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The Security Implications of Enlargement on EU Fundamentals

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Solidarity and Rule of Law

Part of the book series: European Union and its Neighbours in a Globalized World ((EUNGW,volume 9))

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Abstract

Considering the three different approaches that have characterized the evolution of the EU’s enlargement policy, this chapter will show that the ‘duty of solidarity’ that permeated previous enlargements toward Eastern Europe has given way to a strong focus on the principle of ‘fundamentals first’ in the accession process of Western Balkan countries. Consisting mainly in the transfer of justice and home affairs (JHA) acquis and crime control policies aimed at respecting the rule of law principle, the current enlargement process has relegated these countries to a partnership ‘limbo’. In particular, we intend to show that despite strong conditionality in the JHA domains, the previous enlargement processes have ended up affecting the EU’s core values, and in turn, the accession methodologies and strategies toward the Western Balkans, rendering the European ‘perspective’ almost a mirage.

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Notes

  1. 1.

    See Ott and Wessel (2006), p. 21 ff. and, more recently, Douma et al. (2021), Wouters et al. (2021) and Chamon and Govaere (2020).

  2. 2.

    See Anderson (2007) and Lutterbeck (2005).

  3. 3.

    Cremona (2004a).

  4. 4.

    Furthermore, the Lisbon Treaty indicates a modus operandi for the implementation of the Union’s external action: ‘to develop relations and establish partnerships’ with third countries and organizations that share the same principles, and makes explicit reference to the promotion of multilateral solutions to common problems (Art. 21.2 TEU). More extensively on the peculiarities of external action, see Bartoloni and Poli (2021).

  5. 5.

    Jakovleski (2010).

  6. 6.

    In this sense, see Tulmets (2007).

  7. 7.

    According to Sotiris Walldén (2017), p. 3, ‘[e]nlargement does not basically fall under the remit of foreign policy. Rather, it is related to the architecture of the Community/Union itself, since its objective is to bring third countries into the Union. This is why enlargement was not included in the European External Action Service (EEAS), created by the Lisbon Treaty’.

  8. 8.

    With specific reference to the Western Balkan countries, Macchiarini Crosson (2021) underlines that their security and defense architecture still has gaps and suggests their improvement thanks to pre-accession convergence in the field of security and defense policy. The Western Balkans are in fact members of the Organization for Security and Co-operation in Europe (OSCE) and NATO.

  9. 9.

    Russo (2020).

  10. 10.

    Lavenex (2012).

  11. 11.

    Communication from the Commission to the European Parliament and the Council (10 October 2012) Enlargement Strategy and Main Challenges 2012–2013, COM/2012/600 final.

  12. 12.

    Sjursen (2006), p. 12.

  13. 13.

    Franck (2006), p. 169.

  14. 14.

    Whitam and Wolff (2010). See also the considerations of Ingravallo (2019).

  15. 15.

    See Tulmets (2007).

  16. 16.

    See Cremona (2017).

  17. 17.

    Sotiris Walldén (2017), p. 3. An example concerning the response to Russia’s aggression against Ukraine can be found. See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (12 October 2022) 2022 Communication on EU Enlargement Policy, COM(2022) 528 final, where it is stated that: ‘Full alignment with the EU’s CFSP by Albania, Montenegro and North Macedonia is a strong signal of their strategic choice of EU accession. The significant increase in formal CFSP alignment rate by Bosnia and Herzegovina and unilateral alignment by Kosovo are also recognised and welcomed. Serbia’s CFSP alignment rate has substantially decreased over the reporting period. Serbia is expected, as a matter of priority, to fulfil its commitment and progressively align with the EU CFSP, including with restrictive measures, in line with its negotiating framework’.

  18. 18.

    Art. 237 TEEC provided that: ‘[a]ny European State may apply to become a member of the Community. It shall address its application to the Council, which shall act unanimously after obtaining the opinion of the Commission’. Art. O added ‘the assent of the European Parliament, which shall act by an absolute majority of its component members’.

  19. 19.

    Art. 49 required compliance with the principles set out in Art. 6(1).

  20. 20.

    According to European Council in Copenhagen (21–23 June 1993), Presidency Conclusions, SN 180/1/93 REV 1: ‘[m]embership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union’.

  21. 21.

    European Council in Essen (9–10 December 1994), Presidency Conclusions, EU 12- 1994, p. 12.

  22. 22.

    European Council in Madrid (15–16 December 1995). Presidency Conclusions, EU 12- 1995, p. 18.

  23. 23.

    European Council in Luxembourg (12–13 December 1997), Presidency Conclusions.

  24. 24.

    Commission of the European Communities (15 July 1997) Agenda 2000 Vol. I: For a stronger and wider Union, COM/97/2000 final, Agenda 2000 Vol. II: The challenge of enlargement, COM/97/2000 final.

  25. 25.

    European Council in Brussels (14–15 December 2006), Presidency Conclusions, 16879/1/06 REV 1.

  26. 26.

    Commission Opinion (12 October 2011) on the application for accession to the European Union by the Republic of Croatia, in O.J. L 112/3.

  27. 27.

    EU’s enlargement policy involves instruments which allow differentiated treatment’, so Lippert (2017), p. 2.

  28. 28.

    Basheska (2014).

  29. 29.

    The European Approach toward South-East Europe as a region was unveiled as the Stability Pact for South-Eastern Europe (1999/345/CFSP, Common Position of 17 May 1999) and then the Process for Stability and Good Neighbourliness in the South-Eastern Europe (Council Common Position of 16 June 2000 repealing Common Position 98/633/CFSP), although the first initiative was launched at the Royaumont summit in 1995. Cremona (1999) and Ehrhart (1999). 

  30. 30.

    In this context, the European Commission proposed the creation of a stabilization and process to enhance the existing ʿRegional Approachʾ of the European Union (EU) vis à vis these countries in the form of a new kind of contractual relation: Stabilisation and Association Agreements.

  31. 31.

    European Council in Santa Maria da Feira (19–20 June 2000), Presidency Conclusions.

  32. 32.

    As well known, this process began with the Zagreb Summit in 2000. On this occasion, the EU reaffirmed its determination to fully and effectively support the European perspective of the Western Balkan countries, and to further strengthen their reciprocal privileged relationships, including drawing on the experience of enlargement. However, the turning point was the European Council in Thessaloniki (19–20 June 2003), Presidency Conclusions, www.refworld.org/docid/3f532b584.html. Then, the Thessaloniki Summit, which brought together the heads of State or government of EU Member States and the acceding and candidate States of the Balkans on 21 June 2003, launched a high-level multilateral political forum, the EU-Western Balkans Forum, and led to the adoption of the well-known Thessaloniki Declaration, as well as The Thessaloniki Agenda for the Western Balkans: Towards European integration. This agenda has expressly provided for the accession dimension of the stabilization and association process. See Russo (2015).

  33. 33.

    In a critical view, see Burazer (2020), p. 40.

  34. 34.

    European Council of Helsinki (10–11 December 1999), Presidency Conclusions.

  35. 35.

    Markovic Khaze and Wang (2021) and Panagiotou (2021).

  36. 36.

    Sjursen (2012) distinguishes three ideal conceptions of the EU as: (i) a problem-solving entity, (ii) a value-based community, and (iii) a rights-based post-national union.

  37. 37.

    Following this perspective, Sjursen (2012), p. 505, reflects on: ‘[w]hy expand? Given the costs and risks of enlargement, why has the EU consistently chosen to expand, rather than to remain a smaller and more manageable club? And why have individual states, especially those set to pay the highest price for enlargement, not used their power to veto this process?’.

  38. 38.

    In this sense, see the considerations of Cremona (2004b).

  39. 39.

    Commission opinion (23 May 1979) on the application for accession to the European Communities by the Hellenic Republic, in OJ L 291/3, 19.11.1979, and Commission opinion (31 May 1985) on the application for accession to the European Communities by the Kingdom of Spain and the Portuguese Republic, in O.J. L 302.

  40. 40.

    Schneider (2008).

  41. 41.

    Indeed, according to Petrovic and Wilson (2021) ‘some of the new requirements which the EU demands the Western Balkan candidate states to meet in order to gain membership, such as the resolution of their ‘bilateral disputes… as a matter of urgency’, are really difficult to achieve’.

  42. 42.

    According to Riddervold and Sjursen (2006) ‘[the] Danish authorities have been particularly concerned about ensuring that the Baltic States were given the same opportunity as the Central and East European countries (CEECs) to negotiate for membership’. Furthermore, it is well known, the enlargement in 2004 was strongly supported by Germany. In this direction, see Zaborowski (2006).

  43. 43.

    Commission Opinion (19 April 1994) on the applications for accession to the European Union by the Republic of Austria, the Kingdom of Sweden, the Republic of Finland and the Kingdom of Norway, O.J. C 241/3.

  44. 44.

    Sotiris Walldén (2017), p. 4, considers that: ‘[t]ension between widening and deepening has accompanied the Union throughout its history. In the ‘good times’ this was overcome with the simultaneous advance of both processes: successive enlargements were accomplished in parallel with further steps in integration. The two processes were at times even formally linked’. On the contrary, according to Lippert (2017), p. 3 ff., widening and deepening do not go hand in hand, they are not formally interlinked processes and follow different logic. The EU grants new members a set of derogations and transitional arrangements that lead to differentiation, mainly in implementing secondary law for a limited period of time. Enlargement should be convergence not differentiated integration.

  45. 45.

    So, see Sjursen (2012), p. 516.

  46. 46.

    See the European Court of Justice (Third Chamber), Judgment (2 April 2020), Joined Cases C-715/17, C-718/17 and C-719/17, European Commission v Republic of Poland and Others, in which the Court stated that the Republic of Poland, Hungary, and the Czech Republic failed to fulfil their obligations under Art. 5(2) of Decision 2015/1523 and Art. 5(2) of Decision 2015/1601, and have consequently failed to fulfil the subsequent relocation obligations under Art. 5(4) to (11) of each of those two decisions. These decisions were adopted to establish provisional measures in the area of international protection for the benefit of Italy and Greece based on Art. 78(3) TFEU and Art. 80 TFEU. Therefore, these three countries remain in breach of their legal obligations and have shown disregard for their commitments to Greece, Italy, and other member states. See Russo (2021), p. 289. 

  47. 47.

    See for all, Bátora and Fossum (2019) p. 6.

  48. 48.

    Commission Decision 2006/928/EC (13 December 2006) establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, O.J. L 354/56.

  49. 49.

    This is the interpretation of the European Court of Justice, Judgment (29 June 1978), case C-77/77, Benzine en Petroleum Handelsmaatschappij v. Commission of the European Communities, para. 15, where the Court expressly included the principle of community solidarity among the fundamental principles of the Community; as well as European Court of Justice, Judgment (7 February 1979), case C-128/78, Commission of the European Communities v. United Kingdom, para. 12, where the Court stated that: ‘[t]he fact that a State, in consideration of its national interests, unilaterally breaks the balance between the advantages and the burdens deriving from its membership of the Community affects the equality of the Member States before the law community and causes discrimination against their citizens. This failure to comply with the duties of solidarity accepted by the Member States with their accession to the Community shakes the Community legal order from its foundations’. The same is true of the European Court of Justice, Judgment (7 February 1973), case C-39-72, Commission of the European Communities v. Italian Republic, para. 25.

  50. 50.

    The Treaty of Lisbon includes solidarity in various ways in the Preamble and among the internal-external objectives of the Union (Art. 3 TEU). Solidarity is also the basis of the mutual defense clause referred to in Art. 42, par. 7, TEU. In TFEU, on the other hand, various provisions recall the principle of solidarity as a principle on which they should be based: the common policy on asylum, immigration and border controls (Art. 67, paragraph 2, and Art. 80 TFEU), the economic policy measures to be adopted if serious difficulties arise in the supply of certain products, in particular in the energy sector (Art. 122 TFEU), and the Union policy itself in the energy sector (Art. 194 TFEU). Beyond these provisions, the Lisbon Treaty introduced a specific ad hoc rule on the solidarity clause (Art. 222 TFEU). See Russo (2021), p. 282.

  51. 51.

    As Scheppele and Kelemen (2020) underline: ‘for some EU member governments, these values no longer define the aspirational horizon. The requirements of Art. 2 are simply no longer met in all Member States’.

  52. 52.

    Fruscione (2020), p. 14, ‘the more a government is outwardly committed to the EU, the more the West will endorse it. The stability achieved is thus the absence of regime change in which the local government keeps the EU path as a goal in foreign policy, and – in exchange – the EU turns a blind eye to the fragility of its democratic system. Political stability becomes a dogma, as regime changes are excluded from the game. Therefore, instead of a genuine transition towards the consolidation of democracy, many countries in the region have been developing an authoritarian model masked with the acceptance of ‘Western values’. Western values are thus exploited to maintaining strong relationships with, and legitimacy by, EU institutions, whose failing conditionality is prolonging the transition of the Balkans’.

  53. 53.

    Wouters (2020), p. 267, also underlines ‘[i]t can be submitted that a more comprehensive approach to the other values contained in Art. 2 TEU (human dignity, freedom, pluralism, non-discrimination, tolerance, justice, solidarity, equality of women and men) may well hold the key to an accession process that is able to effectively prevent the kind of backsliding we are now confronted with’.

  54. 54.

    According to Louwerse and Kassoti (2019), pp. 225–226, ‘it is well known that the policy has developed over the years through Commission Opinions on the application for Membership of the EU, Strategy Papers, annual progress reports, Accession and European Partnerships, complemented by Presidency and Council Conclusions. It is in these Copenhagen related documents that the rule of law elements in enlargement can be found’.

  55. 55.

    Janse (2019), p. 58.

  56. 56.

    See, among others, Schimmelfennig and Sedelmeier (2005), and Hughes et al. (2004).

  57. 57.

    Dimitrova (2011).

  58. 58.

    Hillion (2011).

  59. 59.

    Enlargement Strategy and Main Challenges 2012–2013, cit.

  60. 60.

    In line with this ‘new approach’, the opening of Chapters 23 and 24 was a top priority in the negotiations with Montenegro and Serbia.

  61. 61.

    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (10 November 2015) EU Enlargement Strategy, COM(2015) 611 final.

  62. 62.

    This methodology confirms the crucial role of EU Member States, calling for a stronger political steer at the highest levels, and advancing political and policy dialogue through regular EU-Western Balkan summits and intensified ministerial contacts. Furthermore, following the introduction of this revised methodology, negotiating chapters are now divided in six thematic clusters. The first concerns the Fundamentals.

  63. 63.

    See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (19 October 2021) 2021 Communication on EU Enlargement Policy, COM(2021) 644 final, that states: ‘the Western Balkan countries are now closely associated with the work of EU agencies in the field of justice and home affairs. Structured cooperation with the EU on migration and on security issues is ongoing, especially on counter-terrorism, prevention of radicalisation and violent extremism, and organised crime’.

  64. 64.

    Pech (2011), pp. 10–11, considers that: ‘[i]n the EU’s constitutional framework, the rule of law is not only referred to as a common foundational value but also used as a benchmark to assess the actions of candidate countries and as a transversal foreign policy objective […] The EU, however, has not been solely concerned with increasing compliance with the rule of law in candidate countries. In fact, the EU Treaties initially assigned to the EU’s foreign and security policy and development cooperation policy the same objective of developing and consolidating the rule of law even before formally requiring that any European country wishing to join the EU must respect the principles on which the EU is founded’.

  65. 65.

    See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (12 October 2022) 2022 Communication on EU Enlargement Policy, COM(2022) 528 final.

  66. 66.

    Hogić (2020), pp. 198–199.

  67. 67.

    As suggested, although ‘monitoring reports increasingly acknowledge the importance of societal transformation needed for the rule of law to take root in the applicant states […] this soft rule of law element has not (yet) been incorporated in the Commission’s understanding of and approach towards the rule of law’. In this sense, see Louwerse and Kassoti (2019) and Hogić (2020), p. 197.

  68. 68.

    See again Hogić (2020), p. 222.

  69. 69.

    See Pech (2016), who emphasizes this disconnection.

  70. 70.

    Some examples of legal mechanisms are the infringement proceedings pursuant to Art. 258 TFEU and preliminary references according to Art. 267 TFEU, apart from the political mechanism of the breach of values procedure which includes a preventive and sanctioning mechanisms, respectively in Art. 7, paras. 1 and 2 TEU.

  71. 71.

    Communication from the Commission to the European Parliament and the Council (19 March 2014) A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final.

  72. 72.

    Even the Council launched the annual ‘Rule of Law Dialogue’ in 2014: ‘[h]aving criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels’. So, Kochenov and Pech (2015).

  73. 73.

    From the 1986 Les Verts judgment where the European Court of Justice (ECJ) first referred to the then EEC as a community based on the rule of law, an increasing number of Treaty provisions and EU secondary law, also with reference to external action, translate the core components of the rule of law, thanks to the important clarificatory jurisprudence of the ECJ. See for this reconstruction Pech and Grogan (2020).

  74. 74.

    ‘The precise content of the principles and standards stemming from the rule of law may vary at national level, depending on each Member State’s constitutional system. Nevertheless, case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law’. See also the Communication from the Commission to the European Parliament, the European Council and the Council (3 April 2019) Further strengthening the Rule of Law within the Union, State of play and possible next steps, Brussels, COM(2019) 163 final.

  75. 75.

    Halmai (2019).

  76. 76.

    Recital 6 of the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council (16 December 2020) on a general regime of conditionality for the protection of the Union budget, O.J. L 433/1, states that: ‘[w]hile there is no hierarchy among Union values, respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa is contested by the same member States’. See Nascimbene (2021).

  77. 77.

    Recital 3 of the same Regulation states: ‘the rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and other applicable instruments, and under the control of independent and impartial courts. It requires, in particular, that the principles of legality implying a transparent, accountable democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts; and separation of powers, be respected’, thus closely reflecting the findings of the Court over the years as regards the rule of law. It cannot be ignored that this regulation has been challenged by Hungary and Poland that brought actions for annulment on 11 March 2021, Hungary v European Parliament and Council of the European Union (Case C-156/21) and Republic of Poland v European Parliament and Council of the European Union (Case C-157/21).

  78. 78.

    European Parliament resolution (10 March 2022) on the rule of law and the consequences of the ECJ ruling, 2022/2535(RSP).

  79. 79.

    See the European Court of Justice, Opinion of Advocate General Collins (20 January 2022), Case C-430/21, RS.

  80. 80.

    As well known, the European Commission formally launched the process of applying the conditionality mechanism against Hungary on 27 April 2022. On 18 September 2022, the Commission proposed to the Council the budgetary protection measures to be taken. See Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, in OJ L 325, 20.12.2022.

  81. 81.

    Timmermans (2015): ‘it’s part of where we come from and where we need to go. It makes us what we are’.

  82. 82.

    According to Damjanovski et al. (2020) p. 7: ‘[t]he novel rule of law conditionality has tried to streamline and integrate a set of procedural and institutional criteria which have been uniformly imposed on the candidate countries. However, this endeavour has been exceptionally challenging especially with regard to the determinacy of the criteria on the judiciary in Chapter 23 in view of the very limited EU legislation in the area. Apart from various Treaty articles (Arts. 2, 7 and 10 TEU) and provisions of the Charter of Fundamental Rights of the European Union (CFR) (Arts. 47–50), which are all generic, the EU accession requirements regarding the state judiciary have heavily relied on external sources such as the United Nations or the CoE’.

  83. 83.

    Halmai (2017), p. 3, ‘which might be one of the reasons for non-compliance after accession in some of the new Member States’.

  84. 84.

    Kochenov and Dimitrovs (2021).

  85. 85.

    According to Sotiris Walldén (2017), p. 22, ‘[i]n this way pressure for democracy would be maximised and accession could be decided on the basis of the basic prerequisite (which admittedly is not there in many of the countries), not of a multitude of expediencies that now dominate’.

  86. 86.

    Burazer (2020), p. 29.

  87. 87.

    Commission Decision 2006/928/EC (13 December 2006) establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, O.J. L 354/56.

  88. 88.

    Equally, the countries are partial members given that they were not members of the Schengen and the Euro area.

  89. 89.

    European Court of Justice (Grand Chamber), Judgment (18 May 2021), Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociaţia ‘Forumul Judecătorilor din România’ and Others v Inspecţia Judiciară and Others and, more recently, Judgment of the Court (Grand Chamber) of 21 December 2021, Criminal proceedings against PM and Others, Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 where the Court stated that this mechanism ‘is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Art. 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Art. 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports’.

  90. 90.

    Basheska (2014), pp. 95–96.

  91. 91.

    Schimmelfennig (2014).

  92. 92.

    With regard to Hungary’s official position on EU enlargement, see Huszka (2017).

  93. 93.

    Noutcheva and Aydin-Düzgit (2012).

  94. 94.

    See Traune (2009).

  95. 95.

    European Commission (6 February 2018) A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, COM(2018) 65 final.

  96. 96.

    Dimitrova and Kortenska (2017).

  97. 97.

    Rusu et al. (2014).

  98. 98.

    See EU-Western Balkans Summit, Tirana Declaration, 6 December 2022.

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Russo, T. (2023). The Security Implications of Enlargement on EU Fundamentals. In: Russo, T., Oriolo, A., Dalia, G. (eds) Solidarity and Rule of Law. European Union and its Neighbours in a Globalized World, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-031-29227-9_4

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