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/