Abstract
The majority of the rules governing the Union’s 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. 8.4), 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 being—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 exercised by the Court is exemplified by e.g. Case 93/78, Mattheus v Doego.
- 2.
See e.g. Case 55/75, Balkan-Import Export GmbH v Hauptzollamt Berlin-Packhof, paragraph 14.
- 3.
Case 12/86, Demirel v Stadt Schwäbisch Gmünd, paragraph 9.
- 4.
- 5.
- 6.
After all, the consent of a democratically elected, representative organ of the other contracting party or parties will not always be guaranteed.
- 7.
Even when this is not legally necessary, Member States often decide on mixity for political reasons. In so doing, they are able to ‘stay in the picture’ more emphatically.
- 8.
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.
- 9.
Or of the governing body of the international organisation.
- 10.
Sub-committees may be designated where useful.
- 11.
Or of the representative body (if any) of the international organisation.
- 12.
On the EU side, the platform can e.g. consist of members of the European Economic and Social Committee.
- 13.
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 and Case 30/88, Greece v Commission.
- 14.
See Case 181/73, Haegeman v Belgium.
- 15.
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. The approach applies by analogy to decisions adopted by the association council: Case C-192/89, Sevince v Staatssecretaris van Justitie.
- 16.
See Semertzi (2014).
- 17.
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.
- 18.
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.
- 19.
Compare the rulings 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).
- 20.
Which, on the aside, has served as a main motive for the denial of direct effect in the GATT/WTO case law.
- 21.
The EEA has an unusual institutional setup, 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.
- 22.
- 23.
For a richer review, using export of the acquis as a measuring rod, see Öberg (2020).
- 24.
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.
- 25.
A detailed analysis of its origin and development offers Cremona (2008).
- 26.
In the absence of concrete action plans, the ENP has not become fully operational with regard to Algeria, Belarus, Libya and Syria.
- 27.
A choice that is further queried in Van Vooren (2009).
- 28.
- 29.
See Blockmans (2018).
- 30.
Respectively Regulation 638/2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument, OJ [2006] L 310/1; Regulation 232/2014 establishing a European Neighbourhood Instrument, OJ [2014] L 77/27; Regulation 2021/947 establishing the Neighbourhood, Development and International Cooperation Instrument – Global Europe, OJ [2021] L 209/1.
- 31.
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.
- 32.
Libya joined as an observer; the Arab League holds an associated status.
- 33.
Two dossiers are bound to keep sowing discord: Morocco’s occupation of the Western Sahara and the Israel/Palestine conflict.
- 34.
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).
- 35.
See Communication from the Commission: Eastern Partnership, COM(2008) 823 final, as approved in the Joint Declaration of the Prague Eastern Partnership Summit, 7 May 2009.
- 36.
Cf. Nielsen and Vilson (2014).
- 37.
The Commission gave little 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.
- 38.
Covertly referred to in Article 49 TEU as ‘the conditions of eligibility agreed upon by the European Council’.
- 39.
Presidency Conclusions, Copenhagen European Council, 21–22 June 1993, paragraph 7.
- 40.
The requirements are worked out further in the Commission Report ‘Agenda 2000: For a Stronger and Wider Union’, Bull. EU [1997] Supplement 5, encompassing 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.
- 41.
Presidency Conclusions, Madrid European Council, 15–16 December 1995, part III-A.
- 42.
For a further analysis of these additions, see e.g. Hillion (2004).
- 43.
While Article 49 TEU makes no mention of this, it is 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’.
- 44.
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.
- 45.
Or delay it. For instance, in 2009, the opinion on the application of Albania was postponed on the request of the German government.
- 46.
The concrete dossiers can e.g. pertain to the EU rules on competition, the environment, consumer protection or the media. Their number and contents may vary; for example, during the accession process of Bulgaria and Romania, the acquis was divided into 31 chapters, while Turkey and Croatia have been confronted with a line-up of 35.
- 47.
As Mr Frits Bolkestein, a former Internal Market Commissioner, once explained.
- 48.
- 49.
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.
- 50.
By the same standard, one could question the genuine ‘European’ character of Malta and its inhabitants.
- 51.
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.
- 52.
- 53.
Communication from the Commission, Enlargement strategy and main challenges 2012–2013, COM(2012) 600 final; Communication from the Commission, A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, COM(2018) 65 final; Communication from the Commission, Enhancing the accession process—A credible EU perspective for the Western Balkans, COM(2020) 57 final.
- 54.
Already alluded to in the 1993 Presidency Conclusions formulating the Copenhagen Criteria, worked out further in the communication Enlargement Strategy and the Main Challenges, COM(2006) 649 final, Annex 1, Special Report on the EU’s Capacity to Integrate New Members, and Presidency Conclusions, Brussels European Council, 14–15 December 2006, part I.
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de Waele, H. (2023). Special Relationships in the European Neighbourhood and Beyond. In: Legal Dynamics of EU External Relations. Springer Textbooks in Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-67593-9_8
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