The Neighbours

Abstract

The EU’s conventional enlargement policy has run its course. Yet the Union must prepare itself to take fuller responsibility for the wider neighbourhood. A new category of affiliate membership would suit both the Union’s western and eastern neighbours, allowing for an upgrade of all the current association agreements and privileged participation in the work of the EU institutions.

Few things have caused more problems for the European Union as its enlargement. The treaty bids the bloc to welcome to membership any European state that respects the values of the Union “and is committed to promoting them”.¹ In practice, however, admitting new members is fraught with complications, not the least of which are the recalibration of power and finance that must then take place among the existing member states as well as the coming to terms with new next-door neighbours at the expanded border.

In 1993, at Copenhagen, the European Council spelled out what made an eligible candidate for membership—and it has been trying to apply the criteria ever since. New member states must be able to demonstrate stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. They will need a functioning market economy and the ability to cope with competitive pressure and market forces within the EU. They must have the ability to take on all the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of Union law (the acquis). And they must adhere to the aims of political, economic and monetary union.

Enlargement is not only a domestic question for the Union but also an instrument of its foreign and security policy. It requires an integrated and not a fragmented approach that fully recognises the deeply political challenge of adding new members into an existing pact of a federal type. The conduct of enlargement policy has long since ceased to be the preserve of diplomats. EU citizens and national parliaments have rightly demanded a say in the decision about where the territory of their new European polity starts and stops.

The End of Enlargement?

For the first twenty years of its existence, the then European Community was plagued by the question of whether to admit the British and, if so, on what terms. After the eventual accession of the UK, Ireland and Denmark in 1973—Norway was lost on voyage—the Union took another thirty years to grow to fifteen member states. Then the ‘big bang’ enlargement in 2004 saw membership jump to twenty-five. This was followed by the entry of Bulgaria and Romania in 2007 and Croatia in 2013. All the newcomers have found it more difficult than expected to adapt as member states under the EU regime and some, notably Hungary and Poland, have since openly disavowed the values of the Union to which they so recently signed up. Public support for enlargement cooled. In the UK, exaggerated fear of Turkish accession (stoked by Boris Johnson) is thought to be one of the chief reasons for the Leave vote in the 2016 referendum. Chastened by difficulties in assimilating the new members, sobered by the stress of large-scale irregular immigration from Africa and the Middle East and badly bruised by Brexit, few serious EU politicians were left to champion the further expansion of the bloc. Instead of preparing for further enlargement, the Union was busy building a Fortress Europe—in many cases, such as on the Polish border with Belarus, quite literally out of ditches, razor wire and watchtowers.

Before the Ukraine crisis, at least, EU enlargement had effectively ground to a halt. Now Ukraine, Georgia and Moldova seek a fast-track entry to membership. One appreciates that emotional responses to Ukraine lead many, including President von der Leyen, to make generous tweets and gestures about the immediate renewal of the Union’s enlargement to the east. Nonetheless, while nobody can know the future, it is important to recall that the EU has strict procedures concerning the accession of new members and that they are there for a purpose.

An official decision to admit new members is subject to a lengthy procedure involving, first, a favourable opinion from the Commission, the assent by an absolute majority of the European Parliament and the unanimous agreement of the European Council. A candidate then has to be able to open and close negotiations on thirty-one chapters, the fundamentals of which concern economic readiness, the functioning of democratic institutions and the reform of public administration.² The final accession treaty has to be agreed by every government and ratified by the parliaments of the twenty-seven member states (in some cases involving referendums)—to say nothing of the democratic consent of the candidate country itself.

Debates about enlargement usually focus on the eligibility and state of readiness of the candidate countries to assume the honour of Union membership. Too little attention is paid to the capacity of the Union to absorb new members. It is in truth the systemic feebleness of the EU’s own governance which weighs against the further enlargement of the bloc. Brussels is still processing the impact of Brexit which, at least superficially, has left the Union weaker, smaller and poorer. As things stand, the EU institutions are unfit for the purpose of internalising the national problems of the Balkans or of Ukraine, Georgia and Moldova. The Russo-Ukrainian war does not alter these fundamentals.

The Commission has prepared its Opinions on the accession of Ukraine, Georgia and Moldova. It has positioned these East European applications in the context of the stalled enlargement process in the Western Balkans. The Commission will rehearse the formal accession procedure. It may be able to be unusually inventive, speed up the process and modify its approach. One proposal, from Michael Emerson and colleagues, is to admit the candidate states in phases, involving gradually increased participation in EU institutions.³ In the final pre-accession phase, after meeting various tests, the new member states would be admitted to the Council but deprived of their right of unilateral veto. It is hoped, optimistically, that letting in new members as probationers empowered only to act by QMV would set an example which old member states might wish to emulate.

Nevertheless, on the basis of the current treaty and Copenhagen criteria, on which the Commission’s Opinion will ultimately rest, the chance of early Ukrainian accession is negligible. The Union is honour bound, therefore, to address the question of how, in such circumstances, it can shoulder its responsibilities to the troubled wider Europe. The treaty commits the EU to develop a “special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation”.⁴ But how should this commitment be translated into practical moves to advance the social, economic and political aspirations of its neighbours—to develop, in other words, what Commission President Romano Prodi called a comprehensive “proximity policy”? The need to repair the devastation of Ukraine after the Russian invasion brings a new urgency to that old question.

The Eastern Neighbours

The Union would do well, in the first instance, to learn from previous mistakes in the way it has handled its eastern neighbourhood. Wishful thinking is no basis for strategy. Western assumptions about the ease of the transition of ex-Soviet countries into stable liberal democracies have been confounded by events. The Union’s interventions on its eastern borders have not stabilised the region or added to its own security—indeed, rather the contrary. Russia’s invasion of Ukraine shatters any residual post-Cold War illusion that the EU’s eastward expansion will be uncontested. At the time of writing (May 2022), it is impossible to predict how the conflict will end. War reshuffles the pack. But there is one very important lesson for Brussels to learn: that the Union needs now to drop its pretence that it will admit its eastern and southern neighbours to full membership once they pretend to be ready.

Facing up to reality also requires the EU to achieve a genuine unity of purpose with respect to its neighbourhood policy. This has not always been the case. While the European Parliament has been fairly consistent in wanting enlargement for its own sake, several member states have supported eastern enlargement only as a buffer against Russia and Turkey. Other states, traditionally led by Britain, have promoted enlargement in the fond expectation that the newcomers would blunt the drive to a deeper European integration of a federal type. Mixed messages have not been helpful.

Ursula von der Leyen continues to defend the line introduced by the European Council at Thessaloniki in June 2003, namely that its then Stabilisation and Association Process “will remain the framework for the European course of the Western Balkan countries all the way to their future accession”. Few believe her—certainly not the leaders of Serbia or Albania who are already, wisely, wondering how to better secure their own regional interests in spite rather than because of the European Union. Serbia’s President Aleksandar Vucic and Albanian Prime Minister Edi Rama know very well that if the Commission is ambiguous about enlargement, the Council presents an insuperable obstacle. It should not be missed that a Western Balkans summit at Brdo in October 2021 could only agree to confirm support for the enlargement process—but not for actual enlargement.⁵

The facts on the ground rather speak for themselves.⁶ Although democratic strides have been made, especially by younger generations, most potential candidates for EU membership in Eastern Europe and the Western Balkans still suffer from endemic corruption, organised crime, religious strife, antisemitism, ethnic tension and a compromised judiciary. Many are quarrelling with their immediate neighbours. Stable multi-party democracy is rare. Few enjoy the conditions for steady economic development. All are at a distance from meeting the increasingly tough eligibility criteria for Union membership—criteria which, as France especially has insisted, will be applied rigorously henceforward. The days are long gone when the theoretical Copenhagen criteria could be amiably ignored in practice.

The truth is that there is a dearth of eligible candidates for EU accession. None of the six countries of the Western Balkans—Serbia, Montenegro, North Macedonia, Albania, Bosnia Herzegovina and Kosovo—have attained the fully rounded character of a modern independent state, let alone a state capable of taking on the obligations of EU membership. Kosovan independence, denied by Serbia and Russia, is not even recognised by five current EU member states.⁷ The EU dispenses large sums of aid to the rulers of those countries in the hope of boosting their European credentials. But two dictatorships, China and Russia, vie with the EU for influence in the region. And they all compete with Turkey, officially an EU candidate itself since 1999, but long since removed beyond the pale by adopting an authoritarian government and flouting fundamental rights.

In 2014, the EU signed elaborate and ambitious Association Agreements with Ukraine, Georgia and Moldova.⁸ These Agreements created a deep and comprehensive free trade area (DCFTA) and were predicated optimistically on there being steady convergence with the EU acquis and the transformation of the three states into stable, secure market democracies based on the rule of law. The three Association Agreements looked good enough in Brussels but provoked a staunch backlash in several member states.⁹ The European Council felt obliged to confirm that the Agreement “does not confer on Ukraine the status of a candidate country for accession to the Union, nor does it constitute a commitment to confer such a status to Ukraine in the future”.¹⁰

Signing up to the EU’s Association Agreements also sparked major political convulsions within the three countries, being too much for pro-Russian nationalists and too little for pro-European opinion. Although the economic development of Ukraine was latterly encouraging—not least profiting from the benefit of visa liberalisation—it is still a very poor country by western standards.¹¹ And its progress towards liberal democracy has been spasmodic. Because Ukraine failed to meet requisite EU norms of governance, its gradual integration into the internal market, as presaged by the DCFTA, has not happened. Vladimir Putin consistently threatened to retaliate if progress towards Europe was resumed. He was surely to be taken at his word.

The Western Neighbours

Over the years, the EU has crafted association and free trade agreements with its western neighbours as a substitute for failed membership bids.¹² Iceland, Norway and Switzerland, with little Liechtenstein, compose the European Free Trade Area (EFTA). Iceland, Norway and Liechtenstein trade with the EU under the protection of the European Economic Area agreement of 1992 (EEA). Although they are not in the customs union, the EEA trio have privileged access to the single market and have joined the Schengen area. A separate EFTA court works in a sisterly fashion with the European Court of Justice to resolve disputes according to EU law. There is no instance of major divergence between the EEA and EU, although the Commission complains of the late adoption of EU law by the EEA states. In terms of democratic accountability, however, the EEA leaves a lot to be desired.

Switzerland, having failed to accept the EEA, has been left with a free trade agreement dating back to 1972. Modernisation of the Swiss arrangement has been hampered by a weak Federal Council in Bern having to have everything endorsed by referendums. Given the fact that the Alpine Swiss are surrounded by the Schengen area, a certain pragmatism was inevitable—for example with veterinary, health and food safety checks and customs’ controls—but discord persists on the questions of free movement of people, maintaining a level playing field and state aid. In the institutional arena, the role of the European Court of Justice, the standing of the Swiss parliament and the size of the annual budgetary contribution to EU coffers (CHF 1.3 billion) have caused difficulties. A total of 120 separate bilateral arrangements, sector by sector, spark litigation, and the protracted negotiation of a framework agreement between Bern and Brussels has not been humorous. No further progress is expected until after Switzerland’s next federal elections in 2023.

Although no longer candidates for EU accession, each EFTA country has to work hard to manage its own eurosceptic public opinion. They have been watching Brexit closely. The Commission was anxious not to concede to the UK something which it would then be bound to offer also to EFTA. Conversely, the EFTA countries were wondering if the UK would gain something they could then lay a claim to themselves. There is growing dissatisfaction in EFTA that as European Union integration advances via the Treaty of Lisbon into civic, police and justice matters, including asylum and immigration, the democratic deficit grows. The extension of the EU’s regulatory clout into digital market, energy supply and climate change policies presents new challenges. Now thirty years old, the EEA was and is essentially just a trading arrangement run by technocrats. The Swiss arrangements—weirdly touted from time to time by Boris Johnson as a model for Britain—are clearly unsatisfactory.

The western refuseniks—Iceland, Norway, Switzerland and the UK—have all decided for reasons of their own that they do not want EU membership. The question will soon arise, however (if it has not already), about how a new model of a more dynamic and democratic partnership might suit all parties better. This I will call affiliate membership of the European Union.

Affiliate Membership

At present, there is nothing in the EU treaties between full EU membership and no membership. The plethora of association agreements of different types and intensities attempts to fill the gap. It is in the EU’s interest that it maintains and where possible strengthens its own contribution to the prosperity and security of its neighbours. The current association agreements are not an adequate vehicle for these purposes and are overdue for an overhaul. A new form of affiliate membership would be a more realistic objective than the false hope of full accession—as well as being a more assured conduit for EU trade and leverage and assistance to those affiliated partners that want it. Affiliation would require all parties to aim for stability based on political honesty and legal certainty, putting a stop to the pretences that pepper the rhetoric about the enlargement of the Union.

The general purpose of affiliation is to allow European states with social market economies, trading within the EU’s regulatory orbit, to become stable and reliable partners of the Union without having to espouse the goal of political, economic and monetary union. Affiliate status should be regarded as a durable settlement and not necessarily as a springboard for full membership. Naturally, affiliation as a long-term partner of the Union should require respect for the Charter of Fundamental Rights and for the values on which the Union is founded—democracy, the rule of law and fundamental rights.¹³ But affiliated countries would not be required to sign up to the political objectives of the Union.¹⁴ The Copenhagen criteria should be retained by the EU as its benchmark for accession but not affiliation.

The installation of a new formal category of affiliate membership will require treaty change.¹⁵ The new clause—a possible draft of which can be found in Annex III—will establish an appropriate legal base for a privileged partnership with close neighbours that can develop confidently to mutual benefit. A new accession process will have to be devised for affiliate member candidates, but this will be less onerous and, importantly, much quicker than the current procedures for full membership. Finding the precise right balance between full membership and non-membership will be attuned to the differing circumstances of the affiliate states and will be a matter for specific negotiation.

For the EU’s western neighbours, affiliate membership would imply a significant upgrading of current agreements. This would be especially valuable for the UK which concluded a minimalistic Trade and Cooperation Agreement (TCA) with the EU on Christmas Eve 2020. Concluded under international and not Union law, this Agreement is unusual, to say the least, because it pitches not at convergence but at divergence from the acquis. Unlike the Union’s conventional association agreements, the British pointedly refused to pay respect to EU values.¹⁶ In truth, the TCA is more about dissociation than association. Unsurprisingly, it is already under stress, not least with respect to the position of Northern Ireland which remains in the European single market for goods. While the TCA is fiercely defended by the current nationalist government in London, it has led to a steep fall in UK trade with Europe, labour shortages, customs difficulties and many practical problems for EU and UK citizens alike. It continues to reduce British political influence on the European mainland and across the world (especially in Washington).¹⁷ The UK rejected EU proposals to include a chapter in the Agreement on foreign, security and defence policy.

The Trade and Cooperation Agreement will be up for review from 2024 onwards, when the next UK general election is in any event scheduled to take place. The opposition parties of Labour, Liberal Democrats, and Greens as well as the Scottish and Welsh nationalists are already promising to seek some (unspecified) form of fresh convergence with Brussels. A Political Declaration on the framework for future EU-UK relations was signed by Boris Johnson in 2019 but was later discarded by him.¹⁸ The Political Declaration would be a good place for another British government to start on the renewal of relations with the EU. Reconciliation will not be straightforward, because the UK is so deeply distrusted by its erstwhile partners and domestic opinion in Britain remains bitterly divided on the Europe question. A new deal for post-Brexit Britain, therefore, will have to be inventive, take its time and be bipartisan. It will be crafted in the full knowledge that it could provide the pretext for the transformation of the EU’s other neighbourhood partnerships. If affiliate membership beckons for Britain, it will be sure to have wider relevance.

For the EU’s eastern neighbours, affiliate membership will facilitate convergence on EU norms without obliging them to leap improbable legal and political hurdles or to surrender national state sovereignty to a degree that would be unacceptable, for example, to President Vucic (who, now re-elected until 2027, tags along behind Orban). In the Balkans, affiliate membership should be deployed to intensify democratic reform and encourage intra-regional collaboration. Affiliation will mean closer political cooperation with Brussels, the expansion of trade, investment and cultural ties and the systematic joint management of EU-funded programmes. The affiliate package, building on current partnership agreements, could be made available for the Balkans promptly. For Ukraine, Georgia and Moldova, the timing of affiliation depends on the outcome of the war. But the EU must be prepared for whatever happens next in Russia, unlike in 1991. The addition of affiliate membership to the EU’s arsenal will enlarge the options available to both Brussels and Kyiv—options which, at least at present, seem in rather short supply.

Affiliate membership would also offer, should it be needed, a parking place for any current EU member state, like Hungary or Poland, that sought to dissociate itself from an EU that has chosen to take the path towards a federal union. A negotiated relegation to affiliate status would avoid the costly humiliation of a UK-style secession while maintaining close links with Brussels.

Affiliating with the EU Institutions

In institutional terms, for those countries enjoying a current association agreement, promotion to affiliate membership (to be worth the trouble) must mark a significant upgrading of their relationship with the Union. The present clutch of joint committees, mixed parliamentary bodies and partnership councils will need to be reinforced to govern the new condition of affiliation and cope with the demands of a necessarily more dynamic relationship. For the EEA countries, which already enjoy privileged access to the single market, affiliate membership must confer the new right to participate in the Council vote—without the power of veto—on relevant market regulation. This would plug the glaring democratic deficit which exists for the EEA at present.

Furthermore, all affiliate members should be involved in the preparation and implementation phases of EU laws that will apply to them. Affiliate states joined to the EU customs union must be informed and consulted and given a say in all EU trade policy negotiations. Affiliate ministers and officials should be included as observers in regular Council business. Engagement would take place at every appropriate level, including within the comitology system aimed at improving the smooth and correct application of those EU regulations adopted by the affiliate states. Likewise, parliamentarians from the affiliate states, especially rapporteurs, should be welcome to attend the legislative committees of the European Parliament.

The EU institutions will have to adapt to accommodate the new status of affiliate membership. They are already proven able to manage a degree of internal differentiated integration among member states, notably through the treaty provisions on enhanced cooperation. They may now have to cater for external differentiated integration among a dozen varieties of affiliate member states. For the Commission, especially, although well used to the complexity of running association agreements, the installation of affiliate membership will bring new challenges. While differentiation beyond EU orthodoxy demonstrates welcome flexibility, there are certainly limits to pragmatism. Excessive differentiation would risk boosting centripetal dynamics that could unravel the acquis communautaire and create normative confusion.¹⁹

The EU will be properly concerned to retain a clear distinction between the respective rights and duties of full and affiliate member states. As the Brexit process demonstrated, the Union is highly sensitive to the dangers of cherry-picking by third countries. While the option of full membership will remain open conditionally to all, as the treaty prescribes, the boundaries between full and partial membership must be clearly demarcated and regularly policed. Practical experience of partial membership may very well lead certain affiliate members in due course to apply for accession as full members. Unlike the current association agreements, the affiliation agreements should be designed to serve as effective preparation for full membership for those countries who want it—just as they should suit as a permanent parking place for those who don’t.

In all events, the Commission remains the essential central pillar of EU governance for the whole European neighbourhood. A senior Commissioner should be appointed with specific responsibility for relations with the nexus of affiliate members, including oversight of their participation in EU spending programmes and related budgetary contributions. Access to all relevant EU agencies should be guaranteed for affiliate states. The pandemic illustrates the importance of the Commission’s capability to cajole and coordinate member states in matters of public health: the coronavirus does not stop at the Union’s frontiers. Such executive action is needed across a wider geography, and the role of EU agencies in working on a reciprocal basis with affiliate members will become critical. Re-joining the EU’s executive and research agencies should be particularly welcome to the UK, including the European Defence Agency.²⁰

Because the treaties of affiliation would fall under the jurisdiction of the European Court of Justice, the courts and lawyers of the affiliated states should be accorded privileged access in Luxembourg. Affiliates would be empowered to approach the EU Court for preliminary rulings over the interpretation or implementation of the affiliation treaty.²¹ They might institute third-party proceedings to contest a judgment of the ECJ rendered without their being heard where the judgment is prejudicial to their affiliation treaty rights. In addition, a citizen or legal entity in an affiliate state should be entitled to seek redress in the European Courts if directly, individually and adversely affected by an EU act.²²

Other attributes of EU citizenship, such as protected residency rights, should be shared through reciprocity with the affiliate members. Certain individual rights should also be extended—for example, the opportunity to take part in popular consultations such as the Conference on the Future of Europe and to engage in a European Citizens’ Initiative.²³ EU political parties and civil society organisations would naturally extend their activities to include the affiliate states. The right to vote and stand in an election to the European Parliament could be extended to affiliate citizens resident within the EU. The right to petition the Parliament and apply to the EU Ombudsman could also be widened to affiliate citizens. The formal consultative organs of the EU, the Economic and Social Committee and Committee of Regions, could be fully opened up to participants from the affiliate states to amplify the influence of the affiliates on the Brussels policy makers and help vertical coordination with affiliate social partners and regional and local government.²⁴

Affiliates should also be granted the option of becoming a stakeholder in the European Investment Bank (EIB).²⁵ The activities of the EIB are of special interest to underdeveloped regions. The national central bank of an affiliate state could be formally allied to the European System of Central Banks which, under the direction of the ECB, is dedicated to maintaining the overall stability of Europe’s financial system.²⁶ Likewise, affiliates would engage with the EU Court of Auditors when accounting for their dealings with the EU budget.

Whereas conventional association agreements are mostly intergovernmental in character, run by government officials and Brussels technocrats, affiliate membership should be designed to engage wider civil society and economic interests in the life of the Union. Affiliation should aim to replicate the pluralistic relationship of full membership, involving professional stakeholders, social partners and non-governmental actors—including opposition parties—in official dialogue with the EU. European integration is not the exclusive preserve of ruling elites. Deeper engagement with the Union by large sections of society should stimulate the swifter development of secular liberal democracy in those affiliate member states that aspire to it, notably in the Balkans.