Introduction to European Union law
Introduction to European Union law

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Introduction to European Union law

6.2 Conditions for membership

The conditions for a candidate country to become a member state are that it must comply with the entire body of EU law (the acquis communautaire) – that is, all the Treaties, Regulations and Directives adopted by the EU institutions as well as judgments of the CJEU. But first, the candidate country must obtain the unanimous approval of the Council of the EU (after the Council has consulted the Commission and obtained the consent of the European Parliament) and the European Council (the member states), and prove to have the consent of its citizens – evidenced either by approval in the candidate’s national parliament or by national referendum.

The procedure is set out in Article 49 TEU. If accession is agreed, all existing member states and the candidate country have to ratify an accession treaty in accordance with their constitutional requirements. In the UK, Parliament had to amend the European Communities Act 1972 to include the Accession Treaty as an EU treaty, which has effect in UK law. However, accession Treaties do not trigger a referendum under the European Union Act 2011.

Article 49 TEU also sets out the membership criteria. It states that:

Any European state which respects the values of the EU referred to in Article 2 [e.g. human dignity, freedom, democracy, equality, the rule of law and respect for human rights (including those of minorities)] and is committed to promoting them may apply to become a member of the Union.

Candidate countries must also meet the ‘Copenhagen criteria’, which were agreed at the European Council held in June 1993 in Copenhagen, Denmark.

The Copenhagen criteria

The Copenhagen criteria are that a candidate country must have:

  • Stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. These are mainly political criteria and reflect Article 49 TEU. They should have regular free and fair elections, the right to establish political parties without interference, an independent judiciary, a free press and trade unions.
  • A functioning market economy that can cope with competition and market forces in the EU. These are economic criteria. Former Communist countries had to restructure their economies significantly to reduce the role of the state in the economy and to ensure that domestic businesses could withstand the rigours of a competitive market economy.
  • The ability to meet the obligations of membership, including respect for the aims of political, economic and monetary union.

The negotiations to join the EU are very detailed and can be prolonged. They are not about whether to implement the acquis, but when, and how, to implement it. The EU will provide technical and financial support to enable candidate countries to meet the Copenhagen criteria; the Commission monitors progress. The negotiations cover the areas prescribed in Article 49 TEU:

Areas prescribed in Article 49 TEU

  • The conditions and timing of the candidate’s adoption, implementation and enforcement of the acquis are negotiated.
  • Acquis is divided into 35 different policy fields (chapters) – for example, transport, energy, environment, agriculture and fishing – each is negotiated separately.
  • Financial arrangements are discussed (e.g. how much the new member state is likely to pay into and receive from the EU budget).
  • Transitional arrangements are negotiated – on occasion certain parts of the acquis are phased in gradually to give the new member state or existing member states time to adapt. For example, there are usually transitional arrangements in respect of free movement of persons. Bulgarians and Romanians only obtained full free movement rights on 1 January 2013, five years after the date of accession; Croatia is subject to a similar transitional period. An exception was the UK, as the Blair government chose not to be part of the transitional restriction on free movement of persons.

The CJEU in numerous cases has upheld the domestic laws of host member states that contain derogations from the principle of equal treatment of migrant workers. For example, in 2014, in Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others (Case C-67/14) 15 September 2015, relying on the principles of subsidiarity in the TEU and doctrine of implied powers in Article 5 TEU, the Court upheld German laws that restricted migrant citizens’ rights to special non-contributory cash benefits.

Monitoring and assessment

The Commission will provide a full assessment of the state of a candidate country’s compliance with the Copenhagen criteria in an Opinion drawn up in response to a country’s application for membership. The Commission then monitors the progress of candidate countries in meeting economic accession criteria annually in its progress reports on each candidate country.

This requires the administrative capacity to transpose the acquis into national law, to implement it and to enforce it through effective administrative and judicial structures.

What this all means is that only democracies are eligible to join. Greece, Portugal and Spain were effectively excluded from membership when they were ruled by dictatorships, but applied for membership once democratic rule had been restored.

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Figure 9 Path to accession

The following are candidate and potential candidate countries (bracketed dates are the year of application):

  • Albania – potential
  • Bosnia and Herzegovina – potential
  • Iceland – candidate (June 2010)
  • Kosovo – potential
  • Former Yugoslav Republic of Macedonia – candidate (December 2005)
  • Montenegro – candidate (December 2010)
  • Serbia – candidate (March 2012)
  • Turkey – candidate (December 1999).

Incorporation methods

The legal status of the Treaty of Lisbon in the domestic law of member states is that of an international Treaty. It follows that incorporation into national law is determined by the mechanism for incorporation residing in each member state. For monist states the Treaties automatically become part of domestic law without further legislative process. For dualist states, such as the UK, the Treaties must be given domestic legitimacy to have effect. In the UK this was achieved through the European Communities Act 1972 (ECA). Section 2 states:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.

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