2 Association as a stepping-stone to membership
2.3 P RINCIPLES OF PRACTICE AND ASSOCIATION AS A FLEXIBLE AND EVOLVING TOOL
Efforts to establish theEEC’s approach on association were put forth as soon as it was created. What follows is a brief account of the Member States’ chang- ing views on the nature and aims of association over time, as well as an endeavour to identify some of the principles of practice that have not changed since their inception.
The founding six Member States of theEECconsidered the idea to create
a European free trade area with otherOEEC(Organisation for European Eco-
nomic Co-operation) countries, which was referred to as the European Eco- nomic Association at the time. To that effect an Interim Committee was estab- lished already back in 1957 in order to coordinate the position of the six on what such association should entail. It was agreed that an association should go beyond a free trade area to include the coordination or harmonization of
149 Schermers defined mixed agreements as follows: “A mixed agreement is any treaty to which an international organization, some or all of its Member States and one or more third States are parties and for the execution of which neither the organization nor its Member States have full competence”. H. G. Schermers, “A Typology of Mixed Agreements,“ inMixed Agreements, ed. D. O’Keeffe and H. G. Schermers (Kluwer, 1983), 25-26. For a comprehensive and up-to date account of challenges posed by mixed agreements, see C. Hillion and P. Koutrakos,Mixed Agreements Revisited: The EU and its Member States in the World(Oxford: Hart Publishing, 2010).
150 Phinnemore,Association: Stepping-Stone or Alternative to EU Membership?: 28.
151 An association council is composed of representatives of the Council and of the government of the associate state; an association committee is composed of Commission officials and senior civil servants of the associate state; and a joint parliamentary committee contains parliamentarians from both the European Parliament as well as the national parliament of the associate state. See, ibid., 26-27.
Association as a stepping-stone to membership 39
commercial policy, the conditions of production, as well as provision of
adequate safeguards.153 This list was extended in the ‘Ockrent Report’ of
October 1958 to include the coordination of trade policies, rules on competition, the harmonization of social conditions and rapprochement of legislation, the convergence of economic, and free movement of workers,154which led to the
collapse of the talks with countries of theOEEC, as the list was considered to be too ambitious. The Report emphasised the following principle, which was to govern negotiations and their conclusion. It provided that “[the European Economic Association] Agreement must not in any way prejudice either the
content or the implementation of the Treaty of Rome”.155 In other words,
the implementation and safeguarding of the Treaty of Rome had priority. The fear the associations could slow down or compromise theEEC’s own develop- ment led to the exclusion of associates from participation from theEECinstitu-
tions.
As Phinnemore succinctly summarizes, the basic principles that emerged during the first few years regarding the use and content of association agree- ments were as follows: “first, no association should impede integration within theEEC; secondly, association should not involve simply a free trade area, but entail policy coordination if not harmonization; and thirdly, involvement of
the associate in the EEC’s internal decision-making processes was not on
offer”.156 These principles can be deduced not only from the early reports
of the European Parliament, but also from the content and structure of the
first two Association Agreements with Greece (1961) and Turkey (1963).157
Member States’ views on association in the 1960s and 1970s did not go beyond these principles. Neither the Member States nor other community institutions managed to formulate a consistent policy in this period.
One of the important differences of opinion was on the issue whether association should be made available exclusively to those states aspiring to become members in the future or whether it should also be employed as a permanent, long-term alternative to membership. The divergence of opinion is visible in the early reports of the European Parliament. While the Birkelbach
153 L. N. Lindberg,The Political Dynamics of European Economic Integration(Stanford and London: Stanford University Press & OUP, 1963). 141-42.
154 What is referred to, as the “Ockrent Report” in the literature is a Memorandum of the Council of Ministers of the EEC, of 17 October 1958, forwarded to the Intergovernmental Committee of the OEEC for the establishment of a free-trade area in Europe. Available online at: http://www.cvce.eu/en/collections/unit-content/-/unit/02bb76df-d066-4c08-a58a- d4686a3e68ff/c517d312-8554-4e08-9c75-ce5a347fd619/Resources#d697fac3-ec53-4c75-b7dc- eaf90db58e8c_en&overlay
155 Ibid.
156 Phinnemore,Association: Stepping-Stone or Alternative to EU Membership?: 31.
157 Agreement establishing an Association between the European Economic Community and Greece (Athens Agreement), OJ 26/294, 18.2.1963; and Agreement establishing an Associ- ation between the European Economic Community and Turkey (Ankara Agreement), OJ 113/1, 24.12.1973.
Report (1961) outlined the association possibilities with theEEC,158it emphas-
ized that “the norm for European states should beEECmembership and not
association”.159 However, two years later a second report by the European
Parliament, the Blaisse Report (1963) was published. While acknowledging the view held by some that “an “association” agreement can be concluded only with countries which later intend to become full members of the Com- munity”,160 in its following page the Report states that association is also
possible “for countries which, though unable or disinclined to join the Com- munity, are nevertheless prepared to play their part in the integration process by harmonising their economy with that of the Community to a really appreci- able extent”.161In other words, countries, which did not wish to join the
EEC,
could also become associates, provided they were ready to commit to a certain degree of integration.
Despite the existence of supporters of both views, the prevailing, yet unofficial view in 1960s, was that association had to be limited to less devel- oped countries, such as Greece and Turkey, which could use the relationship to develop their economies and become members in the future. That can be deduced even from the first two concluding paragraphs of the Blaisse Report. While acknowledging there is no reason why the applications of the neutral countries (Austria, Sweden and Switzerland) should not be considered, it stated that:
‘The Treaty of Rome provides for the association of non-member countries, although
what its authors had in mind was perhaps more a temporary association of countries still not sufficiently developed economically to become full members. Thus the association with Greece is undoubtedly the purest form of application of Article 238.’162
The principles mentioned above became formal principles in 1987 when the Commission laid down its position on the future ofEC-EFTArelations.163These
principles, which were referred to as the Interlaken Principles, envisaged
158 The first possibility was that of an association based on a customs union leading to possible future membership; the second possibility was an association based on a free trade area; and lastly, a relationship based on a special economic cooperation agreement. See, M. Willi Birkelbach (Rapporteur), “Rapport fait au nom de la commission politique de l’Assemblée parlementaire européenne sur les aspects politiques et institutionnels de l’adhésion ou de l’association à la Communauté“ (Birkelbach Report), 19 December 1961, pp. 25-28. Available online at: http://www.cvce.eu/content/publication/2005/6/1/2d53201e-09db-43ee-9f80- 552812d39c03/publishable_fr.pdf
159 Phinnemore,Association: Stepping-Stone or Alternative to EU Membership?: 31.
160 P. A. Blaisse, “Report prepared on behalf of the Committee on External Trade on the common trade policy of the EEC towards third countries and on the applications by European countries for membership or association”, European Parliament Working Papers, No 134, 26 January 1963, p. 31.
161 Ibid, p. 32.
162 Emphasis added. Ibid, pp. 35-36.
Association as a stepping-stone to membership 41
“priority for internal integration, preservation of the Community’s autonomous powers of decisions and the need to achieve balanced results (a fair balance between benefits and obligations)”.164 A second set of principles came out
from the Commission proposals for Europe Agreements (EAs) with the Central
and East European Countries (CEECs). The conclusion of such agreements was to take place on the condition that prospective associates gave “practical evidence of their commitment to the rule of law, respect for human rights, the establishment of multi-party systems, free and fair elections and economic liberalization with a view to introducing market economies”.165The commit-
ment to democracy and the latter principles, (which later in 1993 were pro- claimed officially as the “Copenhagen criteria”), have always been one of the unwritten prerequisites for establishing an association, however, this was made explicit only in 1990.166
The Commission’s proposals on theEAs undoubtedly reaffirmed earlier
principles. However, according to Phinnemore, they deviated in one important respect from the earlier requirement that an associate be a democracy. He argues that Spain was seen as ineligible for association in 1960s not only because it was not a democracy, but also because association at the time was seen as stepping-stone to membership. Whereas in the case of theCEECs, the
EAs were “proposed as sui generis agreements and not as pre-accession agree-
ments”.167 Even though future membership was not entirely ruled out, at
least in the earlierEAs (those with Hungary, Poland, the Czech and Slovak
Federal Republic), the link between association and membership was not explicitly acknowledged. It was only after the 1993 Copenhagen European Council that theEAs were reoriented as pre-accession tools.168
One of the most creative uses of “association” as a tool has been within the Stabilisation and Association Process (SAP) initiated in 1999,169 with the
164 Bulletin of the European Communities, Vol. 5 – 1987, p. 65.
165 European Commission, “Association Agreements with the Countries of Central and Eastern Europe: A General Outline”, COM(90) 398 final, Brussels, 27 August 1990, p. 20. 166 C. Hillion, “The Copenhagen Criteria and their Progeny,“ inEU Enlargement: A Legal
Approach, ed. C. Hillion (Oxford, Portland, Or.: Hart Publishing, 2004); Phinnemore,Associ- ation: Stepping-Stone or Alternative to EU Membership?: 39.
167 Phinnemore,Association: Stepping-Stone or Alternative to EU Membership?: 39. See also, M. Maresceau, “A Typology of Mixed Bilateral Agreements,“ inMixed Agreements Revisited: The EU and its Member States in the World, ed. Christophe Hillion and Panos Koutrakos (Oxford: Hart Publishing, 2010), 18.
168 See P.-C. Müller-Graff, “East Central Europe and the European Union: From Europe Agreements to a Member State Status,“ inEast Central Europe and the European Union: From Europe Agreements to a Member State Status, ed. P.-C. Müller-Graff (Baden-Baden: Nomos, 1997), 16; Inglis, “The Europe Agreements Compared in the Light of Their Pre-accession Reorientation,“ 1173; Maresceau, “A Typology of Mixed Bilateral Agreements,“ 18. 169 Communication from the Commission to the Council and the European Parliament, on
“The Stabilisation and Association Process of countries of South-Eastern Europe (Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, former Yugoslav Republic of Macedonia and Albania”, COM (1999) 235 final, Brussels, 26.05.1999.
purpose to stabilize and democratize the Western Balkans by offering “a perspective ofEUmembership”170once the Copenhagen criteria are fulfilled.
Hence, conditionality is the cornerstone of SAP and its novelty was that it applied even in the absence of any contractual links between theEUand the
countries of the region.171 Blockmans calls this “a graduated process”, as
increasing levels of conditionality apply from the start of negotiations to the conclusion of the Stabilisation and Association Agreements (SAAs) and later until eventual accession.172As a result of this process
SAAs were signed with
Croatia (2001), Macedonia (2001), Albania (2006), Montenegro (2007), Bosnia and Herzegovina (2008), and Serbia (2008). Negotiations for aSAAwith Kosovo started on the 28 October 2013.173 In its preamble, each of the agreements
confirms that the respective associate is “apotentialcandidate forEUmember- ship”,174 thereby creating officially an additional status for states aspiring
to join theEU.
In short, this overview illustrates the changing views and policies in the
EUon what association should entail. There were always diverse views on
the matter, as illustrated by the early Parliamentary reports mentioned above. While the prevailing view in that early period was of developing association as a relationship to assist less developed countries, such as Greece and Turkey, to build their economies so as to prepare them for full membership in the future, theEAs of the early 1990s were far less ambitious. However, no matter what the initial intention was, as far as association agreements signed with European countries were concerned, they could (and often would) be reoriented towards attaining membership as soon as consensus to that effect appeared. Not only theEAs, but also the 1995 enlargement to theEFTAcountries is a good illustration of the fact that, more often than not associations with European countries serve as a road that sooner or later seems to lead toEU
membership.
170 See, Common Position concerning a Stability Pact for South-Eastern Europe 1999/345/CFSP, OJ L 133, 28.05.1999, pp. 1-2.
171 Another novelty was the paramount importance given to regional cooperation. While cooperation between the CEECs was encouraged, it was considered crucial for the stabilisa- tion of the Western Balkans. Hence, it constituted an explicit condition that reappeared in the SAAs again and again. See, S. Blockmans, “Western Balkans (Albania, Bosnia-Herze- govina, Croatia, Macedonia and Serbia and Montenegro, including Kosovo),“ inThe European Union and Its Neighbours: A Legal Appraisal of the EU’s Policies of Stabilisation, Partnership and Integration, ed. S. Blockmans and A. Lazowski (The Hague: T.M.C. Asser Press, 2006), 338. 172 S. Blockmans, “Consolidating the Enlargement Agenda for South Eastern Europe,“ in Reconciling the Deepening and Widening of the European Union, ed. S. Blockmans and S. Prechal (The Hague: T.M.C. Asser Press, 2007), 67-68.
173 See European Commission, MEMO/13/938, 28.10.2013. Available online at: http://europa. eu/rapid/press-release_MEMO-13-938_en.htm
Association as a stepping-stone to membership 43