Re-joining the EU – (1) Assessing the Application
We know two things about the UK’s return to the EU: it will start with a Prime Minister requesting membership, and it will end with the entry into force of a treaty. What happens in between? Dr Paul Bowers provides a very quick overview, then looks at the first part of the process, the assessment of an application. In the second part, he will look at the negotiations over compliance with EU law that follow and then follow the process to its conclusion in an accession treaty.
Note: Both parts of this blog have been posted to the London4Europe website, for those who wish to read both parts together. The second part will be e-blasted to our audience next week.
The EU accession process takes an applicant from being unsuitable for membership to being suitable for membership.
This process is guided by provisions in the Treaty on European Union, general treaty law, and political positions embodied in Presidency Conclusions and Commission reports. Note that, just as with political positions, if all parties to an international treaty agree, its provisions may be modified, subject to any countervailing law.
The TEU recognises the concept of a former member state wishing to rejoin in Article 50 (5):
“If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
Article 49 is the standard procedure for new applicants.
A state wishing to join the EU addresses its application to the European Council, represented by the state holding the rotating Presidency. The Council consults the European Commission (this is the main part of the process, discussed below), and awaits consent of the European Parliament. The Council may then agree to admit the applicant by unanimity.
A treaty is then signed and ratified, and membership begins on the specified day.
From applicant to candidate
Let’s break down this formal process into reality.
When an application is made, the rotating Presidency informs the Council, and the General Affairs Council approaches the Commission to ask whether the applicant meets the accession criteria.
Article 49 sets some of these criteria.
The applicant must be a “European State.”
It must respect the values of the Union, in Article 2, and it must be committed to promoting them. These are non-specific (“freedom”, “equality”). Applicants will typically show commitment to these by membership of the Council of Europe, and through being party to various treaties such as the International Covenant on Civil and Political Rights, as well as through domestic legislation.
In addition, there are the Council’s accession criteria, known as the Copenhagen criteria, adopted in 1993:
- Political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities;
- Economic criteria: a functioning market economy and the capacity to cope with competition and market forces;
- Administrative and institutional capacity effectively to implement the acquis communautaire and ability to take on the obligations of membership.
The political criteria are now regarded as being incorporated into the TEU and Charter on Fundamental Rights (see, e.g., Commission Opinion on Croatia’s application, 12 October 2011).
The Copenhagen criteria were designed with the former Communist states of Central and Eastern Europe in mind. They do not amount to the Commission writing every detail of human rights law or the electoral system of the applicant, where it lacks competence. They are a check that the applicant state is a stable free market democracy with full control over its territory and institutions so that EU law can be implemented in practice.
Article 49 states that these eligibility conditions “shall be taken into account”. The Council stated, at Luxembourg in 1997, that while the political criteria are a prerequisite for opening negotiations, the economic and administrative criteria “have been and must be assessed in a forward-looking, dynamic way” (Presidency Conclusions, para 25, Luxembourg European Council, December 1997).
At this stage, the Commission is assessing whether the applicant is suitable, not for membership, but for negotiations towards membership.
The Commission makes its recommendation either to grant candidate status or to ask for changes on the basis of this specific assessment against the various criteria.
The candidacy recommendation needs to be approved by the GAC and the European Council, unanimously, in order to proceed.
After this, the applicant state becomes a “candidate” for membership of the EU.
It should not be a stretch for any developed democracy to satisfy the Treaty and Copenhagen criteria, and it is unlikely that a UK intent on rejoining would encounter difficulties. An exception would be if it had left the ECHR, but it is a reasonable assumption that, in that case, a Rejoin Government would wish to accede to the ECHR in any case (which is very swift).
What follows is the more intricate process of achieving compliance with EU law. We will look at this process in Part 2.
Dr Paul Bowers is a member of the European Movement’s National Council and is a former Researcher in the House of Commons Library.
This blog is digested from a longer, more detailed account, which considers arguments about different options such as single market membership:
London4Europe blogs are edited by Nick Hopkinson, Vice-Chair. Articles on this page reflect the views of the author and not necessarily of London4Europe.
London 4 Europe