount of over 130b EUR towards Poland over concerns regarding the rule of law and fundamental rights. Despite  controversy over how the instruments were used, this move proved successful and forced the Polish authorities to dismantle the Disciplinary Chamber of the Supreme Court and abandon some of its plans to further erode the rule of law.

Apart from developing instruments for financial pressure due to a lack of respect for the rule of law, the EU has also introduced new ways of assessing its condition in Member States. The annual rule of law report, carried out by the Commission and taking stock of the situation of the judiciary, anti-corruption, media freedom and checks and balances, was introduced in 2020 and continued since. The Commission refers to the report as a preventive tool, but it is, in fact, primarily descriptive and focused on assessing the situation in the Member States and helping the Commission and other EU institutions act accordingly. The report has shortcomings, and its mechanism of recommendations and follow-up to them leaves plenty of  room for improvement, but it is an important stepping stone in the development of robust monitoring of the rule of law in the EU. The Cooperation and Verification Mechanism towards Bulgaria and Romania failed to live up to its potential and was terminated in 2023, with little discernible effect on the ground. For all practical purposes, the annual rule of law report absorbed the reporting aspect of CVM.

These events of the rule of law crisis have also prompted a broader shift in thinking about strengthening values in the EU. The EU has been very good for quite a long time at supporting actions to protect and promote the rule of law abroad, with multiple funding lines for civil society actors active in EU’s neighbourhood and modes of cooperation with other international organisations focused on supporting human rights defenders and actors fighting to maintain the rule of law. At the same time, support available for civil society active within EU Member States to protect the rule of law, democracy and human rights internally was significantly smaller. To address this problem, the EU introduced in 2021 a new programme, Citizens, Equality, Rights and Values, aimed at strengthening, among others, respect for EU values and helping stakeholders active in that field. This has been a very welcome development, and despite some

shortcomings of CERV, it has been an important milestone in providing aid to organisations that work on the ground in EU Member States to strengthen the rule of law.

It would be a grave misrepresentation of facts if one were to conclude that the rule of law issues in the EU are limited to the new Member States that joined from 2004 onwards. Spain is experiencing a rule of law crisis regarding its judiciary, with the political appointments to the judicial council effectively broken due to politics. Greece struggles with respecting media freedom and sees journalists being put under surveillance and attacked by SLAPPs. The German Federal Constitutional Court caused a legal firestorm by challenging the jurisdiction of the Court of Justice in 2020, prompting the European Commission to launch an  infringement procedure against the country. The rule of law crises are not limited to some particular geographic area or political history; they can quickly metastasise between regional boundaries as playbooks for taking over courts or dismissing concerns over legality. These are universal and can be easily adapted to different cultures.

Looking back at the history of the EU struggling, and frequently failing, to protect the rule of law in Member States, one can hope that EU has learned three important lessons from its two decades of attempts to enforce respect for fundamental values.

Firstly, procedures based on unanimous agreement in the Council don’t work. Attempts to conjure the political will of 26 capitals against one can be undone easily by anti-democratic governments aiding each other or by other considerations – regional friendship or political trades over other Council items. Once again, qualitative majority voting is the only reasonable solution. The  failure of Art. 7 TEU procedure clearly shows that this element of the EU rule of law toolbox must be redesigned.

Secondly, financial pressure works. Governments that disregard the rule of law often remain unmoved by appeals to values and solidarity. However, they do respond to the language of force. In the EU, the strength of financial instruments has been instrumental in incu governments that rely on subsidies and public investments for public support. The EU’s most significant victories in protecting the rule of law have come from blocking funds for Member States that flout common values. While the rule of law conditionality mechanism is not perfect, it offers hope for the efficient application of financial pressure, provided there is the political will to do so.

Thirdly, you can only get so far with law and institutions. Research on the  rule of law resilience in the EU clearly shows that who and how respects the norms is a more important factor than what these norms are and how institutions are set up. Ultimately, this translates into the importance of the rule of law culture and the actions of the authorities that society treats as acceptable and which it does not, leading to protest and resistance. The EU must strive to strengthen the culture of respect for the rule of law. The CERV financing mechanism is a good start, with EU finally diverting significant funding to bolster civil society working inside of the EU, but more has to be done – both in terms of resources but also initiatives and support for Member States – in order to make EU resistant to attempts at demolishing the rule of law.

Jakub Jaraczewski is the Research Coordinator at Democracy Reporting International, a Berlin-based NGO.

SUGGESTED CITATION: Jaraczewski, H.; “The Impact of Enlargement on the EU Rule of Law – a Rough Road with Few Lessons Learned”, EU Law Live, 06/06/2024,  https://eulawlive.com/op-ed-the-impact-of-enlargement-on-the-eu-rule-of-law-a-rough-road-with-few-lessonslearned-by-jakub-jaraczewski/

The 20th Anniversary of the ‘great’ EU Enlargement

Rule of Law in the Enlargement Process? CVM would not help – Depoliticisation will!

Elena Basheska

Enlargement is back on the list of EU priorities. It took a war for the EU to realise how fragile European peace is. The current enlargement policy, which has been rightly described as ‘defensive’,  is largely shaped by the ongoing war in Ukraine and the EU’s need to protect its border rather than by any flourishing democracy or the rule of law in the candidate countries (see previous Symposia on EU Law Live here and here).

In all fairness, not all Member States have perfectly met the accession criteria before joining the club. Yet, time has shown that pre-accession failures may not be easily fixed once the country joins the Union. The EU accession stories of Bulgaria and Romania provide an excellent example of the ineffectiveness and discriminatory nature of the post-accession reformatory tools allowing for learning an important lesson for future enlargement.

Bulgaria and Romania joined the EU on 1 January 2007, i.e. almost three years after the ‘big-bang’ enlargement, when ten countries (eight of which ex-communist), joined the Union. While being separated from the rest of the members-to-be at the Copenhagen Summit in December 2002 (when the then next EU enlargement of 1 May 2004 was decided), due to lack of preparedness, Bulgaria and Romania were successful in obtaining a concrete accession date, promising judiciary improvements and fighting corruption by the time of their accession. The European Council confirmed that ‘the objective [was] to welcome Bulgaria and Romania as members of the European Union in 2007’. However, despite the progress made in the pre-accession process, the two countries did not entirely meet the membership criteria by the end of 2004, when their accession negotiations with the Union were concluded. Neither reneging on its previous commitment to admit the two countries in 2007 nor lowering the accession criteria threshold  were options for the EU. Instead, the EU made an unprecedented step by placing Bulgaria and Romania under a monitoring procedure, called the Cooperation and Verification Mechanism (CVM), which has been intended to assist the two countries to continue the needed reforms after their EU accession by achieving specific benchmarks. The Commission set out  six benchmarks for Bulgaria in the areas of judicial reform and the fight against corruption and organised crime, and four benchmarks for Romania in the areas of judicial reform and the fight against corruption, to assess the rule of law progress in the two countries. The progress against the established benchmarks has been evidenced in regular CVM reports which also included concrete recommendations by the Commission for the further actions of the monitored countries. Failures of Bulgaria and Romania to address the benchmarks adequately, allowed the Commission to apply safeguard measures including suspension of Member States’ obligation to recognise and execute judgments and judicial decisions of the non-compliant state.

The last CVM Report with specific commitments for Bulgaria was issued in 2019, and for Romania in 2022. Considering that the two Member States have made sufficient progress in fulfilling the commitments made at the time of their accession to the EU, the Commission discontinued the reporting under the CVM despite  the opposition of several Member States and its own acknowledgment that further reforms in both countries were required. The CVM monitoring of the two countries officially ended in September 2023, i.e. almost seventeen years after the EU accession of the two countries and upon a positive assessment of the European Commission on the fulfilment of the benchmarks and implementation of the specific commitments by both Bulgaria and Romania (the monitoring will continue within the annual rule of law report cycle). The President of the European Commission, Ursula von der Leyen,  congratulated both Member States ‘for the significant progress they made since their accession to the EU’. The two Member States, according to the Commissioner, ‘delivered on important reforms in [the] past years’.

Ecstatic announcements aside, the President of the European Commission might have been overoptimistic, if not unrealistic, about the extent of such progress and the role of the CVM in achieving it. The current state of affairs in both countries shows that the CVM has not proven to be a particularly effective post-accession tool for achieving substantial reforms in Member States. While figures show that Romania performed better than Bulgaria in the rule of law, the achievements in both countries have been far from ‘significant’. According to the  Eurobarometer findings used in the 2023 EU Justice Scoreboard – 58% of Bulgarians and 37% of Romanians perceived judicial independence in their country as ‘very bad’ or ‘fairly bad’ compared to 36% at the EU level. Furthermore, two Rule of Law indexes that cover the pre-accession years (the World Bank Rule of Law Index , and Our World in Data Rule of Law Index) show a general trend of rule of law backsliding in Bulgaria compared to 2007, when the country became a Member State and when the CVM came in force, contrary to Romania where the rule of law improved since the EU accession of the country, largely due to the domestic institution-building of strong anti-corruption institutions. According to the first source, the control of corruption was better in Bulgaria before the CVM and the EU accession of the country, but worse in Romania. The perceived level of public sector corruption also improved more in Romania than in Bulgaria since 2007, according to the  Transparency International Corruption Perceptions Index . That said the  2023 Eurobarometer figures show that 81% of Bulgarians and 79% of Romanians considered corruption massively widespread in their country, compared to 70% at the EU level.

While surveys and indexes may not give a completely accurate picture, they certainly provide an important indication of the rule of law trends in the respective country. In the case of Bulgaria, such trends are opposite to the conclusions of the European Commission for the ‘significant progress’ in the country. And so is the  evaluation of the European Commission on Democracy through Law (Venice Commission) which identified several issues related to the fight against corruption in the country. In the case of Romania, rule of law trends are more optimistic. That said, however, the rule of law reforms in the country are far from impressive or complete to which  critics of the Venice Commission and the plea for help of Romanian judges and prosecutors fighting for judicial independence to the European Commission testify. Last but not least, the most recent (2024) Special Report on ‘The rule of law in the EU’ of the European Court of Auditors identified several milestones and objectives related to the rule of law in the national Recovery and Resilience Plans of Bulgaria and Romania which are relevant to the CVM benchmarks, testifying that the job has not been done.

Apparently, the rule of law reforms in the two countries are far from complete or ‘significant’. That said, however, Bulgaria and Romania are not much different from other Member States to which the most notable rule of law backsliding in Hungary and Poland (notwithstanding the recent  change of heart of the Commission with regard to the latter), but also  challenges in Greece and Italy testify. The fact that, unlike Bulgaria and Romania, Hungary and Poland have once achieved the rule of law which has been then ‘systematically dismantled’ summarises the differences between these states. However, the reality that some of the Member States had weaker rule of law than others at certain points of time does not justify their different treatment in law (rather than before law) under a vaguely defined framework lacking any specific timeline from the onset – a practice inherent to the pre-accession stage where the EU’s leverage is greater rather than once the country joins the Union of equals. Moreover, while the CVM framework might have played a certain role in stimulating dialogue at various levels, it hardly ever inspired any substantial reforms in itself, if not undermining the rule of law reforms in Bulgaria and Romania. To agree with Ovidiu Gherasim-Proca, the failure or success of states depended not only on technical decisions, ‘but also on multifaceted political intricacies of domestic partisanship and power struggles’. The CVM has been thus rightly described as ‘ineffective’ and ‘unjust’

Neither the introduction nor the lifting of the CVM monitoring has been well-thought-out and free of political considerations. The introduction of the CVM resulted from the EU enlargement commitments made to a specific date and the insufficient preparedness of Bulgaria and Romania by that date. In other words, finding itself ‘in a trap of its

The 20th Anniversary of the ‘great’ EU Enlargement

own making ’, the EU has invented a discriminatory monitoring mechanism to cover its own failures on the pretext of strengthening the rule of law in the two countries. The closure of the CVM in time of criticism by the Venice Commission, pleas for help by national judges and prosecutors, opposition of several Member States, and concerns of citizens over the widespread corruption in their country indicate that the proclaimed ‘significant success’ was not among the genuine reasons for discontinuation of the mechanism. Instead, the war in Ukraine and the need to secure the EU’s external border, coupled with the continued delay of the Schengen membership of Bulgaria and Romania have played a role. While the CVM and Schengen membership have never been formally linked, the former has been used to  block the Schengen accession of the two countries. The Commission’s decision to terminate the CVM has certainly helped Bulgaria and Romania overcome the obstacles to joining the Schengen area, if not being specifically designed for that purpose.

All of the above speaks loudly of the intertwined political considerations and the rule of law. Yet, while extraordinary times require extraordinary measures,  overpoliticisation  of the enlargement process renders the EU’s enlargement law futile and undermines both the transformative effect of the pre-accession process and the EU’s values. The EU  should not compromise on the quality of the rule of law in further enlargement even if perfect scrutiny and preparedness cannot always assure post-accession compliance, as evidenced through the examples of Hungary and Poland. So far, however, the EU has not shown preparedness to put the rule of law first. The most recent drama of the Council asking the Hungarian Prime Minister, Viktor Orbán – who opposed the opening of the accession negotiations with Ukraine – to leave the room during the vote only one day after the Commission unlocked €10.2 billion of funding for Hungary despite the numerous concerns that the country has not fulfilled the demanded reforms for judicial independence is a good illustration of the EU bargaining tactics at the expense of the rule of law.

Depoliticised enlargement policy coupled with fair and consistent accession criteria and merit-based assessment is urgently needed to promote the rule of law in the enlargement process.

Elena Basheska is a Postdoctoral Researcher at CEU Democracy Institute in Budapest.

SUGGESTED CITATION: Basheska, E.; “Rule of law in the enlargement process? CVM would not help – depoliticisation will!”, EU Law Live, 05/06/2024, https://eulawlive.com/op-ed-rule-of-law-in-the-enlargement-process-cvm-would-not-help-depoliticisation-will-by-elenabasheska/

The 20th Anniversary of the ‘great’ EU Enlargement

The Impact of Enlargement on Human Rights in the EU: Disentangling negative Trends

Beáta Huszka and Zsolt Körtvélyesi

How enlargement policy has impacted the protection of fundamental rights in the EU is rarely addressed by scholars, in contrast to the  much-discussed topic of how enlargement affects human rights in accession countries. In this Op-ed, we offer tentative answers to this question, which seems highly relevant in today’s Member States of the EU, where the founding values of liberal democracy, including human rights, are increasingly under attack. Although the popularity of authoritarian illiberal ideas is part of the global zeitgeist, it is worth asking how post-2004 enlargement has influenced the state of human rights in the EU.

The protection of human rights and democracy is at the heart of EU conditionality (Arts. 2 and 49 TEU). Putting this commitment into practice has proved challenging, even if accession is usually considered to be the most potent tool for influencing domestic developments. We first document how the human rights situation failed to improve with post-2004 enlargement waves to facilitate a discussion of the lessons this bleak picture teaches us.

Jean Monnet said that  ‘Europe will be forged in crises, and will be the sum of the solutions adopted for those crises’, while Churchill more generally advised that we should ‘never let a good crisis go to waste’. There is now a lot that can go to waste in Europe, but also a lot that can make Europe and the Union more resistant to future crises. What might be less apparent is how many of the current challenges are directly connected to enlargement. As war now returns to Europe, enlargement has been used as a means of supporting the victim of aggression, Ukraine, after it was attacked by a regime that lost its war of appeal against Europeanisation. The contrast, in Timothy Snyder’s words, is that European ‘expansion had nothing to do with militarism and everything to do with its inherent attractions’. Add to this that the single case of ‘de-enlargement’, Brexit, seems to have lost the limited but decisive appeal it once had in the UK. On the other hand, ‘shallow conditionality’ and the long learning curve of post-accession conditionality after 2004 led to a situation whereby the EU effectively funded regimes on their path to becoming non-democracies in Central and Eastern Europe. This, in turn, has created internal challenges that have threatened to undermine EU-level responses to other crises, including not only Ukraine but also migration and the very areas of resilience to democratic backsliding and enlargement. The danger of authoritarianism has become hard to ignore.

The best-accepted comparative measurement of democracy and human rights is the V-Dem dataset. Focusing now on the post-socialist region (Estonia, Latvia, Lithuania, Poland, Czechia, Slovakia, Slovenia, and Hungary, which joined in 2004; Romania and Bulgaria in 2007; and Croatia in 2013), we see a slight trend to deterioration, with two exceptionally strong cases of backsliding in Poland and Hungary.

Table 1: V-Dem Human Rights Index for Member States that have joined the EU since 2004. The names of countries associated with negative trends (score declining by at least three percentage points) are highlighted in bold.

The 20th Anniversary of the ‘great’ EU Enlargement reform

0

It would be misleading, however, to treat this trend as specific to the Member States that joined after 2004 or even to the post-socialist region. Some pre-2004 Members have also undergone domestic developments that undermine Article 2 commitments, and the trend conforms to the general picture of a slight retreat that we see in the New Member States, again with the notable exception of the significant retrenchment in Poland and Hungary.

Table 2: V-Dem Human Rights Index in pre-2004 Member States. The names of countries associated with negative trends (score declining by at least three percentage points) are highlighted in bold.

0.93 -0.01 Belgium

0.96 0 Denmark

0.96 -0.01

0.96 -0.01 Finland

France 0.95 0.92 -0.03

Germany 0.97 0.95 -0.02 Greece 0.96 0.88 -0.08 Ireland 0.95 0.96 +0.01

Italy 0.94 0.92 -0.02

Luxembourg 0.95 0.95 0

Netherlands 0.95 0.92 -0.03

Portugal 0.96 0.92 -0.04

Spain 0.96 0.95 -0.01

Sweden 0.98 0.96 -0.02

United Kingdom* 0.94 0.90 -0.04

* The UK left the EU in 2020, so data for 2020 are used instead of 2023.

The data suggests that there is no clear East-West divide, but rather, the danger has emerged in and from individual States where systemic challenges appear – and the real challenges in this respect come from the region that joined after 2004. The cases of Poland and Hungary are even more striking as the latter were considered forerunners of ‘Europeanisation’. The fact that a similar trend is now present in the Western Balkans (countries with a more extended history of engagement) at the pre-accession stage is a clear cause for concern. Whereas States that joined the EU in the past two decades improved their human rights performance at the pre-accession phase (and relapsed afterwards), we do not see the same trend in the current candidate countries in the Western Balkans (with the exception of Montenegro).

Table 3: V-Dem Human Rights Index in the Western Balkan candidate states. The names of countries associated with negative trends (score declining by at least three percentage points) are highlighted in bold.

Again, the problem is not some geographical curse but rather pertains to the danger of systemic efforts to undermine democracy and human rights in individual countries. We may add to this the lower starting scores of countries in the region and the fact that it was Serbia, the country with the highest score in 2010, that underwent the steepest decline – and during a period when the country was negotiating 22 out of the 35 chapters required for EU accession. These Western Balkan countries were awarded candidacy at different points in time, but they have been involved in the accession process since at least 2003, when the Thessaloniki Summit offered them clear membership prospects. By now, five states from the region are candidates, and four have entered negotiations.

Even considering the trend of global backsliding, it can be safely concluded that enlargement did not have the intended positive effect on human rights protection in the EU or the enlargement countries. Regarding the impact of enlargement on human rights in the EU as a whole, this seems to have been negative overall, as illiberal, authoritarian regimes and political forces are now more prevalent in Central and Eastern Europe, allied to European far-right actors and movements. Such coalitions have emerged in relation to the rights of migrants and refugees, reinforcing the pre-existing reality of ‘Fortress Europe’. Although countries such as Germany and Sweden demonstrated a welcoming approach to MiddleEastern refugees in the aftermath of the 2015 migrant crisis, the EU’s new migration pact adopted in April 2024  fails to live up to existing commitments in asylum law. If new rounds of accession are associated with the illiberalism we are witnessing today, this might push EU decision-making further towards policies that undermine EU core values.

Enlargement fails to  guarantee respect for human rights despite the rigorous human rights conditionality applied to EU aspirants and the rights protection provided by EU law. While engagement in the latter process may raise the level of human rights, as happened in Central and Eastern Europe, this buoyancy has proved temporary and certainly does not seem to operate under duress when rogue players arise with clear intent and systemic efforts to undermine democracy and human rights. Moreover, after pre-accession conditionality pressure disappeared, many current

Member States in Central and Eastern Europe disregarded earlier commitments regarding human rights, which softer institutional mechanisms could not counterbalance. With membership secured and human rights and democratic guarantees only weakly anchored domestically and socially, institutional constraints proved easy to undo. The historical inflow of European funds to the region, used in a free – i.e. democratically unchecked – manner, ended up supporting and facilitating authoritarian tendencies, akin to the rentier state phenomenon. While backsliding seems to have been halted in Poland due to still-powerful domestic actors, developments in Slovakia show that the illiberal script remains contagious: actors without adequate democratic commitments may enjoy the best of two worlds: the status and material benefits of EU membership and scaling back meaningful domestic checks that risk their power. Backsliding within the EU has the additional effect of undermining accession conditionality: How credible are requests to adopt thoroughgoing reforms as a condition of membership when those very values are being undermined on the other side of the border?

This is not to deny that we have come a long way since systematic challenges to core values first arose in the EU. Building and implementing institutional and procedural guarantees for core values proved to be a huge learning curve for the EU, and while there is still a lot to be desired, the building blocks are now present. Legal procedures for identifying violations (primarily infringement procedures and the Article 7 procedure) are combined with financial sanctions, both on the judicial and political sides. Political debates are more ‘European’ than ever, with most decisive (and divisive) topics now having a clear EU component, making EU institutions the primary scene for making politics in Europe. The European Parliament has found its voice in terms of putting pressure on the Commission to protect democracy and human rights. Credibility and consistency should still be improved, as well as local ownership – finding domestic allies for building sustainable support for democracy and human rights is crucial. Yet what we see now is often the opposite of this coalition building. The Commission  ended the rare form of post-accession conditionality, the Cooperation and Verification Mechanism (CVM), for Bulgaria and Romania (on CVM, see the contribution from Elena Basheska in this volume). Domestic actors (an alliance of Romanian prosecutors) had to step in to contest the decision as premature and  sue the Commission on this ground, fundamentally arguing that  ‘the benchmarks are far from met, especially those related to the effectiveness of the judiciary and the fight against high-level corruption’. A group of Romanian prosecutors and judges expressed their fear that by terminating the CVM, ‘they are no longer shielded from retaliatory measures against their courage  [in] reveal[ing] the true situation of the rule of law in Romania’. The fate of LGBTIQ rights is also a good litmus test, with the Commission closing an infringement procedure it started against Poland because several local governments declared themselves ‘free from LGBT ideology’ without an acceptable resolution in sight. In Romania, the NGO ACCEPT has been lobbying the Commission for years to start an infringement procedure against their country over the violation of LGBTIQ rights, to no avail.

The emerging framework of post-accession conditionality, developed in response to backsliding in Hungary and Poland, can now function as a strong incentive for countries that economically depend on EU transfers. Yet, it is unrealistic to expect that major political change – which may revert to democratic backsliding – can come from the ‘outside’; it depends largely on domestic political developments. What the EU can and should do is to make sure that EU leverage does not boost autocratic tendencies, which it has been doing for too long. It is hard to imagine continuing public support for the regime that turned Hungary into a non-democracy without the inflow of unprecedented EU funding. Similarly, the EU’s tendency to support strongmen ‘who can deliver’, even when this ability is derived from autocratic features, harms the democratic European landscape. EU conditionality can and did lead to the adoption of laws and the creation of institutions, but short of sustained and genuine commitment to meaningful reforms, these initiatives are vulnerable to subversion. LGBTIQ rights in Hungary were consolidated at a relatively high level before 2010, but are now under recurrent attack by the government. Rights defenders thus fall back on legal instruments such as litigation at the CJEU and the ECtHR, where winning cases have been forthcoming, but implementation can be easily obstructed by domestic authorities.

The primary political motivation for winning elections plays out differently in a landscape that is not democratic. It can easily turn into the incentive, unsurmountable through external conditionality, of maintaining and reinforcing nondemocratic features. Where electorates remain responsive to values fundamental to the functioning of the EU, and where the latter are combined with meaningful conditionality – aimed at substantive goals, not only formal compliance – this can change the calculus. At a minimum, conditionality should stop giving credit (both symbolic and material) where it is not due; otherwise, we do a disservice to the Union and the societies in question. The temptation to use enlargement and other forms of recognition to pay for favours and reward signs of loyalty is especially strong given the current challenges and threat of the Russian dictatorial regime. Weighing up geopolitical interests should not mean that the EU gives up its core values, as this risks turning geopolitical challenges into internal ones. True, providing meaningful incentives that keep States on track while applying effective conditionality that has consequences involves navigating difficult terrain. Without sustained efforts to build up the credibility of incentives and sanctions, we cannot make sure that illiberal forces, inside and outside the EU, will get the memo that undermining core values, including democracy and human rights, does not pay off. The twentieth anniversary of the most ambitious round of enlargement may serve as a reminder that we are not there yet.

Beáta Huszka has been a researcher at UCL SSEES since February 2023. She is also an associate professor at the ELTE faculty of social sciences in Budapest (currently on leave). Previously, she was an MSCA Fellow at ELIAMEP, Athens, Greece (2019–2021). Her publications on the topic include Human Rights on the Losing End of EU Enlargement: The Case of Serbia (JCMS)  and EU Enlargement Policy and Human Rights (European Union and Human Rights: Law and Policy, OUP).

Zsolt Körtvélyesi is currently an  MSCA research fellow (MINOTEE: Minority Rights – Towards Effective European Enforcement) at Central European University, Vienna, normally based in Budapest at the Centre for Social Sciences and ELTE University. His recent publications include  Transcending the Individual/Collective Minority Rights Divide: A Procedural Solution (ICLQ) and  The Illiberal Challenge in the EU: Exploring the Parallel with Illiberal Minorities and the Example of Hungary (ECLR).

SUGGESTED CITATION: Huszka B. & Körtvélyesi Z.; “The Impact of Enlargement on Human Rights in the EU: Disentangling Negative Trends”, EU Law Live, 7/06/2024,  https://eulawlive.com/op-ed-the-impact-of-enlargement-on-human-rights-in-the-eu-disentanglingnegative-trends/

The 20th Anniversary of the ‘great’ EU Enlargement

Enlargement of the EU since 2004: some Experiences from the UK before Brexit

Catherine Barnard and Fiona Costello

Although the expansion of the EU has been an ongoing process since its inception, the 2004 enlargement was the greatest single expansion, with ten countries joining the EU, including eight from central and Eastern Europe (‘A8’). The UK, Ireland and Sweden were the only countries which opened their labour markets immediately to workers from these new Member States. This meant that around 70% of migrants from the A8 headed for  Ireland and the United Kingdom.

Following the introduction of the EU Settlement Scheme (EUSS), as part of the UK’s post Brexit arrangements, we now have a clearer idea of how many EU migrants came to the UK. More than 6 million EU free movers (EU27) have received either settled or pre settled status in England. Of these 6 million applications almost 2 million are nationals from these ten new Member States 2004 (as of end of March 2024, see Fig 1). The subsequent accession of Romania and Bulgaria (‘A2’ countries) in 2008 has added a further 1.5 million applications. This means that more than half of those who exercised their free movement rights came from the 2004 and 2008 States. In many ways these numbers are an important indicator of the success of the internal market and its free movement pillar.

Fig 1- (UK) Concluded Applications: Outcome Type: Settled (SS) and Pre Settled Status (PS) by Nationality, August 2018- March 2024 more here

So, what have their experiences been? On the one hand there are the ‘Eurostars’, to use language from Favell, those more mobile seeking a cosmopolitan and post national borderless Europe who (mostly) have access to the rights and protections afforded by free movement – the right to equal treatment and to access support if needed (welfare benefits).  On the other hand, there is another group – and the group our work focuses on – namely EU migrants doing low paid and low skilled work in (rural) England, most of whom came from the A8 and A2 countries, to whom much less attention has been paid. While for the first group, free movement does generally  represent ‘an enormous enrichment of personal freedoms of citizens and societies’, for the second group, as we show in our book ‘Low Paid EU Migrant Workers, the House, the Street, the Town’, their experience is one of precarity and vulnerability. Our research therefore tells an uneasy truth – that the benefits of the internal market can be unevenly spread amongst its citizens.

Our book is the product of four years research in the town of Great Yarmouth in Norfolk , a town which has seen significant EU migration, manly from Lithuania and Poland but also Portugal and Romania.  The book examines the lives of 8 migrant workers living in an HMO (house of multiple occupation), all from Latvia and Lithuania, as well the lives of about 1,400 EU nationals who have sought access to help from a local advice charity in Great Yarmouth, GYROS, almost all of whom arrived in the UK after 2004. It details many aspects of the experiences of EU nationals who moved to Great Yarmouth: work, housing, welfare benefits, debt, health. It also examines how the many problems they face are resolved.

Our work shows that this group of EU nationals are experiencing significant clustering of (legal) problems and, due to precarity (of work, of housing, of income, debt issues), are unable to address those issues by enforcing their rights via traditional legal mechanisms, for example by seeking advice from a solicitor, let alone bringing a claim in an employment tribunal. Apart from issues around language (the majority of those featured in our research were non-English speakers), there are issues around the cost of enforcing rights. Take for example the case of Adi* seeking help to receive payment for the work he had undertaken:

Client has been advised at the CAB to come to GYROS for us to help him write the letter to his employer requesting for wages to be paid. I asked the client why CAB didn’t help him with the letter, he explained that he did not understand because of the language barrier. Client was under a lot of stress and overwhelmed that he couldn’t get the help he needs so far, and that his dishonest employer will get away with not paying him. [Lithuanian, male, lorry driver]

Poor working conditions are also commonly reported by those we speak to in our research. For example, many EU-8 nationals speak about routine refusal of toilet breaks when working in food processing factories:

Client explained he asked for a toilet break but was told by his supervisor to wait until breaktime, when the client asked again, he was told he can go, but doesn’t need to come back. [Polish, male, food processing factory]

In fact, the client was sent home that day by the agency’s site manager, because he asked for a toilet break. The next day the client sought help from GYROS. GYROS called the agency and following this, the client did return to work, switching to the night shift so he would not have to work with the supervisor again. Although the client was advised by GYROS to come back if he wanted assistance to contact his union, it is unclear if this took place. It may be, as in many of the case notes and in discussion with the caseworkers, that clients ‘choose’ to continue to work rather than enforce their rights. We uncovered similar issues with housing :

Client complained about her landlord, as he does not give her any tenancy agreement and now the landlord is complaining about the children, [saying] that she needs to keep them quiet, and she feels that he will ask her to leave. So, client is looking for another property. Client pays £230 p/w [per week] for 2 rooms in that house. One is for the children and the other is the living room that now is a room for client and her husband… With the consent of the client, I enclosed GYROS details for them to contact us if they need further information, as client does not speak English.

Here again we have a landlord ignoring their legal responsibilities and a tenant who fears homelessness should they address their (legal) rights with their landlord directly. The better (i.e safer, quicker) option is to find somewhere else to live. Clients tend to present to GYROS when in crisis, or when problems have become unmanageable. This urgency drives a pragmatic response to resolving issues- a new shift, a new job, a new landlord – without getting to the root cause of the legal problem, namely the poor employment practice of a local employer.

Our book provides many such examples taken from the GYROS dataset and our fieldwork. These case notes tell a different, and rather bleak, story of free movement to (small) towns and rural areas as compared to the stories of the metropolitan Eurostars. It is a story of vulnerability, exploitation, and powerlessness. Perhaps it is unsurprising that those with more physical, social and linguistic capital, and professional (transferable) qualifications, move through the single market and take full advantage of its opportunities, than those without.

However, the story of migrant workers in Great Yarmouth is a complex tale. It is also a story of hope and ambition (with many following an  ‘any job’, and then a ‘better job’ trajectory). Precarity and debt is not the whole picture either. For the majority of those  we spoke to the decision to come to England is (largely) still perceived as a good one for those who have decided to stay and get EU Settled Status (ie the right to stay and work after Brexit).  Those who moved here twenty years ago (i.e after 2004 enlargement) have made a home in the UK. Free movement has not been circular or temporary but rather long term. Parents have children in the UK, some of those who came in the early 2000s now have grandchildren.

Our research thus offers another insight: that free movement is a process not an event. People put down roots in their new community. It is clear that nationals from these EU-8 Member States took advantage of their free movement rights and have benefited in some ways but faced more barriers than the Eurostars. There is a further issue: those who put down roots, whether Eurostars or the low paid, in the host country are ageing and will become increasingly reliant on that state for healthcare and benefits. This raises profound challenges for any receiving State, challenges which are currently largely being ignored.

In conclusion, while this Op-Ed offers a rather sobering reflection on the enlargement of the EU since 2004, the streets in Great Yarmouth also show the increased diversity and cultural, linguistic and other benefits and opportunities enlargement has brought to the town (the Portuguese cafes and restaurants are a good and visible example) over the past twenty years. The local residents have not always appreciated that, but there are signs that as the children of migrant workers and those of the locals attend school together more integration and understanding is occurring.

Catherine Barnard is a Professor of European Union Law and Employment Law at the University of Cambridge, and Senior Tutor and Fellow of Trinity College, Cambridge.

Fiona Costello is Researcher at the EU Migrant Worker Project, Faculty of Law, University of Cambridge, and Fellow and Tutor, St. Edmund’s College, Cambridge.

SUGGESTED CITATION: Barnard, C. and Costello, F.: “Enlargement of the EU since 2004: some Experiences from the UK before Brexit”, EU Law Live, 10/06/2024, https://eulawlive.com/op-ed-enlargement-of-the-eu-since-2004-some-experiences-from-the-uk-before-brexit/

The 20th Anniversary of the ‘great’ EU Enlargement

Enlargement of the EU and the Euro: Challenges for future Member States

Phedon Nicolaides

Introduction

Within ten years of their accession to the European Union, seven of the ten countries that joined in 2004 succeed to adopt the euro as their currency. Only the Czech Republic, Hungary and Poland have remained outside the monetary union. Of the remaining three countries that joined later in 2007 & 2013, Croatia also managed to comply with the Maastricht convergence criteria and to adopt the euro in 2023.

The fact that all newer Member States were less prosperous than the older Member States did not appear to be an insurmountable obstacle to their entry into the monetary union. The consequences, however, of having a common currency and no control over monetary policy can be dire in times of economic upheaval. The financial crisis that broke out in 2008 and then morphed into sovereign debt crisis brought close to default five Member States of which only one had joined in 2004. This is corroborating evidence that sound economic policies are more important than income levels when different countries share the same currency.

All countries that aspire to accede to the EU in the future are also less prosperous than the average Member State. But the experience with the EU’s monetary union demonstrates instead that if a country gives up its own currency and relinquishes monetary policy to a supranational institution such as the European Central Bank, then it needs to have a competitive and flexible economy and sustainable public finances.

This is the first important lesson that future Member States should draw from the experience with the monetary union since its creation in 1999. They will have to improve their economies and the management of their public finances.

The Member States in the euro area have also, rather belatedly, established the means for mutual assistance in case of crises. The setting up of the European Stability Mechanism was controversial (see the arguments in case C-370/12,  Pringle), but it succeeded to help five Member States to overcome their debt problems. It was the conditions that were attached to the ESM financial assistance that proved to be even more controversial.

And here lies the second most important lesson for future Member States. They will not be alone in case of need. There will be help. But, help will be politically painful and socially costly. Mutual assistance is granted only on condition that extensive economic, institutional and legal reforms are undertaken by the beneficiary country.

In fact, successful membership of the monetary union entails that reforms are undertaken before accession to the EU. The rest of this article examines what will have to be done by the candidate countries in their preparation for accession.

Conformity with EU law

The accession of a country to the EU is preceded by lengthy and detailed negotiations. Their purpose, according to Article 49 TEU, is to determine ‘[t]he conditions of admission and the adjustments to the Treaties on which the Union

The 20th Anniversary of the ‘great’ EU Enlargement reform

is founded’. Indeed, with every enlargement, the EU has had to do a certain minimum adjustments to its Treaties by, for example, increasing the number of members of the European Parliament. However, most of the adjustment falls on the applicant country. In this sense, the word accession ‘negotiations’ is a misnomer. In practice they are more like entrance examinations. The applicant country has to reform its laws, policies and administrative structures to conform with EU law or as used to be called the ‘acquis communautaire’ [1].

Convergence: Precise thresholds, subjective assessment

Article 3(4) TEU which defines the objectives of the EU states that ‘[t]he Union shall establish an economic and monetary union whose currency is the euro’. According to Article 119(2) TFEU, the activities of the Union and Member States ‘shall include a single currency, the euro’. It follows that the euro is the currency of all Member States. It is very unlikely that any future Member State will be able to secure the same opt-out as that which was granted to the UK or Denmark in 1991 and 1992, respectively. The consent of those two countries was needed for agreement on the Treaty of Maastricht. Any new Member State will not have the same bargaining power.

What is more likely to happen at forthcoming enlargements of the EU is that new Member States will be designated as ‘Member States with a derogation’. They will remain in derogation as long as the Council considers, under Article 139 TFEU, that they do not ‘fulfil the necessary conditions for the adoption of the euro’. As Member States with a derogation, they will have to conduct their own monetary policy, issue their own money, manage their exchange rate and will not be subject to the coercive parts of the excessive deficit procedure under Article 126 TFEU. But they will have to conform with all the other rules concerning public spending, public debt and correction of macroeconomic imbalances.

Moreover, they will have to put their economies on a convergence path so as to be able to ‘fulfil the conditions for the adoption of the euro’.  In this respect, they will be subject to period assessment by the Commission and the European Central Bank [ECB] on their progress. The periodic assessment will examine the conformity of their legislation on monetary issues and institutions, especially on the independence of the central bank which, once the new Member States adopts the euro, will participate in the Governing Council of the ECB.

Whether the conditions are right for the adoption of the euro will be determined according to the convergence criteria laid down in Article 140 TFEU. They are:

Price stability: The rate of inflation must not be higher than 1.5 percentage points than the average rate of the best three euro Members.

Convergence of interest rates:

Interest rate must not be higher than 2 percentage points than the average rate of the best three euro Members.

Sustainability of government finances: Absence of excessive budget deficit [Article 126 TEFU]. Public debt should not exceed 60% of GDP. However, Protocol 13 on the convergence criteria provides that if the deficit exceeds the 3% threshold, it must have ‘declined substantially and continuously and reached a level that comes close to the reference value; or, alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value’. In addition, if public debt exceeds the 60% threshold, it must be ‘sufficiently diminishing and approaching the reference value at a satisfactory pace’.

Exchange rate stability: Participation in the exchange rate mechanism for at least two years without any devaluation.

When the euro was established in 1999, several Member States had deficit and debt values exceeding the Treaty thresholds. In subsequent enlargements of the euro zone, some new Members also exceeded the thresholds. In all cases, they were deemed to have declined substantially or to be sufficiently diminishing. Therefore, the assessment of whether the convergence of future Member States will be durable will depend also on subjective elements. This is even more so because Article 140 TFEU further stipulates that ‘[t]he reports of the Commission and the European Central Bank shall also take account of the results of the integration of markets, the situation and development of the balances of payments on current account and an examination of the development of unit labour costs and other price indices.’

At the same time the example of Sweden, which carried out a referendum in 2003 with a negative result, suggests that no country will be forced to adopt the euro against the wishes of its citizens, even if formally it complies with all the convergence criteria. The case of Denmark is also instructive in this respect. Despite the fact that Denmark enjoyed an opt-out from the obligation to adopt the euro, it too carried out a referendum in 2000 proposing to citizens to join the euro area. The government was wholeheartedly behind membership of monetary union. However, the proposal was defeated by a small margin. But, it was sufficient to stop the Danish government from proceeding against the wishes of its electorate.

Therefore, entry into the euro area will not take place at the same time as accession to the EU of new Member States. They will be designated as Member States with derogation, will have to steer their economies towards converge with the euro area and will have to wait until both economic and domestic political conditions are right before adopting the euro.

New monetary environment

Future Member States, like existing Member States, will encounter something that does not exist today: The digital euro. This will be a form of digital currency, like the credit or debit cards issued by banks, but backed by the ECB. Unlike other privately-issued digital money, the digital euro will be a safe asset.

In June 2023, the Commission proposed legislation for the establishment of a digital euro (COM(2023) 369 final). The ECB delivered its positive opinion on the proposal in October 2023. However, the ECB also expressed concern that the legislation underpinning the digital euro ought not to interfere with its independence and this exclusive competence in deciding when to issue the digital euro and its intrinsic technical features.

The specific features of accounts that will hold the future digital euro are  still being debated. An issue which is still unresolved and is likely to affect future Member States is a possible limit on the amount of digital euro that may be held in any individual account; the so-called ‘holding limit’. This is because the safety of the digital euro could destabilise commercial banks. For example, in case a bank encounters financial difficulties, depositors would have a strong incentive to shift their money to digital euro accounts. That would precipitate the collapse of the bank. Consequently, digital euro accounts will have to be subject to rather low holding limit. At the same time, however, the holding limit should not be too low as to make such accounts impractical. The point, however, is that, given that all prospective Member States, and some current Member States, are relatively poorer than the EU average, the level of the holding limit of digital euro accounts may have significant implications for their banking systems and for the transmission of the single monetary policy in their economies.

The digital euro is one of the unknowns that will have to be negotiated in future accessions to the EU.

Conclusions

Future Member States will have to adopt the euro when they satisfy the convergence criteria after they accede to the EU. Their convergence will be assessed on the basis of both hard quantitative and soft qualitative criteria. Successful membership of the monetary union will depend on competitive and flexible economies and sustainable public finances. How a future digital euro may impact on their economies is still unknown. Ultimately, however, they will have to persuade their citizens that they will be better off by having the euro as their currency.

[1] See P. Nicolaides,  Enlargement of the EU and Effective Implementation of EU Rules, (Maastricht: European Institute of Public Administration, 2000); P. Nicolaides et al,  A Guide to the Enlargement of the European Union (II): A Review of the Process, Negotiations, Policy Reforms and Enforcement Capacity, (Maastricht: European Institute of Public Administration, 1999); P. Nicolaides and S. Raja Boean,  A Guide to the Enlargement of the European Union: Determinants, Process, Timing, Negotiations, (Maastricht: European Institute of Public Administration, 1997).

Phedon Nicolaides is Professor at the University of Maastricht and at the University of Nicosia.

SUGGESTED CITATION: Nicolaides, P.; “Enlargement of the EU and the Euro: Challenges for Future Member States”, EU Law Live, 12/06/2024, https://eulawlive.com/op-ed-enlargement-of-the-eu-and-the-euro-challenges-for-future-member-states/

20 Years of the ‘new’ Member States in the EU’s common commercial and foreign Policy: reflecting on practical Examples

Nicolaj Kuplewatzky

Enlarging the European Union is more than the territorial expansion of European membership rights and obligations to other States and peoples. It is part of the process of forming ‘an ever closer Union’ of the common values enshrined in Article 2 TEU. That values-based model is now more topical than ever: geopolitics is back, as priorities have shifted from a world shaped by bilateral and multilateral trade agreements to one where levers of power, the alignment of values, and hence fragmentation inherently dominate the trade sphere.

Upon accession in 2004, the ‘new’ Member States brought their own relationships, objectives, and priorities to the trading table. Without the ambition of completeness, I shall offer three examples of how those ‘new’ voices played out in the European Union’s common commercial and foreign policy.

The first area is trade defence remedies (anti-dumping, anti-subsidy and safeguard measures). While the European Union has long been one of the main users of trade remedies, only four out of the ten ‘new’ Member States had resorted to the imposition of anti-dumping duties prior to accession (that is, Czechia, Latvia, Lithuania and Poland) (see Sandkamp, p. 17). Malta had no laws or regulations in place to tackle injurious trade practices (see G/ADP/N/1/ EEC/2/Suppl.6, p. 3). Upon accession on 1 May 2004, any on-going investigations and measures taken by those States lapsed as the European Union’s existing trade defence measures were automatically extended to the (then) EU25 (see the 2004 Annual Report on the use of Anti-Dumping, Anti-Subsidy and Safeguard Measures,  COM(2005) 360 final, p. 3). In preparation for those changing times, the Commission had involved ‘the representatives of the acceding countries … as active observers in the work of the Anti-dumping and Anti-subsidy Advisory Committees’ (see the Annex to COM(2005) 360 final, Section 3), while a special task force of DG TRADE evaluated proposals for transitional measures to ensure traditional trade flows to the ‘new’ Member States in order to cushion the effects of the newly-extended measures, such as through ‘enlargement reviews’ (see the  Annex to COM(2007)171 final, Section 3 respectively).

That transitional phase passed quickly. Already in 2005, the Polish Freezing Industry Union requested the initiation of a safeguard investigation into frozen strawberries, which, although ultimately terminated, arguably led to anti-dumping measures on the same product in 2007. Now mostly forming part of the ‘liberal’ voting block in the Working Party on Trade Questions and the Trade Defence Instruments Committee, during the negotiations on TDI Modernisation (the first major overhaul of the EU’s trade defence instruments since 1995), a number of ‘new’ Member States played a pivotal role in maintaining, at least generally, the application of the ‘lesser-duty rule’ in anti-dumping and anti-subsidy investigations to better balance EU producer interests with those of EU users and other downstream industries (see Ministry of Foreign Affairs of the Netherlands, IOB evaluation,  Nr. 442 p. 74.) [The ‘lesser-duty rule’ is used by the Commission to moderate the effects of trade defence measures and so mandates that that institution imposes duties only up to the level necessary to remove injury to EU producers of the product under investigation—as opposed to the (sometimes far higher levels) of dumping/subsidisation found in that product.]

The 20th Anniversary of the ‘great’ EU Enlargement reform

Second, China’s 2021 imposition of economic restrictions on Lithuanian products and companies (after Taiwan opened what China viewed as a ‘de-facto embassy’ in Vilnius) led to the realisation that the European Union was missing a policy tool to respond to the weaponisation of economic dependencies. [That incident also resulted in the European Union filing a WTO case, China – Measures Concerning Trade in Goods (DS610), for which the Union requested a suspension of proceedings in January 2024.] The resulting policy search triggered the Commission’s announcement of (what is now) the  Anti-Coercion Instrument. Forming part of the steady shift from a rules-based to power-based international trade order, that measure seeks to deter third countries from targeting the European Union and the Member States with economic coercion through measures affecting trade or investment (such as through the imposition of tariffs, restrictions on trade in services, or restrictions on access to foreign direct investment). As part of the same reorientation (and recalibration), Czechia, Estonia, Cyprus, Malta, Latvia and Slovakia  reportedly also formed part of the block to force the Commission to amend its proposal for (what ultimately became) the  International Procurement Instrument—the first investigation pursuant to which was commenced in late April 2024 into China’s ‘serious and recurrent impairment of access of Union economic operators’ to that country’s medical devices market.

Third, even more recently, the ‘new’ Member States have begun actively shaping the European Union’s Common Foreign and Security Policy. By reason of their physical distance to Russia, and well acquainted with that country’s current political philosophy of ‘might makes right’ (see, in that context,  Rihard Kols in the 2023 Latvian Foreign and Security Policy Yearbook, p. 20), Estonia, Latvia, Lithuania, and Poland reportedly pushed for tougher EU sanctions measures early on during the continuing war of aggression against Ukraine (such as on  trade in uranium and other civil nuclear cooperation). Moreover, until  Council Decision 2020/1999, the same Member States arguably led the Member States’ sanctions policies with ‘Magnitsky-type’ measures to target general human rights abuses and corruption (named after the Russian whistleblower Sergey Magnistsky who died in pretrial detention), even before the European Parliament had called for such measures. With the economic and social repercussions of the Russia-Ukraine war unfolding, the ‘new’ Member States have also begun leveraging the unanimity rule of Article 29 TEU, with some reportedly demanding, in the discussions surrounding a possible reform of its use, the need to protect vital national interests (on the possible reform, see also the contribution by Graham Butler in this Symposium).

Further evidence of the ‘new’ Member States impacting EU trade (and foreign) policy is still taking shape: with Bulgaria, Hungary, Poland, Romania and Slovakia having already forced the Commission to act through a regional safeguard measure on a glut of imports of wheat, maize, rapeseed (colza) and sunflower seeds arising from the war on Ukraine (see  Regulation (EU) 2023/1100), in March 2024, Latvia proceeded to  prohibit the importation of certain agricultural and feed products from Russia and Belarus into its territory, with  Poland publicly considering to follow suit. The Commission’s  proposal for EU-wide measures to prevent a serious disturbance on the market (as foreseen under Article 32(d) TFEU) followed soon after, and was adopted by the Council on 30 May 2024. This latest development may be exemplary of the overall nuanced approach that the ‘new’ Member States have taken regarding the European Union’s common commercial and foreign policy: advancing, from within, a policy of common values while nevertheless ensuring the protection of important national objectives and priorities.

Nicolaj Kuplewatzky is Référendaire in the Chambers of Advocate General Ćapeta at the Court of Justice of the European Union

SUGGESTED CITATION: Kuplewatzky, N.; “20 years of the ‘new’ Member States in the EU’s common commercial and foreign policy: reflecting on practical examples”, EU Law Live, 14/06/2024, https://eulawlive.com/op-ed-20-years-of-the-new-memberstates-in-the-eus-common-commercial-and-foreign-policy-reflecting-on-practical-examples/

Linguistic Diversity in an enlarging European Union

Anna Krisztian

The 2004 enlargement of the European Union brought about more diversity in the EU in many different respects. Ten additional political and legal systems and cultures had to be smoothly integrated into the Union of 15, bringing with them a bundle of new challenges. The European Union comprises a unique multilingual supranational legal order, in which linguistic diversity exists at different levels: there is linguistic diversity within Member States, between Member States, and also in EU institutions; in their everyday operation, in their communication with citizens, as well as in their formal and informal decision-making procedures, including the publication of legislation and non-binding documents. The EU has an obligation to protect and promote linguistic diversity on its territory (see  Article 3(3) of the Treaty on European Union and Article 22 of the Charter of Fundamental Rights of the EU), and to respect Member States’ national identities at the same time (see Article 4(2) of the Treaty on European Union).

The ‘big bang’ enlargement also resulted in the recognition of nine additional languages as official languages of the EU, which meant almost doubling the number of official languages at the time. Since then, four additional languages were added to the mix. Whereas the total number of official languages at present (24) is close to the number of Member States (27), contrary to common belief, the ‘one language per Member State’ rule never existed officially. And this is not only because some Member States share certain languages, but also because the accession of a new Member State does not automatically bring about the designation of a new official EU language. Irish for instance became an official language only in 2007, 34 years after the country joined the bloc. And even then, temporary derogatory measures were put in place to allow for the building up of sufficient capacities to translate into and from Irish in EU institutions, providing the Irish language with full parity with other official languages as late as in 2022. Such a derogatory period also applied to the Maltese language for three years after Malta’s accession in 2004, for similar reasons. Likewise, a Member State’s withdrawal does not automatically impact the number of official languages. English remained an official language of the Union, despite the United Kingdom’s withdrawal from it. In fact, English, like all the other official languages of the European Union, is listed under Article 1 of  Regulation 1/1958. This regulation, which was the very first piece of secondary legislation ever adopted by an EU institution – determining the Union’s language regime and thereby signifying the fundamental importance of the matter – has been amended each time a new language needed to be added, i.e. most recently, in 2013.

Today this provision lists 24 languages, which also means that in principle EU institutions must operate in all these languages (though under Article 6 of the Regulation, they remain free to regulate the use of languages in their rules of procedure in specific cases), that citizens must be given the opportunity to communicate with EU institutions in all these languages, and that EU legislation must be published in all these languages. Those who consider this endeavor to be symbolic rather than being of practical relevance may wonder how much it costs to maintain the EU’s multilingual public administration. In 2023, this figure was  EUR 349 million, which might seem like a considerable amount, however, it actually makes up only 0.2% of the EU’s total budget. Interestingly, regardless of the increasing number of official languages and the ever-intensifying legislative activity of the EU, the number of staff employed for instance by the European Commission’s translation unit has been decreasing over the years, in part due to the availability of more and more efficient machine translation tools. Translation tools were introduced after the 2004 enlargement, as the Commission’s  old translation system was not suitable for dealing with all the official languages of the newly acceding

countries. New technologies may also help overcome the challenges of having to resort to relay languages. The use of relay languages increased markedly upon the accession of new Member States, as it was impossible to find qualified translators for all combinations of the 24 languages.

Linguistic diversity within the Member States is a different matter altogether, rendering language questions more sensitive in some Member States than in others. Nevertheless, languages have always played an important role in the course of European integration itself. Language questions determined the fate of many legislative instruments adopted at the EU level. For instance, the creation of European intellectual property rights provided for by Article 118 TFEU took decades to materialise, predominantly because of disagreements between Member States as to the applicable language regime. The finally adopted  Translation Regulation now provides that applicants who file patent applications at the European Patent Office in one of the official languages of the Union which is not an official language of the EPO (i.e. English, German or French) are entitled to reimbursement of all translation costs up to a ceiling. This was a crucial point for Member States that wanted EPO’s language regime to be fairer and that hence blocked the legislative process for a long time.

Outside the realm of EU public administration, however, the use of one particular language, English is often preferred – or even promoted by EU institutions, with the view of overcoming language barriers between people and businesses interacting within the EU’s internal market. The European Parliament in its 2021 resolution on the future of free movement of services called for the use of English in communication between national authorities (e.g. under the Professional Qualifications Directive) and by single contact points disseminating information to citizens (e.g. under the Single Digital Gateway). Similarly, on occasion applicants for  funding of cross-border cooperation projects have been encouraged to submit their application packages in English, even when multilingualism played an important role in the project to be funded.

Regardless of the Union’s efforts of protecting and promoting linguistic diversity in particular in the public domain, there is still room for improvement. As the most recent standard Eurobarometer survey confirms, only 9% of Europeans regard languages as creating most ‘a feeling of community among EU citizens’. Shall this be interpreted as linguistic diversity dividing people rather than bringing them closer together? While this could be a critical interpretation, one should consider that at the same time 24% of respondents see culture as creating most a feeling of community – and arguably, languages are part of Europe’s intangible cultural heritage. Luckily, though, while Europeans might not regard languages as an important factor in bringing people together, multilingualism as such is valued very highly, as confirmed by the second ever Eurobarometer survey on ‘Europeans and their languages’ published in May 2024. Namely, 86% of respondents thought that everyone in the EU should be able to speak at least one language in addition to their mother tongue, 76% considered that improving language skills should be a policy priority and 84% agreed that regional and minority languages should be protected.

Whether citizens’ enthusiasm for multilingualism will be upheld with future rounds of enlargement is yet to be seen. With no less than nine countries being candidates for accession at the time of writing, how will the EU accommodate an everincreasing number of official EU languages and their speakers in the future? As certain outdated institutional settings have long been inadequate for a Union of 27 (see for instance Bruno de Witte’s op-ed in this symposium on, among others, the unanimity rule in the Council), perhaps the time will soon be ripe for a decision to officially limit the number of languages used in and by EU institutions. Seeing some Member States’ vehemence when it comes to language questions however, this will not be easily accomplished.

The 20th Anniversary of the ‘great’ EU Enlargement reform

Anna Krisztian is a researcher at the Europa Institute of Leiden Law School. Anna wrote her Ph.D. at the European University Institute on the legal regulation of linguistic diversity in the European Union.

SUGGESTED CITATION: Krisztian, A.; “Linguistic Diversity in an Enlarging European Union”, EU Law Live, 18/06/2024, https://eulawlive.com/op-ed-linguistic-diversity-in-an-enlarging-european-union/

The 20th Anniversary of the ‘great’ EU Enlargement

Toward a post-normative nontransformative Enlargement of the Union?

Nedim Hogic

Introduction

Russian aggression against Ukraine returned the enlargement process to the center of attention of policymakers and political commentators. Opening the negotiations and granting candidacy status for Ukraine, Moldova, Georgia, and Bosnia and Herzegovina that occurred in the last year made many forget that this process has demonstrated little but failures in the last decade. We may observe this most aptly in foreign and security policy. ‘The Western Balkans became a laboratory to implement the EU’s foreign and security policy,’ stated former Enlargement Commissionaire Ollie Rehn 18 years ago. But that laboratory became a competing arena for all interests where the European influence was just one of the many and where European values – despite their overuse in the discourse surrounding the enlargement – failed to bring about the much-needed transformation of the region. In this Op-Ed, I look at some of the lessons learned from the failed enlargement of the Western Balkans. I map how seeking solutions that bypass the current problems risks making enlargement post-normative and nontransformative. I conclude by examining how the recent initiatives from the European Commission address the problem.

The Pre-Enlargement Failures in Rule of Law and Economic Development

The lengthy enlargement saga of the Western Balkans (WB), which commenced with the EU’s 2003 commitment towards expansion to the region, is a story that warns us to what extent the current enlargement model across the vast policy area covered by the so-called enlargement package is broken. Its only success, anchoring the WB economies in the European sphere of influence, did not bring much prosperity to the region. The region stands at roughly 40% of GDP per capita compared to 62%, the lowest value amongst the EU Member States achieved in Bulgaria, which joined the Union in 2007. A precarious economic development model with a full opening to investments, goods import, and limited working mobility supported authoritarian tendencies. That was because the full opening of the WB countries economies to the EU was not followed by access to structural and cohesion funds. That left a gaping hole of need for infrastructural and other development. Without access to structural and cohesion funds and yet exposed to the import of more competitive European goods and services, the region turned to investments from other, most notably Russian and Chinese sources. The asymmetric nature of the economic relationship between the Union and the WB countries was made worse by the brain drain, especially the  brain drain of healthcare workers, which has left the WB countries with severe shortages and problems in healthcare provision.

The rule of law fared worse. The constitutions and laws of the WB countries changed in the last decade due to the rule of law-related demands from the EU feature all formal preconditions for judicial independence. However, decoupled from economic development and viewed narrowly as primarily related to judicial independence, this formal compliance with the criteria and demands from the EU monitoring missions and experts failed to safeguard democracy. The EU observations neglected political preconditions for judicial independence and directed much of  its spending in vain

The

As  Stephenson observed, the main preconditions for judicial independence are regular shifts in power. Regular shifts in power are also a precondition for a democratic society, which backslide under the enlargement policies pursued by the domestic and European actors. Qualities such as separation from government influence, lack of arbitrary removal, appointment without political interference, and competitive salaries are all important for a functional judiciary. Still, as we have seen from the examples in the Union itself, their formal realisation doesn’t prevent State capture.

These shortcomings concerning economic development and the rule of law as the backbones of the transformative processes present in the previous enlargements risk making further enlargement nontransformative and post-normative. The geopolitical urgency that prompted the Commission to open negotiations with Ukraine amidst calls for the country to be admitted under a  fast-track procedure or,  even without it, did not end the concerns regarding the transformative power of the Union, in particular about the rule of law conditionality. Theoretically, the EU could ignore the rule of law conditionality in the WB States and admit them into the Union. But that could mean an obligation to do the same in the case of Ukraine, whose sheer size of economy and population goes well beyond that of the WB States, making such a course of action unlikely.  Finally, the continuing relevance of the rule of law as one of the focal points of  European external action and a core of the criteria for the enlargement makes its abandonment unrealistic. Seeking a way out of the trap in which no progress in the rule of law, limited progress in the economic development and political crisis, the re-imagination of the enlargement process around the idea of integration into the single market began taking place in the last five years.

Pros and Cons of the EEA

Proposed first by the European Stability Initiative in 2019, the idea that a single market access comparable to that created in 1992 by the EU and European Free Trade Agreement countries, the  European Economic Area (EEA), should be offered instead of enlargement has gradually acquired a certain degree of attractiveness.

The EEA-style arrangement’s main advantage to the EU and its Member States is political. Enlargement policies are unpopular in Europe as they are blamed for rising populist sentiments. The absence of a deal on the EU’s reform makes enlargement—at least under the Franco-German plan—impossible. Legally, under Art. 128 of the EEA Agreement, accession to the EEA  might take the EFTA route, thus escaping the troublesome path to membership. The broad scope of EEA-relevant legislation (for example, the entire package regarding the digital economy) would undoubtedly help create positive changes limited to economic development and wider societal transformation. For some countries, such as Sweden, the experience of the EEA has contributed to a smooth transition to the Union, so the proposal is not without value for the WB States.

However, not all qualities of the eventual application of an EEA-like deal with the candidate countries are acceptable to the EU. An EEA-style arrangement would enable the countries to influence EU-wide policies, thus representing a significant departure from the existing economic and legal arrangement through the Stabilization and Association Agreements (SAA) or, in the case of Ukraine Deep and Comprehensive Free Trade Agreement (DCFTA) between the candidate countries and the EU. The SAAs  are trade deals, but deals projected to integrate the countries into a single market and serve as preparation for full membership. The EEA does not operate under such dynamics – it was conceived as a deal to create a unified economic space between then-EFTA countries and the then-European Economic Community. Today, the EEA has 31 member countries and represents a distinct legal order made to reproduce the effects of another legal order, the EU legal order. On an institutional level, unlike the candidate countries, the EEA Member States may participate in formulating new laws and policies. They can do so by  agenda setting, influencing laws and policies to be adopted, and participating in EU expert groups And for that, the States, most importantly, Norway pays. That is something that

the Balkan States that hope to become a net recipient of at least some part of the structural and cohesion funds don’t do and wouldn’t be allowed to do as the EU clearly does not want any symmetric relationship with them. While the six Western Balkan countries may not have the economic leverage to control any segment of the EU’s economy, the same cannot be said of Ukraine and its potential in agricultural production. Although the EEA excludes agricultural policies (and fisheries) from its scope of regulation, some EU Member States fear that Ukraine could demand a special status or nothing short of full membership. From a legal standpoint, the jurisprudence of the EFTA Court testifies to a dynamics of judicial dialogue that has enriched the whole European legal development. The European policymakers do not expect such a contribution from a legal space that the EU broadly considers severely deficient regarding the quality of its law. The SAAs and the DC FTA were made, as Kuleba observed, so the countries swallow as much acquis as possible without meaningful involvement in policy shaping. That also unmasks the main fear of Ukraine and the Balkan countries: substituting enlargement for EEA membership would keep them outside of the Union forever.

Finally, part of the problem is the institutional setup and fragmentation of the EU’s policymaking. The EEA remains a niche topic even in Brussels. It remains to be seen as a trade deal, not a tool for transforming countries. Tellingly, the EEA is handled by the DG Grow, primarily in charge of internal markets, while the enlargement is dealt with under the DG Near, which handles relations with candidate states. While collaboration between the two is much needed to improve the current state of the enlargement process, different expertise frameworks limit joint engagement. All these reasons make a reproduction of the EEA face too many obstacles and too many what-ifs to be considered a politically viable alternative to the enlargement. Instead, the gradual integration – upon much insistence from France – is to follow a staged accession model.

Staged Accession and Benchmarking

The staged accession model attempts to address all the fears of those who feel that benchmarking and an accurate measure of progress is the key to resolving many of the previously mentioned problems.  The model, developed by a Serbian think tank with support from European transnational civil society, tries to take benchmarking, the practice of measuring progress in meeting certain policy objectives, seriously. Thus, every step in meeting specific benchmarks is rewarded with access to more funds. This is useful for monitoring purposes, making the entire process more transparent and less prone to  biased observations, and also highlights the oft-forgotten transactional nature of the membership. However, the number of steps it introduces would make the enlargement process resemble early computer games in which endless stages or levels are completed only for a failure at one stage, leading to the loss of all progress achieved in a certain area. Specifically, this is true for the usage of funds that can – under this conception – be frozen for many different reasons. Therefore, it isn’t easy to follow the lens through which the authors view the candidate States and the EU. With progress in different clusters (policy areas of the acquis lumped together) divided in different percentages that automatically trigger acquirement and the loss of funding, the only tangible benefit of the model is that it would give a coherent roadmap that, despite severe problems in its practicality, could be followed.

The Future is Unwritten

What is to be expected, then? The EU seems poised to pursue an experimentalist path toward integrating the candidate countries into the single market without a clear idea of transforming them into prosperous EU Member States. Examples of such integration activities are in the Priority Action Plan under the DCFTA with Ukraine and the Growth Plan for the Western Balkans. These two initiatives, explicitly mentioned in the most recent policy document regarding enlargement that the Commission has issued, the Communication on pre-enlargement reforms and policy reviews, aim

The 20th Anniversary of the ‘great’ EU Enlargement reform

towards single market integration, offering insufficient funds for financing policy goals and infrastructure projects. The rule of law is touted as the highest value of the process. Still, there is remarkably little space dedicated to it compared to the earlier restatements of the enlargement policy. The charted way forward sets aside the insistence on the rule of law reforms as the only critical part of the Fundamental First approach under which the Commission claims to operate. As a novelty, the European Rule of Law Reports, like those used for the EU Member States, will replace the often confusing and sloppy country reports.

Instead, the transformative power is expected from the gradual integration into the single market. But, the full scope of such integration remains undefined. The Commission’s document highlights policy areas, such as the Single European Payment Area, and policy processes, such as the digitalisation and green transition. That is good as a continuing insistence on the rule of law reforms without consideration of the socio-economic structure underpinning it could be counterproductive, raising expectations that cannot be met. Lacking the power of the sword or the power of the purse, the judiciary alone cannot lift the countries out of poverty or eliminate State capture. Instead, endless proposals for the rule of law reforms should be replaced by understanding what you expect the legal system and judiciary branches of government to accomplish.

None of this, however, guarantees that enlargement will happen. Any member state may veto the decision to invite a country to join the Union and many aspects of the enlargement process. The implementation of the  Franco-German planto reform the Union would change this. But, with the uncertainty surrounding the institutional reforms proposed by the plan any enlargement remains unlikely, risking, therefore, that all policy actions that we describe to remain useless.

Nedim Hogic is Postdoctoral Research Fellow University of Oslo.

SUGGESTED CITATION: Hogic, N.; “Toward a post-normative nontransformative enlargement of the Union?”, EU Law Live, 19/06/2024, https://eulawlive.com/op-ed-toward-a-post-normative-nontransformative-enlargement-of-the-union/

The

Leaps in Time through the EU’s common foreign and security Policy post-Enlargement

Graham Butler

The 20th Anniversary of the ‘Great’ EU Enlargement: the Common Foreign and Security Policy

This contribution to the symposium aims to analyse the transformation of the European Union’s (EU) Common Foreign and Security Policy (CFSP) over the past two decades, following the 2004 enlargement of the EU which saw the ten Central, Eastern, and Southern European States acceding to the Union as Member States. Furthermore, this Op-ed seeks to explore potential future direction for the CFSP as a policy domain.

The analysis is divided into three distinct sections. The first provides an examination of the current developments in the CFSP, with a particular focus on the ongoing war in Ukraine. This aims to provide an overview of the present state of affairs within the policy area. The second takes a retrospective look at the CFSP during the time of the ‘great’ EU enlargement twenty years ago. This period was characterised by a distinctly different geopolitical landscape, with particular emphasis on the Middle East and the continued repercussions from the wars in Afghanistan and Iraq in which a number of EU Member States were involved. The third projects forward to the year 2044, twenty years from the present day, to speculate on the potential future of the CFSP. This projection is based on the developments observed in the policy area to date. The aim is to provide insights into what the CFSP might look like in the coming decades, with nothing at all being certain.

Present: The CFSP in 2024

The present year, 2024, marks a significant period for the EU’s CFSP, as it is currently experiencing a surge in relevance and application. Some, such as the present author, toiled in this field when there was much less focus on it (see, Butler, 2019). This surge is primarily due to the aftermath of the 2022 Russian invasion of Ukraine. The CFSP, which was previously moderately utilised and researched by few, has seen a substantial increase in the number of legal instruments, leading to a broader understanding of the policy. Consequently, law firms have begun to establish specialised practices in this area, and the uptick in interest in the CFSP from both scholars and practitioners is extremely welcome.

The CFSP’s prominence in the current era – taking the Russian invasion of Ukraine in 2022 as the case study – is most notable in two distinct matters undertaken by the EU, both reactive and proactive.

Reactively, the EU promptly imposed  autonomous restrictive measures (sanctions) on individuals committing acts contrary to international peace and security. In other words, problems in the European neighbourhood called for a unilateral European response, without resort to or explicit reliance upon other international partners. This autonomous action has led to hundreds of individuals being subjected to coercive measures intended to deter them from engaging in wrongful conduct. Whilst controversial for its widening scope, the EU’s sanctioning regime through the CFSP has been targeted on named entities, and whilst in force, imposes obligations on both States and private individuals through the EU to maintain the effectiveness of the adopted sanctions until the sanctions are removed.

The

20th Anniversary of the ‘great’ EU Enlargement reform

Proactively, the EU has taken the initiative to directly support Ukraine through the CFSP at a time when Ukraine has needed all the external support that it could muster. Among the measures taken within the CFSP include the provision of armaments such as artillery, missiles, and other related ammunition through the ‘European Peace Facility (EPF)’. The EPF, embedded within the CFSP, is an off-balance sheet instrument funded by the Member States, and used to finance the EU’s defense and military activities. This initiative marks a first for the EU: arming a third State to defend itself during wartime. Alongside this measure, the EU has launched a new Common Security and Defense Policy (CSDP) mission, the EU Military Assistance Mission in support of Ukraine (EUMAM Ukraine). This mission aims to support and train Ukraine’s armed forces (in EU Member States) to ensure they have the necessary capacity to resist territorial incursions by a neighbouring aggressor. Thus far, tens-of-thousands of enlisted members of the Ukrainian armed forces have received training under the EU banner.

In essence, the present has seen Ukraine inadvertently become the catalyst for the EU to utilise its potential power under the CFSP more frequently, and ambitiously.

Past: The CFSP in 2004

Looking back to 2004, the year of the ‘great’ EU enlargement, the landscape was markedly different. The year commenced with only fifteen Member States, three of which declared neutrality (Austria, Ireland, Sweden), and a fourth (Denmark) having a treaty-based opt-out in EU measures within the CFSP that had ‘defence implications’. Moreover, the United Kingdom was still a Member State of the EU. Europe was anticipating a decade of peace and prosperity at home (though American-led wars were still active in the Middle East), a stark contrast to the regrettable turmoil of the 1990s in the Balkans. The integration of most (though not all) of the new Member States into the CFSP was strategically planned to ensure that their past affiliations with an Eastern bloc were firmly relegated to history.

The accession of each new Member State to the EU did not pose any significant challenges, as the continuation of unanimous decision-making within the Council, a non-legislative field of EU external action, allowed each existing and new Member State to exercise a ‘veto’ over any CFSP action they disagreed with. The EU Treaties also permitted Member States to abstain in certain Council decision-making, allowing them to neither veto the adoption of a specific EU legal act, and nor be obliged to apply the decision that was abstained upon. However, such abstention required the Member State to accept that the decision adopted without them commited the EU, and prohibited the abstaining Member State from acting contrary to that position.

The first Member State to formally exercise the right of abstention was Cyprus, one of the Member States from the ‘great’ EU enlargement. In 2008, Cyprus refused to participate in the CFSP Decision to establish Eulex Kosovo, a Common Security and Defence Policy (CSDP) mission, in a third State whose recognition has not been uniformly agreed upon by Member States. This precedent paved the way for other Member States, such as Austria, Ireland, and Malta, to exercise their right of abstention in CFSP decision-making in 2022, objecting to a Council Decision on the provision of weapons to Ukraine that could be used for ‘lethal force’, due to national political considerations.

Furthermore, twenty years ago, the EU had not yet developed its own autonomous sanctions regime. Instead, at the time, the EU amended secondary law, partially through the EU, to implement UN sanctions in the EU legal order, effectively transposing public international law. In essence, the EU would adopt the list of individuals to be sanctioned by the Sanctions Committee under the authority of the United Nations Security Council, and incorporate it into EU law under the applicable procedures. In-and-around 2004, the ‘Kadi’ saga began to emerge, marking a notable disagreement between the General Court and the Court of Justice on how international sanctions should be incorporated into the EU legal order. The autonomous sanction regime of the EU has relegated some of the relevance of this conundurum.

Future: the CFSP in 2044

The future of the CFSP is undoubtedly leaning towards its eventual integration into the broader EU legal order. In other words, the CFSP is anticipated, one day, to cease being a separate domain and instead become an integral part of the overall EU external action. While the EU has not been a (formal) pillarised legal order for some time, the CFSP in real terms still acts as a de facto hidden pillar, which is a critical aspect often overlooked in non-legal analyses of EU foreign, security, and defence policy.

This distinction between CFSP and non-CFSP action by the EU is not always readily apparent, but the intricacies of the CFSP are highly relevant for the legality of EU external action. Indeed one of the leading disputes in this area concerns the very preliminary matter of the jurisdiction of the Court of Justice of the European Union (CJEU) over the CFSP. This basic problem demonstrates that the full normalisation of the CFSP as a policy subject to ‘specific rules and procedures’ (Article 24(1) TEU) is still some distance away, despite the CJEU’s consistent (and commendable) efforts in the post-Treaty of Lisbon era to erode, within reason, some of the absurd constitutional characteristic of the CFSP as foreseen in the EU Treaties, and consider it as part of the broader external relations  acquis, while retaining its separateness only where absolutely necessary.

Treaty reform that would enable full judicial oversight and review of the CFSP and its actions by the CJEU would be at the top of the wish-list for CFSP reform, and most certainly will be gone by 2044. However, more realistic reforms that can be implemented without resorting to treaty amendment would first involve opening up the CFSP in terms of its decision-making within the Council. The EU Treaties already provide for a specific CFSP ‘passerelle clause’ to transition nearly all decision-making in the EU from unanimity to qualified majority in the Council. This development should be one of the easiest decisions to make, mirroring what was provided for in the legislative realm back in the 1980s by the Single European Act. Unfortunately, any changes to the CFSP to make decision-making more pluralistic with the formal involvement of the Commission and the Parliament encounter the same problem as the lack of ‘full’ jurisdiction of the CJEU over the CFSP: the current text of the EU Treaties, which would need to be amended.

Returning to the present, the Russian invasion of Ukraine has already resulted in at least one EU Member State, Denmark, unilaterally changing its stance regarding its relationship to the EU’s Common Security and Defence Policy (CSDP). In the aftermath of the invasion in 2022, Denmark chose to renounce its opt-out from CSDP matters that had ‘defence implications’, and is now a full Member State for all foreign, security, and defence matters, having forgone this part of a protocol to the EU Treaties. However, this is just one technicality for one EU Member State without major EU significance.

The real test for the EU will be to see whether the CFSP can continue to evolve as a matter of deliberate necessity and proactivity, or whether it will be one of responsiveness in the face of crises. If the only significant progress between 2024 and 2044 within the development of the CFSP is a move to full jurisdiction of the CJEU over the CFSP, and a shift from unanimity to qualified-majority decision-making within the Council, then that would certainly be a disappointment. Numerous innovative ideas for what to do about the CFSP will emerge in the meantime, and it will be a matter of political will to see if any of them will be acted upon.

Graham Butler is Full Professor of Law at the University of Southern Denmark.

SUGGESTED CITATION: Butler, G.; “Leaps in Time through the EU’s Common Foreign and Security Policy Post-Enlargement”, EU Law Live, 20/06/2024, https://eulawlive.com/op-ed-leaps-in-time-through-the-eus-common-foreign-and-security-policy-post-enlargement/

The 20th Anniversary of the ‘great’ EU Enlargement

EU enlargement: Wider AND deeper?

Daniel R. Kelemen

A year ago, EU enlargement remained in the deep freeze to which Commission President Jean Claude Juncker had consigned it back in 2014. The chances that candidate States in the Western Balkans might join the Union anytime soon seemed slim. The notion that Ukraine and Moldova might soon be accepted as candidates for membership was pure fantasy.  But after February 2022, Russia’s bloody invasion of Ukraine transformed the EU enlargement debate. By May 2024, as the EU celebrated the 20th anniversary of the 2004 Big Bang enlargement, the EU had opened accession negotiations with Ukraine and Moldova and granted Georgia (conditional) candidate country status, and the prospect that some Western Balkan States might accede to the Union in the coming decade had become eminently plausible. The 20th anniversary of the 2004 enlargement and the EU’s commitment to a new vision for a wider Union spanning from Ireland and Portugal in the West to Ukraine’s contested borderlands with Russia in the East marks a moment for both looking back and looking forward. When a new European Commission is installed next year, reform of EU enlargement policy will be high on its agenda. Looking back, we can ask whether the 2004 enlargement was a success? What mistakes were made? Did widening the Union undermine deepening as many suggested it would? Looking forward, we can ask what issues should the Commission  prioritise as it prepares for the next round of enlargement?  What can EU leaders learn from the recent history of enlargement, and how can they avoid repeating mistakes made in the past? Is there reason to believe that a new round of widening – potentially bringing the Union to as many as 35 or 36 Member States – will come at the expense of deepening? Or, to the contrary, could widening the EU actually encourage deepening of integration?

While the enlargement process certainly helped precipitate some serious economic and political problems in both new and old Member States, if we take the long view and consider the counterfactuals, we should conclude that on the whole the 2004 EU enlargement has been a resounding success.

We must not ignore the problems. Economically, the EU’s insistence on imposing a rigid neoliberal model on accession States exacerbated the  shocks they were experiencing with the transition to a market economy – contributing to deep recessions, soaring inequality, mass emigration, and social dislocations with great human costs. These shocks – and the migration and unemployment they involved – in turn had  political impacts, contributing to the decline of the left and the rise of the populist right. And given that one of the main promises of enlargement was to entrench democracy in the accession States, one can certainly not consider it an unalloyed success since the EU allowed two accession States –Hungary and Poland – to become the two most rapidly autocratising States in the world in the 2010s.

Though these economic and political problems had the greatest impact in the accession States, they also affected the Union as a whole. For instance, as the EU failed to respond adequately to the emergence of autocratic Member State regimes it became mired in what I’ve termed an  authoritarian equilibrium or  autocracy trap, and as a result found its  foreign policy threatened by these increasingly autocratic regimes and found the foundations of the EU legal order attacked by them.

But even recognising the seriousness of these problems, we must conclude that overall enlargement has been a major success. Most of the ten countries that joined the EU in 2004 have more than doubled their GDP per capita since accession – a rate of growth far higher than the EU average. The economic performance of countries that joined in 2004

The 20th Anniversary of the ‘great’ EU Enlargement reform

far exceeded that of those States on the EU’s periphery – like Moldova and Ukraine – who were denied the opportunity to accede. And politically, while we have learned that EU membership is no guarantee against democratic backsliding, EU membership still places some limits on how far autocratic leaders will go in hardening their rule. Orbán has turned Hungary into an electoral autocracy, but he hasn’t turned it into a bloody dictatorship like Lukashenko’s Belarus just outside the EU’s domain.

And what of the relationship between widening and deepening? The prospect of a new round of enlargement has revived the old question of whether widening the EU will undermine deepening. To assess this looking forward, we should first look back. Quite simply, there is no reason to believe that the 2004 enlargement slowed down the deepening of integration. The past two decades have seen the EU deepen profoundly –largely in response to the series of crises it faced. The EU’s responses to each of the major crises it has faced in recent years– from the Eurozone crisis, to the refugee crisis, to the Covid-19 crisis, to the rule of law crisis, to the crisis of Russian aggression  –have led to significant strengthening of the EU’s authority in existing areas of competence or to the establishment of new competences. While it is possible that a smaller Union would have deepened even more in response to these crises, for the most part States that joined the Union in or after 2004 did not prevent deepening.

Why did the last round of widening not prevent deepening, and what does this mean for the likely impact of a future round of enlargement that could see the EU take in Western Balkan States, Moldova, and Ukraine?

As Anand Menon, Jonathan Slapin and I have  argued, the impact of widening on deepening depends very much on the position of the enlargement States relative to existing States – and whether or not the new members are preference outliers likely to block policy agreements. For much of the EU’s history, accession States were not preference outliers – as the biggest opposition to deepening came from existing Member States (usually the UK). Also, while widening may enhance the risk of gridlock and impede deepening in the short-term, it has also tended to strengthen the role of supranational actors and provided the impetus for institutional reforms that facilitated deepening in the long-term.

Should we expect similar dynamics to prevail in the new round of enlargement the EU is contemplating? As they say in the world of investment, past performance is no guarantee of future results. While widening did not impede deepening in the past, this is no guarantee that expanding the EU to embrace a number of fragile democracies to its east would not come at the expense of deepening this time around.

Why might this time be different? First of all, in the past institutional reforms taken in advance of enlargement – such as extension of qualified majority voting to new fields – ensured that enlargement would not lead to gridlock. However, today the EU is contemplating enlargement at a moment where it has failed to adequately address failures of the last round of enlargement – namely the failure to defend the EU against the emergence of autocratic Member State governments. For instance, two of key issues the EU must tackle to ensure widening does not block deepening in the future include removing national vetoes on EU security policy and putting in place safeguards to ensure that new Member States are credibly committed to democracy and the rule of law. But the EU can be sure that its current autocratic Member State (Hungary) and potentially some aspiring autocracies (such as the Fico government in Slovakia) would veto any such reforms. There is no more poignant reminder of this than the fact that a lackey of Hungary’s autocratic ruler Viktor Orbán has served as enlargement Commissioner for the past five years – entrusted with promoting rule of law and democracy in candidate States.  In short, EU enlargement policy has been poisoned by autocrats within, and as a result, it currently lacks credibility.

Another factor to consider is the broader fraying of the EU legal order. More and more national judiciaries are challenging core principles that have long underpinned the functioning of the EU legal order – such as the primacy of EU law. At the

The 20th Anniversary of the ‘great’ EU Enlargement reform

same time, the Commission has retreated from its traditional role as the guardian of the Treaties. As Tommaso Pavone and I have  demonstrated, since 2004 the Commission has dramatically relaxed enforcement of EU legal norms and reduced its use of infringement procedures across the broad range of areas of EU law.  Taking all this together, we must recognise that the EU legal order – which has served as the backbone of the integration project since its inception – is weakening. In this context, to admit a number of new Member States with weak rule of law traditions and significant histories of corruption would seem perilous.

Overriding geopolitical considerations justify the EU moving ahead with the enlargement process expeditiously despite the risks. But before it undertakes another round of widening, the EU must reinforce its legal order and its commitment to rigorous enforcement of EU law. If the EU fails to do so, then ironically the new Member States might finally succeed in joining the Union only to find it coming apart at the seams.

SUGGESTED CITATION: Daniel Kelemen, R.; “EU enlargement: Wider AND deeper?”, EU Law Live, 20/06/2024,  https://eulawlive. com/op-ed-eu-enlargement-wider-and-deeper/

R. Daniel Kelemen is McCourt Chair at Georgetown University, McCourt School of Public Policy

The 20th Anniversary of the ‘great’ EU Enlargement