Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity

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Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity

in Austrian Review of International and European Law Online


1 Declaration on "One Europe", adopted in Copenhagen, 13 December 2002, SN 369/02. 2 "Towards the Enlarged Union", Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries, Brussels, 9.10.2002, COM (2002) 700 final, 33. The accession treaties were approved by the European Parliament on 9 April 2003 and signed in Athens on 16 April 2003. 3 Presidency Conclusions, Copenhagen European Council 12 and 13 December 2002, SN 400/02, para. 3. The Commission judged that while Bulgaria and Romania met the political criteria, they did not "fully meet, to various extents, the economic and the acquis criteria" while Turkey did not fully meet any of the criteria. "Towards the Enlarged Union", supra note 2, at 21. The Copenhagen European Council (2002) confirmed the Union objective "to

welcome Bulgaria and Romania as members of the European Union in 2007". As for Turkey, the Commission will prepare a report on its progress for the European Council meeting in December 2004, which the European Council will use as a basis for deciding whether Turkey fulfils the accession criteria. If it answers in the positive, the EU "will open accession negotiations with Turkey without delay" (paras. 14 and 19 of the Presidency Conclusions). Turkey has formally been a Candidate State since the Helsinki European Council. See the Presidency Conclusions of the Helsinki European Council, 10 and 11 December 1999, para. 12. 4 Denmark, Ireland and the UK (1973); Greece (1981); Portugal and Spain (1986); Austria, Finland and Sweden (1995). The 1995 enlargement, which took place after the 1993 Copenhagen summit, to three former EEA states Austria, Finland and Sweden was realised through a rather simple accession process, mainly due to the relative and the relatively balanced prosperity of these states and the fact that they had been participating fully in the single market through the EEA Agreement already before EU membership. See D. Booss/J. Forman, "Enlargement: Legal and Procedural Aspects", 32 Common Market Law Review 95, at 129 ( 1995). 5 On this, see W. Graf Vitzthum, "Die Identitat Europas", 27 Europarecht 1 (2002). On the limits of 'Europe', see adso V. Fritz, "New Divisions in Europe? East-Eastern Divergence and the Case of Ukraine", EUI Working Papers RSC No. 2000/63. 6 K. Inglis, "The Europe Agreements Compared in Light of Their Pre-Accession Reorientation", 37 Common Market Law Review 1173, at 1176 (2000). 7 K. E. Smith, The Making of EU Foreign Policy - The Case of Eastern Europe 108 ( 1999).

8 Hungary and Poland (applied in March and April 1994) were followed in 1995 by several States: Romania, Slovakia, Latvia and Estonia (June, October and November 1995), Lithuania and Bulgaria (December 1995), the Czech Republic and Slovenia (January and June 1996). The current EU applicants also include Turkey, Cyprus and Malta, which applied in April 1987, July 1990 and July 1990 (but withdrawn, restored in 1998) respectively. An application by Morocco (1987) was rejected on the grounds of its non-European status. 9 See Copenhagen European Council, Presidency Conclusions, Bull. EC No. 6/1993, at 7, also available at http://europarl.eu.int/enlargement/ec/cop en.htm.

'° See the Conclusions of the Presidency at the European Council in Lisbon, 26 and 27 June 1992, Section on Enlargement, para. A.

11 M. Cremona, "Accession to the European Union: Membership Conditionality and Accession Criteria", in W. Czaplinski (ed.), Podand's Way to the European Union: Legal Aspects, Polish Yearbook of International Law (forthcoming 2002). 12 "Europe and the challenge of enlargement", Bull. EC, Supplement 3/92, Section on "The new context", at 9-10. 13 See C. Hillion, "Enlargement of the European Union: A Legal Analysis", in A. Arnull/ D. Wincott (eds.), Accountability and Legitimacy in the European Union 401, 403 (2000). 14 "Europe and the challenge of enlargement", Bull. EC, Supplement 3/92, Section on "Conditions for new members", at 11.

'S A. Williams, "Enlargement of the Union and human rights conditionality: a policy of distinction?", 25 European Law Review 601, at 604 (2000). 16 The value aspect is also included in the Association agreements with the CEECs, which recognise the "common values that [the Community, its Member States and the Applicant State] share". See, e.g., the preamble to the Europe Agreement with the Czech Republic, published in OJ L 360, 31 December 1994, 0002-0210. " See, e.g., J. Zielonka, "Policies without Strategy: the EU's Record in Eastern Europe", in J. Zielonka (ed.), Paradoxes of European Foreign Policy 131, at 135 (1998). '8 H. Sjursen, "Why Expand? The Question of Legitimacy and Justification in the EU's Enlargement Policy", 40 Journal of Common Market Studies 491, at 505-506 (2002). This has also applied to the Baltic States, which, after all, were part of the Soviet Union. On the Baltic States, see P. Van Elsuwege, "The Baltic States on the Road to EU Accession: Opportunities and Challenges", 7 European Foreign Affairs Review 171 (2002). For Van Elsuwege it is, in fact, difficult to see why the Baltic States were classified as Central and Eastern European countries on the road to EU accession and not as former Soviet republics, for which the EU offered far less elaborated links. For Muller-Graff, there appeared to be a dividing line among the former Soviet Republics, which "seems to evolve as a result of the interests of the individual East European States on one side, and the Union's own perception of its basic political character, in terms of values, current situation and capacities, on the other". See P.-C Miiller-Graff, "The Legal Framework for the Enlargement of the Internal Market to Central and Eastern Europe", 6 Maastricht Journal of European and Comparative Law 2192, at 194 (1999).

19 See H. Sjursen/K. E. Smith, "Justifying EU Foreign Policy: The Logics Underpinning EU Enlargement", ARENA Working Paper no 1, 25 (January 2001). ). 20 Sjursen, supra note 18, at 503-504. 21 "Editorial Comments", 38 Common Market Law Review 1335 (2001). ). 22 see P. Leino, "A European Approach to Human Rights? Universality Explored", 4 Nordic Journal of International Law 455 (2002). 23 Art. 7 TEU empowers the Council to "determine the existence of a serious and persistent breach by a Member State of principles mentioned in Art. 6(1)". Following this decision, certain of the membership rights of a Member State may be suspended including its voting rights in the Council. Art. 6(1) TEU, in its turn, identifies the principles upon which the EU is founded. These include "the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States". za On this, see, e.g., M. Hofstotter, "Suspension of Rights by International Organisations: The European Union, the European Communities and other International Organisations", in V. Kronenberger (ed.), The EU and the International Legal Order: Discord or Harnzony?,

47-52 (2001); M. Merlingen/C. Mudde/U. Sedelmeier, "The Right and the Righteous? European Norms, Domestic Politics and the Sanctions Against Austria", 39 Journal of Common Market Studies 59 (2001); M. Happold, "Fourteen against One: The EU Member States' Response to Freedom Party Participation in the Austrian Government", 49 International and Comparative Law Quarterly 953 (2000). 25 Report by M. Ahtisaari/J. A. Frowein/M. Oreja, adopted in Paris on 8 September 2000. The report can be found at http://www.mpiv-hd.mpg.de/de/Bericht-EU/report.pdf, 3. According to the Report, Austria was in line with the common values requirements. The measures taken by the fourteen other Member States had, however, "hightened awareness of the importance of the common European values, not only in Austria, but also in other Member States". Ibid., at 33. Z6 See, e.g., J. H. H. Weiler, "Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights", in N. A. Neuwahl/A. Rosas (eds.), The European Union and Human Rights 51, at 51 (1995). for an early reference, see the "Declaration on European Identity", adopted by the Copenhagen European Council on 13-14 December, 1973; Bull. EC, 12-1973, at 118-122, which in addition refers to the common market, institutions, common policies and machinery as building blocks of "European identity'° For differing accounts see, e.g., K. Lenaerts/ M. Desomer, "Bricks for a Constitutional Treaty of the European Union: values, objectives and means", 27 European Law Review 377, at 379-380 (2002); J. Richardson, "The European Union in the World - A Community of Values", in 26 Fordham International Law Journal 12, esp. at 14 (2002). 28 See supra note 23. z9 See Draft of Arts. 1 to 16 of the Constitutional Treaty, Art. 2, according to which "[t]he Union is founded on the values of respect for human dignity, liberty, democracy, the rule of law and respect for human rights, values which are common to the Member States. Its aim is a society at peace, through the practice of tolerance, justice and solidarity". Brussels, 6 February 2003, CONV 528/03.

3o See, e.g., the Preamble to the Charter of Fundamental Rights of the European Union, adopted on 7 December 2000 as a political declaration, according to which "conscious of its spiritual and moral heritage, the Union is based on indivisible and universal values" 3' See P. Leino, "All Dressed Up and Nowhere to Go: The Debate on the EU Charter of Fundamental Rights", XI Finnish Yearbook of International Law 37, esp. at 77-81 (2000). 3= J. A. Frowein/S. Schulhofer/M. Shapiro: "The Protection of Fundamental Human Rights as a Vechile of Integration", in M. Cappelletti/M. Seccombe/J. H. H. Weiler (eds.), Integration Through Law. Europe and the American Federal Experience, Vol. 1 Methods, Tools and Institutions, Book 3, Forces and Potential for a European Identity, 23I ( 1986). 33 M. Cappelletti/M. Seccombe/J. H. H. Weiler, "Integration Through Law: Europe and the American Federal Experience. A General Introduction", in M. Cappelletti/M. Seccombe/ J. H. H. Weiler (eds.), Integration Through Law. Europe and the American Federal Experience, Vol. 1 Methods, Tools and Institutions, Book 1, A Political, Legal and Economic Overview, 4 (1986).

3a Ibid., at 25-26. But for the establishment of a "European identity", they identified five central areas of integration. These were the external posture of the polity, movement of persons and goods, transnational protection of human rights and the realms of education and culture. Ibid., at 44-45. 3s See the Presidency Conclusions, Tampere European Council 15 and 16 October 1999, "Towards a Union of Freedom, Security and Justice: The Tampere Milestones", para. 1. 36 On this point and the requirement of respect for the rule of law in general, see M. Cremona, "Regional Integration and the Rule of Law: Some Issues and Options", Paper presented at the Conference on Regional Integration and Trade in the Development Agenda organised by Integration and Regional Programs Department, Inter-American Development Bank, 18 (31 May-1 June 2001). 3' Cremona, supra note 11. See also Smith, supra note 7, at 164.

38 See Leino, supra note 31. 39 Case 11/70 Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle Getreide, 1970 ECR 1125, paras. 3-4. There are, however, limits to the influence of these traditions, as "the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs contrary to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure". Ibid. The Charter of Fundamental Rights adopted in 2000 does not amend the position of fundamental rights in the Union; see Leino, supra note 31. 40 case 3/73, Nold v. Commission, 1974 ECR 491, para. 13. 41 Ibid., at para. 14. Emphasis added. 42 Case 5/88, H. Wachauf v Germany, 1989 ECR 2609, para. 18. Emphasis added.

a3 Weiler, supra note 26, at 57. aa J. H. H. Weiler, "Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Rights within the Legal Order of the European Communities", 61 Washington Law Review 1103, at 1108 (1986). as See G. Burghardt/F. Cameron, "The Next Enlargement of the European Union", 2 European Foreign Affairs Review 7 (1997). Albi points out, however, that the Southern enlargement states were allowed considerable compromises, and the consolidation of democracy was expected to take place only after EU membership. See A. Albi, "Europe Agreements in the Light of Sovereignty and Legitimacy: The Case of Estonia", in A. E. Kellermann et al. (eds.), EU Enlargement: The Constitutional Impact at EU and National Level, 195, at 203 (2001). ). At that time, reference was explicitly made to two requirements: being a European State and a "form of constitution [...] of a pluralistic democracy whose structure guarantees representation of the various political opinions and also the procedures necessary for the protection of human rights". See the arguments of the Commission in Case 93/78 L. M. v Doego Fruchtimport und Tiefkuhlkost eG, 1978 ECR 2203, at 2207-2208. ab For this argument and a critique, see A. Williams, supra note 15, at 610. 47 see the European Parliament res. on the enlargement of the European Union, B5-0538/ 2001. a8 A. Diamantopoulou, European Commissioner responsible for employment and social affairs, 'The European Social Model and Enlargement', seminar speech, Istanbul 23 June 2000, SPEECH/00/235, 2.

49 The Progress Reports can be found on the Commission enlargement website, http://www. europa.eu.indcomm/enlargemenddocs/index.htm. so Except for the problems in Cyprus concerning the division of the island, which make it politically unstable. See also the Conclusions of the 2003 Copenhagen European Council, which confirm that "Cyprus will be admitted as a New Member State to the European Union", even if the "European Council confirms its strong preference for accession to the European Union by a united Cyprus". Presidency Conclusions, Copenhagen European Council, 12 and 13 December 2003, SN 400/02, para. 10. 5' These states include Estonia, Latvia, Hungary, Poland, the Czech Republic and Bulgaria. The situation in Lithuania seems to be somewhat better. Based on the Commission Reports, Slovenia seems to have a remarkably good human rights record. 5z These problems are not always mentioned in the first reports but are mentioned in 2000 and 2001 with respect to most CEECs. 53 Rittich makes the argument that on the whole; the transition in the CEECs has affected the position of women in adverse ways, undermining the desirability of the distributive effects of the program as a whole. See K. Rittich, Recharacterizing Restructuring. Law, Distribution and Gender in Market Reform, especially at 171-261 and 283-291 (2002). 54 In particular, Slovakia's treatment of minorities has in recent years been frequently remarked upon in European press due to the mass immigration of its Roma population to several EU member states. See Commission Progress Reports on Slovakia 1999, 2000. 55 see Res. on the need to respect human and democratic rights in the Slovak Republic, B4- 1366, 1381, 1379 and 1412/95; Res. on the protection of minority rights and human rights in Romania, B4-1025/95.

this provoked both the CSCE and the EC Council to take measures. Smith, supra note 7, 60-61; P. R. Baehr, "Human Rights: A Change in Performance", in R. J. Hill/J. Zielonka: Restructuring Eastern Europe - Towards a New European Order 185, at 190 (1990). 57 A. Liebich, "Ethnic Minorities and Long-Term Implications of EU Enlargement", EUI Working Papers, RSC No. 98/49, 6-7. According to Commission figures, 44% of the population belong to a minority in Latvia (where 34% are Russian), 38% in Estonia (30% Russian), 20% in Lithuania (9% Russian, 7% Polish), 18% in Slovakia (11% Hungarian, 5% Roma), 14% in Bulgaria (9% Turks, 5% Roma) and 13% in Romania (8% Hungarian, 4% Roma). See Agenda 2000, "For a Stronger and Wider Union", Document drawn up on the basis of COM(97) 2000 final, Bull. EU, Supplement 5/97, Vol. 1, Part Two "T'he Challenge of Enlargement", Sect. I Assessment on the basis of the accession criteria. 58 "Towards the Enlarged Union", supra note 2. s9 Ibid., at 13-14. 60 M. Nowak, "Human Rights `Conditionality' in Relation to, and Full Participation in, the EU", in P. Alston et al. (eds.), The EU and Human Rights 687, at 691 (1999). See also G. Pentassuglia, "The EU and the Protection of Minorities: The Case of Eastern Europe", 12 European Journal of International Law 3, at 11-12 (2001).

6` In Romania a direction to nationalistic and racist policies was taken in 1994 and 1995, but relations improved when new reformist government took office in November 1996. With Slovakia, the Community's bad relationship came to surface during the Merciar government, but when new reformist government came to power in 1998, the relationship improved. See K. E. Smith, "The Conditional Offer of Membership as an Instrument of EU Foreign Policy: Reshaping Europe in the EU's Image", 8 Marmara Journal of European Studies 33, 39-40 (2000). 62 Pentassuglia, "The EU and the Protection of Minorities: The Case of Eastern Europe', supra note 60, at 23. 63 Ibid. See also Monitoring the EUAccession Process: Minority Protection, report issued by the Open Society Institute, 2002. 64 Amnesty International, European Union Association: "European Union Enlargement to Central and Eastern European Countries: Human Rights Must Feature in the Accession Negotiations", RAC 09/97. 65 Agenda 2000, supra note 57, at 53 and 41. 66 Amnesty International, European Union Association: "European Union Enlargement to Central and Eastern European Countries: Human Rights Must Feature in the Accession Negotiations'', RAC 09/97, 2. 6' Ibid., at 3. Much remains even today to be wished, as Amnesty still reports, among other things, of ill-treatment or torture by police in Slovakia and Romania, attacks on Roma in

Slovakia, police failure to protect victims and to investigate incidents of racist violence in Poland, failure to investigate torture and ill-treatment and racially motivated violence in the Czech Republic. Amnesty International, "Concerns in Europe", January - June 2001. The reports can be found on the Amnesty International website http://www.amnesty.org. 68 See, e.g., R. J. Vincent, Human Rights and International Relations 61-75 (1986/1999). 69 On economic and social rights in the accession context, see T. King, "The European Community and Human Rights in Eastern Europe", Legal Issues of European Integration 93, esp. at 117-124 (1996/2). '° See Rittich, supra note 53, at 8. 71 King, supra note 69.

72 S. Marks, "Guarding the Gates with Two Faces: International Law and Political Recon- struction", Indiana Journal of Global Legal Studies 457, at 482-483 (Spring 1999). " Ibid., at 484. 74 Rittich, supra note 53, at 7 and 271. 'S For this point, see J. van Westerling, "Conditionality and EU Membership: The Cases of Turkey and Cyprus", 5 European Foreign Affairs Review 95, at 114-115 (2000).

'6 See, e.g., S. Peers, "An Ever Closer Waiting Room?: The Case for Eastern European Accession to the European Economic Area", 32 Common Market Law Review 187 (1995), at 188. " Muller-Graff, supra note 18, at 195. Turkey has had an Association Agreement in force with the EC since December 1964, Malta since April 1971 and Cyprus since June 1973. 78 Cappelletti/Seccombe/Weiler, supra note 33, at 42-43. '9 See Rittich, supra note 53, esp. at 3. 80 For this point and on the requirement of respect for the rule of law in general, see Cremona, supra note 36, at 13.

8' For a more detailed account of these 'first generation' agreements, see, e.g., D. Horovitz, "EC-Central/East European Relations: New Principles for a New Era", Common Market Law Review 259, esp. at 267-272 (1990). Turkey has had an Association Agreement in force with the EC since December 1964, Malta since April 1971 and Cyprus since June 1973. 82 The agreements entered into force between 1994 and 1999 and note in their preamble the "final objective" of the CEECs "to become a member of the Community", even if they were originally conceived as an alternative to full membership. The agreements recognise the wish to "establish close and lasting relations, based on reciprocity, which would allow [the Applicant State] to take part in the process of European integration'''. See, e.g., the preamble to the Europe Agreement with the Czech Republic, supra note 16. 83 The 'four freedoms' in the EAs are thus not meant to mirror the provisions of the EC Treaty but are based on the idea of allowing the associated states to take part in the process of European integration by means of their integration into the Community/LTnion. On this, see M. Cremona, "The New Associations: Substantive Issues of the Europe Agreements with the Central and East European States", in S. V. Konstadinidis (ed.), The Legal Regulation of the European Community's External Relations after the Completion of the Internal Market 142 (emphasis added) (1996). g4 Art. 69 of the Europe Agreement with the Czech Republic, supra note 16. 85 Rittich has observed that market reform projects are even more generally increasingly taking the form of common or general prescriptions while key decisions concerning reforms are taken by decision-makers sitting outside national borders who usually will not experience the effects of their recommendations. As a consequence, the role of law in the reforms is troubling, as it turns into the "antidote to politics" instead of being its outcome. As a substitute of being a social practice, law is the domain of experts and a means by which efficiency comes to dominate over other concerns, instead of being a reflection of different social interests and values. See Rittich, supra note 53, esp. at 5 and 290-291.

86 Cremona, supra note 83, at 154. 8' M. Cremona, "External Policy and the European Economic Constitution", in G. de Burca/ J. Scott (eds.), Constitutional Change in the EU. From Uniformity to Flexibility? 59, at 92 (2000). 88 Ibid., at 91. 89 See also M. Cremona, "Variable Geometry and Setting Membership Conditionalities: A Viable Strategy?", in C. Clapham et al. (eds.), Regional Integration in Southern Africa: Comparative International Perspectives 193, esp. at 212-214 (2000). For example, the Partnership and Co-operation Agreement with Russia envisages far-reaching obligations upon Russia to make its legislation in conformity with that in force in the Community even if hardly anyone sees Russia as a potential future member of the Union. See the Agreement on Partnership and Cooperation establishing a Partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part (Corfu, 24 June 1994), OJ L327 [1997],3, esp. Art. 55. 90 On this, see Cremona, supra note 87. 91 Art. 70, Europe Agreement with the Czech Republic, supra note 16. 92 See Cremona, supra note 11. 93 White Paper on Preparation of the Associated Countries of Central and Eastern Europe for Integration into the Internal Market of the Union, COM (95)163 final.

9^ The Phare funding program was originally created to assist Poland and Hungary in 1989, but it encompasses today all the 10 candidate CEES. Cyprus, Malta and Turkey benefit from separate pre-accession funding. 95 Burghardt/Cameron, supra note 45, at 19. 96 Ibid. 97 Ibid., at 21. 98 Commission Communication 16 September 1994, COM (94) 391 final, 3 (emphasis omitted).

99 D. Kennedy/D. E. Webb, "The Limits of Integration: Eastern Europe and The European Communities", 30 Common Market Law Review 1095, at 1098 (1993). See also Williams, supra note 15, at 610. 100 See the Luxembourg European Council, 12 and 13 December 1997, DOC/97/24, paras. 1-47. 101 See K. Inglis, supra note 6, at 1208-1209. 102 Ibid. 103 Kennedy/Webb, supra note 99, at 1098. 104 For the argument concerning the EFTA Countries, see P. G. Nell, "EFTA in the 1990s: The Search for a New Identity", Journal of Common Market Studies 327, at 352 (1990). 105 Kennedy/Webb, supra note 99, at 1116. 106 Miiller-Graff, supra note 18, at 195.

107 see, e.g., "Europe and the challenge of enlargement", Bull. EC, Supplement 3/92 at 12; G. Verheugen, "The Enlargement of the European Union", 5 European Foreign Affairs Review 439, at 442 (2000). 108 Inglis, supra note 6, at 1178-I 179. 109 Cremona, supra note 89, at 209. "° Zielonka, supra note 17, at 136. Agenda 2000, supra note 57, I, part II 'The Challenge of Enlargement', section III, 'A Strategy for Enlargement'. "2 Diamantopoulou, supra note 48, at 4. 113 C. Delcourt: "The Acquis Communautaire: Has the Concept Had Its Day?", 38 Common Market Law Review 829, at 831 (2001). �'4 Ibid., at 848-849.

115 With which Delcourt refers e.g. to the rules and principles governing the institutional structure, those governing the inter-institutional relationships generally and the principles of free movement, non-discrimination and the general principles of EC law. Ibid., at 844-848. 116 Ibid., at 853. Concerning adapting to the CFSP acquis, progress is evidenced by the process of political dialogue and the level of support that the candidate state has shown for EU positions and policies. See Cremona, supra note 11. 117 Delcourt, supra note 113, at 856-858. 118 Ibid., at 869. "9 For this point and the requirement of respect for the rule of law in general, see Cremona, supra note 36, at 13. �zo Commission Regular Report 1999, at 13. 121 Commission Regular Report 2001, at 20. 122 Progress Report 2000 at 17. On the other hand, slowness of court proceedings is also a serious problem e.g. in Italy, which has been repeatedly condemned by the European Court

of Human Rights. See, e.g., Press Release 945 of 11 December 2001 issued by the Court Registrar, "Chamber Judgments Concerning Italy and Poland", according to which the Court had decided in 49 cases that there had been a violation of Art. 6( I) on the right to a "fair and public hearing within a reasonable time" of the European Convention on Human Rights by Italy. The lengths of proceedings subject to the complaints varied between 23 years and seven months (Case Bertot v. Italy, Application No. 51667/99, still pending in Italy on the day of the judgment) and four years and four months (Case G. L. v. Italy, Application No. 51666/99). `z3 See D. Mineshima, "The Rule of Law and EU Expansion", 24 Liverpool Law Review 73, at 80-81 (2002). 124 See Title VII TEU "Provisions on Closer Co-operation, Art. 40 TEU, Art. 11 EC (Amsterdam); Title VII on "Enhanced Co-operation" (Nice). izs P. Craig/G. De Burca, EU Law. Texts, Cases and Materials 46 (2,d Edition 1998). 'zb Ibid.

127 Ibid., at 47-48. Langrish notes, however, that "[fjlexibility, certainly in the first pillar, looks likely to be an area of more academic than practical significance and not likely to grease the wheels of an enlarged Union". See S. Langrish, "The Treaty of Amsterdam: Selected Highlights", 23 European Law Review 3, at 7 (1998). izs See Art. 43 TEU (Nice). Also in general the Nice provisions on enhanced co-operation are more flexible than those of the Amsterdam Treaty. For example, according to the latter, closer cooperation could be used only if it did not affect the acquis (Art 43( 1 )(e)). 129 Council reg. (EC) No 1/2003 of 16 December 2003 on the implementation of the rules on competition laid down in Arts. 81 and 82 of the Treaty, OJ L/1-25 of 4 January 2003. The new reg. becomes applicable on 1 May 2004. ' 3o On this, see G. de Burca, "Differentiation within the Core: The Case of the Common Market", in de B6rca/Scott, supra note 87, at 135. '3' On competition law rules and regulatory convergence in this context, see, e.g., Cremona, supra note 87, at 86-90.

132 See, e.g., T. M. Franck, "The Emerging Right to Democratic Governance", 86 American Journal of International Law, 46-91 (1992). See also S. Marks, "The 'Emerging Norm': Conceptualizing 'Democratic Governance"', Proceedings of the American Society of International Law 375 (1997); Id., The Riddle of All Constitutions. International Law, Democracy and the Critique of Ideology 32 (2000). i33 European Parliament motion for a res. on a "European Democracy Fund", PE 153.155/fin, 9. The res. was adopted on 14 May 1992 and published in OJ C 150, 15.6.1992. 134 Ibid. i3s G. Flynn/H. Farrell, "Piecing Together the Democratic Peace: The CSCE, Norms, and the 'Construction' of Security in Post-Cold War Europe", 53 International Organisation 505, at 524 (1999).

136 R. A. Cichowski, "Choosing Democracy: Citizen Attitudes and the Eastern Enlargement of the European Union", EUI Working Papers, RSC No. 2000/12, at 27. '3' See Agenda 2000, Sect. I, supra note 57. 138 For example, the Commission has reported of limitations of the freedom of the press in Bulgaria, the Czech Republic and in Romania; limitations of free speech in Poland; and a high degree of government control over the media and limitations of the freedom of expression in Slovakia. Also Turkey has serious problems in the area. See, e.g., Commission Progress Reports on Bulgaria, 1998 at 10; 1999, at 14 ("the situation concerning media independence is still of concern. Current plans to introduce general freedom of information legislation are a step in the right direction."); 2000, at 20 ("As concerns freedom of expression, whilst libel can no longer be punished through imprisonment, the level of possible fines remains very high [... ]."); 2001, at 21; and 2002, at 30 ("[... libel remains an offence under criminal law. Fines remain very high [...]. There were criminal cases against journalists accused of libel in 2001, especially against investigative journalists"). In addition, Amnesty International has recently reported of "operations by law enforcement officials" in the Czech Republic in context of large demonstrations that have "violated international standards on arrest and detention, the use of force and firearms and the rights to freedom and assembly". See Amnesty International Press Release "Czech Republic: Past mistakes must not be repeated - respect for freedom of expression" of 16 November 2002, EUR 71/001/2002. The text can be found on the AI website http://www.amnesty.org. 139 See, e.g., Commission Progress Reports on Bulgaria, 1999, at 11; 2000, at 14; 2001, at 15 and 2002, at 20. 140 R. Burchill, "The Promotion and Protection of Democracy by Regional Organizations in Europe: The Case of Austria", 7 European Public Law 80 (2001).

141 Ibid., at 88. Reference here should be to Art. 6(1) of the TEU, while Art. 6 EC refers to environmental protection and sustainable development. iaz Ibid., at 100-102. 143 Marks, supra note 132, 74. "' Ibid., at 52. ias Ibid. '46 Ibid., at 67. 147 Ibid., at 70-71. '48 Kennedy/Webb, supra note 99, at 1116. '49 D. Kennedy, "Turning to Market Democracy: A Tale of Two Architectures", 32 Harvard International Law Journal 373, at 384 (1991). ).

150 Ibid. 151 Kennedy/Webb, supra note 99, at 1115. 'SZ Albi, supra note 45, at 207. Albi refers to the situation in Estonia, where support for European integration has fluctuated between 29-42%. �s3 Marks, supra note 72, at 460-461. 154 Ibid., at 462-463. iss Ibid., at 469. 156 Rittich, supra note 53, at 290.

157 The accession treaties will be ratified by the acceding countries only after popular referenda held between 8 March 2003 (Malta) and 20 September 2003 (Latvia). See the Commission enlargement website, http://www.europa.eu.int/coninVenlargement/negotiations/accession- process.htm. 158 For the last point, see Heather Grabbe, "A Partnership for Accession? The Implications of EU Conditionality for the Central and East European Applicants", EUI Working Papers, RSC No. 99/12, at 24.

�59 See Williams, supra note 15, at 610. 160 Ibid., at 613. 16' Kennedy/Webb, supra note 99, at 1115. 162 see A. Evans, "Voluntary Harmonisation in Integration between the European Community and Eastern Europe", 22 European Law Review 201, esp. at 219-220 (1997). 163 Ibid.., at 219.

'6' On the role of the Commission in the enlargement context, see Grabbe, supra note 158, esp. at 27-28. 165 Zielonka, supra note 17, at 142. 166 For the last point, see ibid., at 137. '6' Ibid., at 132. 161 Ibid., at 135. Nello and Smith point out that for example the question whether the EU can absorb new members and maintain the momentum of its integration are matters of interpretation, as is also judging whether the membership conditions have been fulfilled. See S. Senior Nello/K. E. Smith, "The Consequences of Eastern Enlargement of the European Union in Stages", EUI Working Papers, RSC No. 97/51, at 16.

'69 See the Commission Progress Report on the Slovak Republic 2002, 27-28. See also supra note 67.

"° Inglis, supra note 6, at 1209. 171 Ibid., at 1210. 172 See Hillion, supra note 13. 173 Case 93/78 LotharMattheus v Doego Fruchtimport und Tiefkuhlkost eG, [1978] ECR 2203.

174 Paras. 7-8. 175 "Membership in the United Nations is open to peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." "6 Conditions of Admission of a State to Membership in the United Nations, Advisory opinion of May 28`", 1948, ICJ Reports 1948, 57. 177 Ibid., at 63. 178 Dissenting opinion of Judges Basdevant, Winiarski, Sir Arnold McNair and Read, Ibid., at 85.

179 See Council Conclusions of 29 April 1997 on the principle of conditionality governing the development of the EU's relations with certain countries of south-east Europe, Bull. EU 4/1997, at 132.


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