Editorial of July 2022

By Pedro Madeira Froufe, Alessandra Silveira, Joana Covelo de Abreu (Editors), Carlos Abreu Amorim (Professor of Administrative and Environmental Law, UMinho) and Tiago Sérgio Cabral (Managing Editor) 

“European bloc” vs. “European network” – on the enlargement of the EU

The European Council of 23-24 June 2022 approved the granting of “candidate for accession” status to both Ukraine and Moldova. Prior to the granting of such status, there was a summit between the EU and the Western Balkans with the aim of preparing the environment and conditions for another prospective enlargement, involving Albania, Bosnia, Serbia, North Macedonia, Montenegro and Kosovo. Some of these States (such as Albania, North Macedonia, Montenegro and Serbia) are already formal candidates for membership – Turkey too possesses such a status. Georgia had formally expressed its wish to join and therefore applied for candidate status. However, the European Council felt that, for the time being, and particularly in view of the few guarantees provided that the problems linked to corruption would be overcome relatively easily, it was not yet appropriate to consider it as a candidate State, although it was felt that it should be given a “European perspective”.

It should be noted that the accession of a new State to the “European bloc” follows a set rules and is part of a dynamic of political consensus and commitment on the part of both parties –  i.e. the Union and the candidate State – and it is certain that this animus or firm and consensual political will ultimately be decisive, irrespective of compliance with the existing and legally enshrined criteria [Article 49 of the Treaty on European Union (TEU)]. Thus, a candidate State will not succeed if it does not profess, clearly and with commitment, the values which guide integration and which are a kind of “identity” of the Union: democracy, freedom, human dignity, equality, rule of law, respect for human rights and guarantee of protection of minorities (in essence, the values referred to in Article 2 of the TEU).

In addition, since the 1993 Copenhagen Council, there have been obligations for those wishing to join – the so-called “Copenhagen criteria” – which have always been reaffirmed as necessary conditions for the success of any membership application. These necessary criteria/conditions include i) the stability of the candidate State’s institutions so that their functioning guarantees the effectiveness of the rule of law; ii) the existence of a market economy based on economic freedom and competition; and iii) the ability to adapt the internal legal system to EU law, which means that the candidate State must prove its adaptability to the requirements of integration law – in other words, assimilate and integrate (in technical terms and effectively) the so-called European legal acquis.

Verifying compliance with these requirements is a lengthy and rigorous process. Croatia (the last State to join, in 2013) took about a decade to go through this process. It is clear that these rules and this procedure for successful accession were constructed and implemented in a different European framework from the current one. They are, in essence, rules and dynamics built on an assumption of normality and stability, at a time when Europe was still experiencing the “illusion of the end of the war”!

February 2022 and the invasion of Ukraine by Russia mark the beginning – not yet very perceptible – of a new era for European integration. Does this – i.e. the prospect of a new post-war European order – mean that we should forget about the rules and requirements for the accession of a new State? Or that the accession of, in this case, Ukraine, should be facilitated? No, not at all. Simply, the mental and normative framework that we may be obliged to use to admit Ukraine into the Union in the future may not be the same as the one we are currently using… In other words, the very idea of European integration – based on the EU law that we have and on the history of the EU that has taken place, always evolutionarily, over the last 71 years – may change, more or less radically.

For the first time in its history, the Union is faced with a crisis that forces it to return to its origins and its initial political impetus: to avoid war by re-establishing a new order, promoting structural interconnections of peace between nations and rebuilding a Europe on the rubble of wars. The absence of an effective and solid common European defence and security policy (Article 42 TEU), for example, can also be explained politically by this. The focus – on the assumption of an “end-of-war era” – was primarily on economic development, the quality of life of the populations, democracy and the rule of law. It was, in essence, the flourishing and strengthening, updated and sophisticated, of the seeds of civilisation sown by the Enlightenment.

Now, a novel post-Ukrainian War European order could introduce new concerns and objectives for integration, primarily of a geopolitical nature, which are instrumental in the grand design of preserving “the European way of life”. The defence of a space of European affirmation and “way of life” may imply a proactive tendency of the integration movement. In other words, it may make it necessary (even urgent) not only to assist the consolidation of democracies that adhere to European values (Article 2 TEU), but also to encourage and participate, actively, in the very construction, almost from scratch, of those communities/States that long for and strive to be “European”.

This may imply different rules and criteria for implementing the new accessions (and, inevitably, a modification of the Treaties). Or it could be to work along the lines proposed by Emmanuel Macron in his speech to the European Parliament on 9 May 2022, i.e. to create other organisations which, in conjunction with and complementing the Union, would form a European area of common living and political cooperation. For example, a European Political Community that could even be an antechamber to effective integration into the Union. Basically, a new Europe understood, above all, as a “European network” of relations – a dynamic, democratic and civilisational European “networking”. An integration that is admittedly “multi-speed”, to better facilitate union around what is essential.

As President Macron also said, perhaps it does not make sense that we have necessarily to invite and involve all the neighbours of the street we share, to decide issues that only concern our particular condominium… Although we all live and want to continue living in the same street!

Picture credits: TheAndrasBarta.

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