Abstract
Most 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, we first devote attention to the theory and practice of association relationships (para. 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 more comprehensive frameworks for entertaining relations with groups of third countries (para. 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 (para. 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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Notes
- 1.
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.
- 2.
Case 12/86, Demirel v Stadt Schwäbisch Gmünd, para. 9.
- 3.
See Chap. 1, para. 1.5.
- 4.
After all, the consent of a democratically elected, representative organ(s) of the contracting party will not always be guaranteed.
- 5.
Even when this is not legally necessary, Member States often decide for political reasons that an association treaty will be a mixed agreement. In doing so, they are able to ‘stay in the picture’ more emphatically.
- 6.
Albeit that Art. 218 (5) TFEU allows for provisional application of a treaty, but this is not common practice where it concerns association agreements. Provisional application can be terminated by a party to the agreement without further notice and without giving reasons (Art. 25 (2) VCLT). This renders it a weak position to be in for too many years.
- 7.
The name may vary, depending on the official designation of the relationship. If e.g. the official designation is a ‘partnership and cooperation agreement’, it will have a ‘partnership and cooperation council’.
- 8.
Or of the governing body of the international organisation.
- 9.
Again, the name may vary, depending on the official designation of the relationship. So, if the official designation is a ‘partnership and cooperation agreement’, it will have a ‘partnership and cooperation committee’.
- 10.
Or of the representative body (if any) of the international organisation.
- 11.
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, S.Z. Sevince v Staatssecretaris van Justitie.
- 12.
See Case 181/73, Haegeman v Belgium.
- 13.
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.
- 14.
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.
- 15.
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.
- 16.
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).
- 17.
Which has so far served as a main motive for the denial of direct effect in the GATT/WTO case law.
- 18.
The EEA has an unusual institutional make-up, different to what has been described in para. 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.
- 19.
In force since 2003; historically preceded by the Conventions of Yaoundé (1963) and Lomé (1975).
- 20.
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.
- 21.
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.
- 22.
A detailed analysis of its origin and development offers Cremona (2008).
- 23.
In the absence of concrete action plans, the ENP has, however, not yet become fully operational with regard to Algeria, Belarus, Libya and Syria.
- 24.
Communication from the Commission: A New Response to a Changing Neighbourhood, COM (2011) 303.
- 25.
For an in-depth survey of the pertinent rules, see Van Vooren (2009).
- 26.
Regulation 638/2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument, OJ [2006] L 310/1.
- 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.
- 28.
Libya is an observer; the Arab League holds an associated status.
- 29.
Reportedly, the northern EU states in particular are not anxious to commit the required financial resources to the inherently southern-focused franchise. Moreover, three dossiers are bound to continue to sow discord: the Middle East peace process, the Western Sahara conflict, and the partition of Cyprus.
- 30.
Especially the military and political conflicts on the Caucasus in the late 2000s brought a sense of urgency to the setting-up of a new comprehensive arrangement.
- 31.
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.
- 32.
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.
- 33.
Covertly referred to in Art. 49 TEU as “the conditions of eligibility agreed upon by the European Council”.
- 34.
Presidency Conclusions, Copenhagen European Council, 21–22 June 199, para. 7.
- 35.
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.
- 36.
Presidency Conclusions, Madrid European Council, 15–16 December 1995, part III-A.
- 37.
For a further analysis of these additional demands, see Hillion (2004).
- 38.
While Art. 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’.
- 39.
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.
- 40.
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.
- 41.
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 split into 31 chapters, whereas Turkey and Croatia have been confronted with a line-up of 35 chapters.
- 42.
As Frits Bolkestein, a former Internal Market Commissioner, once quipped.
- 43.
- 44.
As pointed out by Williams (2000), in the past, these aspects have not always been taken sufficiently seriously.
- 45.
During this period, the prospective new member holds the status of observer in the EU institutions.
- 46.
With Art. 49 TEU merely stating that “[t]he conditions of eligibility agreed upon by the European Council shall be taken into account”, which gives the latter some flexibility to mould them. Some scholars have wondered whether the provision itself is actually that important; see e.g. Avery and Cameron (1998), p. 23.
- 47.
Additionally, one could question the genuine ‘European’ character of Malta and its inhabitants.
- 48.
It is most often voiced in the 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.
- 49.
- 50.
In the preceding paragraphs, we have for that matter consciously left aside the ‘Black Sea Synergy’, launched in early 2008.
- 51.
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.
- 52.
Moreover, one would be interested to know how this capacity is being measured. One is reminded of the urgent warnings in the early 2000s that an EU would be unable to cope with 27 Member States, where at present, it does not seem to languish or have entered into a terminal phase just yet.
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de Waele, H. (2011). Special Relationships in the European Neighbourhood and Beyond. In: Layered Global Player. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20751-8_8
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