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2017 | OriginalPaper | Buchkapitel

8. Special Relationships in the European Neighbourhood and Beyond

verfasst von : Henri de Waele

Erschienen in: Legal Dynamics of EU External Relations

Verlag: Springer Berlin Heidelberg

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Abstract

The majority of the rules governing the special relationships with third countries reside in the innermost sphere of the layered global player. They manifest themselves at the conclusion of association agreements, at the establishment of more comprehensive frameworks such as the European Neighbourhood Policy, and in the ongoing process of EU enlargement. In these areas, the Member States are to a large extent free to act in an autonomous capacity and exercise their (residual) sovereign prerogatives. In this chapter, after a quick introduction (Sect. 8.1), we first devote attention to the theory and practice of association relationships (Sect. 8.2), highlighting the legal basis and procedure for concluding the agreements, the institutional apparatus, as well as the effects of the rules laid down. Next, we take a look at some comprehensive policy frameworks for entertaining relations with groups of third countries (Sect. 8.3), scrutinising in subsequent order the European Neighbourhood Policy, the Union for the Mediterranean and the Eastern Partnership. Finally, the topic of accession to the EU is brought to the fore (Sect. 8.5), with an analysis of the relevant criteria, a discussion of the applicable procedure, and a number of reflections on the contradictory positions that have been—and still are—taken with regard to the eligibility for membership.

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Vorheriges Kapitel The Development Cooperation and Humanitarian Aid Policy

Nächstes Kapitel The EU, the Member States and International Law

As will be outlined below, during the (pre-)accession process, the Commission functions essentially in an advisory capacity when negotiating with third countries, monitoring developments and drawing up and submitting progress reports. The restraint expressed by the Court is exemplified by Case 93/78, Mattheus v Doego.

See e.g. Case 55/75, Balkan-Import Export GmbH v Hauptzollamt Berlin-Packhof, paragraph 14.

Case 12/86, Demirel v Stadt Schwäbisch Gmünd, paragraph 9.

See Chap. 1, Sect. 1.5.

After all, the consent of a democratically elected, representative organ of the other contracting party or parties will not always be guaranteed.

Even when this is not legally necessary, Member States often decide for political reasons that an association treaty will be a mixed agreement. In so doing, they are able to ‘stay in the picture’ more emphatically.

Albeit that Article 218(5) TFEU allows for provisional application of a treaty, but where it concerns association agreements this is not a fixed practice. Provisional application can be terminated by a party to the agreement without further notice and without giving reasons (Article 25(2) VCLT). This renders it a weak position to be in for too many years.

Or of the governing body of the international organisation.

Sub-committees may be designated where useful.

Or of the representative body (if any) of the international organisation.

On the EU side, the platform can consist of members of the European Economic and Social Committee.

Cf. Semertzi (2014).

See Case 181/73, Haegeman v Belgium. This also includes referring questions on the interpretation, application or validity of any decisions adopted by the association council; see Case C-192/89, Sevince v Staatssecretaris van Justitie.

See Case 181/73, Haegeman v Belgium.

See e.g. Case 12/86, Demirel v Stadt Schwäbisch Gmünd; Case C-63/99, The Queen v Secretary of State for the Home Department, ex parte Gloszczuk; Case C-171/01, Birlikte v Wählergruppe Gemeinsam; Case C-265/03, Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol.

See Case 30/88, Greece v Commission; Case C-192/89, Sevince v Staatssecretaris van Justitie; Case C-188/91, Deutsche Shell AG v Hauptzollamt Hamburg.

Contrast e.g. the outcome in Case 270/80, Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and Simons Records Limited with that of Case 104/81, Hauptzollamt Mainz v C.A. Kupferberg & Cie KG.

Compare the cases mentioned in the previous footnote with Joined Cases 41-44/70, NV International Fruit Company and others v Commission and Case C-149/96, Portugal v Council (discussed in Chap. 4).

Which has so far served as a main motive for the denial of direct effect in the GATT/WTO case law.

The EEA has an unusual institutional make-up, different to what has been described in Sect. 8.2.4, starring e.g. the EFTA Surveillance Authority instead of an AA committee. Switzerland participates in the EFTA but not in the European Economic Area; at present, the EU entertains a web of bilateral accords with that country, which provide for a high degree of cooperation.

In force since 2003; historically preceded by the Conventions of Yaoundé (1963) and Lomé (1975).

See e.g. Case C-265/03, Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol; Case C-242/06, Minister voor Vreemdelingenzaken en Integratie v Sahin.

Communication from the Commission: European Neighbourhood Policy Strategy Paper, COM(2004) 373 final. In embryonic form, it was already outlined in the Communication from the Commission : Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM(2003) 104 final.

A detailed analysis of its origin and development offers Cremona (2008).

In the absence of concrete action plans, the ENP has not become fully operational yet with regard to Algeria, Belarus, Libya and Syria.

A choice that is further queried in Van Vooren (2009).

For critical and empirical investigations of this approach, see Ghazaryan (2014) and Poli (2016).

Respectively Regulation 638/2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument, OJ [2006] L 310/1, and Regulation 232/2014 establishing a European Neighbourhood Instrument, OJ [2014] L 77/27.

See the Communication from the Commission: Barcelona Process – Union for the Mediterranean, COM(2008) 319 final, as well as the approving Joint Declaration of the Paris Summit for the Mediterranean, Paris, 13 July 2008.

Libya is an observer; the Arab League holds an associated status.

Two dossiers are bound to keep sowing discord: the Western Sahara conflict and the Middle East peace process.

Especially the military and political strife on the Caucasus in the late 2000s brought a sense of urgency to the setting-up of a new comprehensive arrangement. On its origins and intentions, see also Korosteleva (2011).

See Communication from the Commission: Eastern Partnership, COM(2008) 823 final, as approved in the Joint Declaration of the Prague Eastern Partnership Summit, Prague, 7 May 2009.

Cf. Nielsen and Vilson (2014).

The Commission has not brought much clarity by proclaiming that geographic, historic as well as cultural elements are of relevance: see the report Europe and the Challenge of Enlargement, Bull. EC [1993] Supplement 3.

Covertly referred to in Article 49 TEU as “the conditions of eligibility agreed upon by the European Council”.

Presidency Conclusions, Copenhagen European Council, 21–22 June 1993, paragraph 7.

The requirements are worked out further in the Commission Report Agenda 2000: For a Stronger and Wider Union, Bull. EU [1997] Supplement 5, encompassing inter alia a modern constitution guaranteeing basic democratic rights, independent judicial and constitutional authorities, respect for human rights, protection of the rights of minorities, and a liberalised market governed by supply and demand, with no barriers to exit or entry.

Presidency Conclusions, Madrid European Council , 15-16 December 1995, part III-A.

For a further analysis of these additions, see Hillion (2004).

While Article 49 TEU makes no mention of this, it are ordinarily the Member States meeting in the framework of the European Council that decide to confer that status. A practice has developed whereby countries with an EU vocation that not yet fulfil the first of the Copenhagen Criteria are tagged as ‘potential candidate members’.

The opinion of the Commission is quite lengthy, and will have reflected on the possibility of the applicant to meet all the requirements in due time.

Or delay it. For instance, in 2009, the request for an opinion on the application of Albania was postponed on the insistence of the German government.

Chapters can e.g. pertain to the EU rules on competition, the environment, consumer protection or the media. The number and content of the chapters may vary; for example, during the accession process of Bulgaria and Romania, the acquis was divided into thirty-one chapters, whereas Turkey and Croatia have been confronted with a line-up of 35 chapters.

As Mr Frits Bolkestein, a former Internal Market Commissioner, once quipped.

See e.g. Smith (2003); Gateva (2015).

As pointed out by Williams (2000), these aspects have not always been taken sufficiently seriously.

With Article 49 TEU merely stating that “[t]he conditions of eligibility agreed upon by the European Council shall be taken into account”, which leaves the latter some flexibility to mould them. Scholars have wondered whether the provision itself is actually that important; see e.g. Avery and Cameron (1998), p. 23.

By the same standard, one could question the genuine ‘European’ character of Malta and its inhabitants.

It has often voiced in debates on Turkish accession. A common additional argument for admitting that country is that it was promised membership in the 1960s already. However, one could reply that at that time, the prospect was given of joining an economic community, and that the Member States made good on their promise when they established a customs union with Turkey at the end of the 1990s.

See further e.g. Kochenov (2008); Albi (2009).

Communication from the Commission: Enlargement Strategy and Main Challenges 2012–2013, COM(2012) 600 final.

In the preceding sections, we have consciously left aside kindred projects such as the ‘Northern Dimension’ (1999), the ‘Black Sea Synergy’ (2008), and the ‘Strategy for the Ionian and Adriatic Region’ (2014).

Already alluded to in the 1993 Presidency Conclusions outlining the Copenhagen Criteria, worked out further in the Communication from the Commission: Enlargement Strategy and the Main Challenges, COM(2006) 649 final, Annex 1, Special Report on the EU’s Capacity to Integrate New Members, and the Presidency Conclusions, Brussels European Council , 14–15 December 2006, part I.

Albi A (2009) Ironies in human rights protection in the EU: pre-accession conditionality and post-accession conundrums. Eur Law J 15:46–69CrossRef

Avery G, Cameron F (1998) The enlargement of the European Union. Sheffield Academic Press, Sheffield

Cremona M (2008) The European neighbourhood policy: more than a partnership? In: Cremona M (ed) Developments in EU external relations law. Oxford University Press, Oxford, pp 244–300CrossRef

Gateva E (2015) European Union enlargement conditionality. Palgrave Macmillan, BasingstokeCrossRef

Ghazaryan N (2014) The European neighbourhood policy and the democratic values of the EU: a legal analysis. Hart, Oxford

Hillion C (2004) The Copenhagen criteria and their progeny. In: Hillion C (ed) EU enlargement: a legal approach. Hart, Oxford, pp 1–23

Kochenov D (2008) EU enlargement and the failure of conditionality. Kluwer Law International, The Hague

Korosteleva E (ed) (2011) Eastern partnership: a new opportunity for the neighbours? Routledge, London

Nielsen K, Vilson M (2014) The eastern partnership: soft power strategy or policy failure? Eur Foreign Aff Rev 19:243–262

Semertzi A (2014) The preclusion of direct effect in the recently concluded EU free trade agreements. Common Market Law Rev 51:1125–1158

Smith K (2003) The evolution and application of EU member state conditionality. In: Cremona M (ed) The enlargement of the European Union. Oxford University Press, Oxford, pp 105–140CrossRef

Poli S (ed) (2016) The European neighbourhood policy – values and principles. Routledge, London

Van Vooren B (2009) A case study of soft law in EU external relations: the European neighbourhood policy. Eur Law Rev 34:696–719

Williams A (2000) Enlargement of the Union and human rights conditionality: a policy of distinction? Eur Law Rev 25:601–617

Titel: Special Relationships in the European Neighbourhood and Beyond
verfasst von: Henri de Waele
Verlag: Springer Berlin Heidelberg
Buch: Legal Dynamics of EU External Relations
Print ISBN: 978-3-662-54816-5

Electronic ISBN: 978-3-662-54817-2

Copyright-Jahr: 2017
DOI: https://doi.org/10.1007/978-3-662-54817-2_8