On 1 May 2014 it was exactly ten years ago that ten new countries joined the European Union: Cyprus, Malta, Hungary, Slovenia, Poland, Czech Republic, Slovakia, Lithuania, Latvia and Estonia. The enlargement process has significantly shaped and transformed not only acceding countries’ legal, economic and political system, but also that of the EU.
By Kati Cseres
In what has been widely regarded as a historical moment, on 1 May 2004 the East and West of Europe were united after decades of separation, marking the beginning of an economic and political challenge for both the EU and its Member States. At the same time, with the accession ended an exceptionally large-scale legal exercise: the alignment of ten countries’ legal systems and specific legal rules to that of EU law. The largest enlargement of the EU so far increased the number of EU Member States from 15 to 25 (and later, with two subsequent enlargements, to 28) and added 70 million new citizens and nine more official languages to the EU.
The fact that the ten countries joined the EU on that day, in principle meant, that harmonization of the candidate countries’ domestic rules with EU law had been successfully accomplished. However, ten years after the “big bang” enlargement one of the important lessons learned is that the day of accession is not, and should not be the end of Europeanizing national legal rules and perhaps more importantly, that this process should be more of a well-balanced alignment between the (to-be) Member States’ legal rules, traditions and policies and that of the EU than a hierarchically imposed process from above.
An invisible birthday
On 1 May 2014 President Barroso of the EU Commission and Enlargement Commissioner Štefan Füle both emphasized that the 2004 enlargement has brought stability and reunited Europe after years of artificial division during the cold war; it made the EU the world’s biggest single market and increased trade between Member States, thus contributing to economic growth and strengthening further Europe’s weight in global affairs. The EU’s eastern enlargement firmly anchored democracy, freedom and the rule of law for millions of people who had lived behind the Iron Curtain.
Ten years ago the acceding countries extensively celebrated the day of accession with numerous fireworks and festivities. This reflected the new Member States’ highly positive attitude towards the EU and towards their future within the EU’s legal, political and economic order. On 1 May 2014 however, few of those countries celebrated and some just modestly commemorated the event. The anniversary is more of an “invisible birthday” as a journalist in one Hungarian daily newspaper has formulated it when referring to the Hungarian government’s silence on the tenth anniversary.
Eastward enlargement: a case of robust Europeanization?
There are various economic and political reasons for this silence and these are also closely connected to turbulent times within the EU at large as well as global developments of the last decade such as the financial crisis. Many commentators have analysed statistics on changes of economic figures such as GDP per person between 2004 and 2014 and evaluated the economic impact of EU Membership on the new Member States and their economic capability to live up to the expectations formulated in 2004. Less attention has so far been devoted to understanding the impact of accession on both the acceding countries’ and the EU’s legal rules and governance mechanisms of the enlargement process.
The EU’s eastward enlargement was bigger, and both more intrusive and transformative than earlier enlargements. Transition from a command and control economy and totalitarian rule to a market economy and compliance with the rule of law was a distinctive characteristic of the process of EU law transfer in the Central and Eastern European countries (CEECs). In these countries, implementation of EU rules was exceptional due to the explicit top-down transfer of legal rules and due to the fact that it was clearly governed by strict legal, economic and political conditions set by the EU. The strong incentive of membership was cemented in this EU conditionality, i.e. the EU’s legal rules and governance modes were designed in a way that external actors sought to obtain candidate or accession status or other rewards and avoid sanctions.
It is this process of Europeanizing domestic legal rules, which has been extensively analysed in order to evaluate how the new Member States’ legal systems have functioned during the last decade after their accession. However, it represents only one side of the coin that considers top-down legislation through legal transplants, neglecting the process of rule implementation and active enforcement or the constraints and failures of successful enforcement.
While the significance of European legal transplants cannot be denied, especially in legal fields such as consumer protection or environmental law where the new Member States might have been reluctant to draft and implement a minimum legal framework, the copy-pasted EU rules have not always delivered the expected enforcement due to broader legal traditions or economic, political and social factors present in these countries.
Accordingly law enforcement of EU law-based legal rules has not always been matched with effective administrative organization and institutional capacity and therefore the extent to which European rules were practically applied at the national level in the institutional and regulatory environment of the new Member States may not correspond to the objectives specified in the European legislation. In this sense, the enlargement of 2004 lacked rigorous monitoring of implementation and not just literal transposition of EU rules.
Lessons learned ten years on
The experience of the 2004 enlargement indicated that EU influence was the most manifest and direct on substantive law. But there was a significant difference between the black letter of the law and its active enforcement. Falkner and Treib, in their 2008 study on new Member States’ compliance with EU law, concluded that the new Member States formed a “world of dead letters” among the 27 Member States. This specific ‘world of compliance’ is characterized by politicized transposition processes, systematic application and enforcement problems. This can be confirmed even in an area such as competition law, which directly enters national legal systems and leaves Member States relatively little room for diverging legislation.
Having learned from these pitfalls, the EU has revised its enlargement policy since 2004. In what is now called the new approach in enlargement policy the EU has shifted its focus to implementation and actual enforcement of the adopted legislation candidate countries. Administrative and institutional capacity building has become a cornerstone of credible enforcement of EU law since the enlargement of 2004. In other words, the previously endorsed formal rule adoption during pre-accession has now been replaced by tracking the records of implementation and actual enforcement of the Europeanized rules.
This new governance mode has made the accession process long and exhaustive for candidate countries, as it was the case with Croatia, but it has also raised the question whether the EU can continue to influence concrete law enforcement in its Member States post-accession and if so how? This question has especially been topical with regard to issues of rule of law and democratic governance, which also became centre pieces of the enlargement process, addressing crucial issues of justice, security and fundamental rights.
Once full membership starts conditionality ends. As there is no “political acquis” “backsliding” from democracy and other EU values represents a real risk. Hungary’s present constitutional developments form one instance of such a major challenge of the EU as a political and constitutional sphere. For the first time, an EU Member State so clearly violates the fundamental values and principles of democracy and the rule of law. For the first time, a serious breach of the European common values as laid down in Article 2 TEU is at stake. Hungary’s case indicates that the enlargement policy has significant effects on the EU’s general law and governance framework well beyond the process of accession. In fact, it indicates that accession is not the end of the process and that post-accession compliance became more critical to prove the effectiveness of Europeanization and more generally the EU’s governance mechanisms used during accession.
This is perhaps the “flexibility” that Günther Verheugen, former Commissioner for EU enlargement in 2004, meant when he was asked by a Hungarian newspaper what he would have done differently in 2004. He said that instead of unconditional and complete transposition of the acquis communautaire into domestic legal systems, the EU should have provided more room for national solutions to legal problems within the frameworks of the envisaged objective.
Ten years ago the major legislative process of formal rule transposition had been closed in the ten new Member States and the fact that they were officially declared ready to enter the prestigious European club gave a good opportunity to celebrate. The formal rules had been purposefully transplanted into the the new members’ legal systems and could be changed “overnight” to meet the EU conditions of accession. But their actual application depends on the informal rules of the receiver state’s legal traditions, customs and culture and the broader economic, social and political context. The process of absorbing the transplanted formal rules and effectively apply them in their informal context is a more invisible and ambiguous process, one which may not prompt similar birthday parties as ten years ago, but one which will pass through various stages of aligning the new Member States’ legal rules to that of the EU and also creating effective feedback mechanisms into EU law.
Dr. Kati Cseres is Associate Professor of law at Amsterdam Centre for European Law and Governance. Her personal page can be accessed here.acelg